Cecily Zamora
Deepfakes, a portmanteau of deep learning and fake, are simulated images, audio recordings, or videos that have been convincingly altered or manipulated to misrepresent someone as saying or doing something that the person did not say or do. Deepfake technology has become increasingly sophisticated and accessible, with a wide range of applications, from entertainment to education. However, it has also been misused, leading to concerns about its potential impact on elections, personal integrity, privacy, and national security. While some countries, like China, have implemented specific regulations, others rely on existing laws related to data privacy, cybercrime, defamation, and fraud to address deepfake-related issues. As deepfake technology continues to evolve, the need for effective regulation and detection methods becomes more critical to mitigate its potential harm.
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What You'll Learn
Defamation law
Deepfakes are simulated images, audio recordings, or videos that have been convincingly altered or manipulated to misrepresent someone as saying or doing something that the person did not actually say or do. They are created using AI technology and have become increasingly sophisticated and accessible to the general population. While deepfake technology has many beneficial uses, it has also been used to cause an uproar in the public sphere, disparage political foes, create nonconsensual pornography, and execute fraudulent business schemes.
Deepfakes have been used for defamatory purposes, and as a result, there have been calls for new legislation to limit their creation and distribution. However, it is argued that legal recourse for defamation caused by deepfakes already exists in the form of defamation law. Defamation law imposes liability on those who create reputational damage through public and false statements. It requires a distinct division between statements of fact and opinion, as the falsehood must be presented as truth to be considered libel or slander. Defamation law is considered a tort (civil offense) in the United States and varies on a state-by-state basis.
In addition to defamation law, there are other legal avenues that can be used to address the misuse of deepfakes. For example, copyright law may be applicable as deepfakes are often built on recycled, copyrighted content. While the fair use doctrine permits limited use of copyrighted materials without permission, deepfakes may not fall under this exception as they have a different purpose than the original work. Non-consensual pornography laws may also be applicable in cases where deepfakes are used to create explicit content without the subject's consent. However, the enforcement of these laws can be complicated by jurisdictional issues and the anonymous nature of online content distribution.
Some countries have already taken steps to regulate deepfakes. For example, the Chinese government has enacted strict regulations called Deep Synthesis Provisions, which prohibit the creation of deepfakes without user consent and require confirmation that the content was generated using AI. In Germany, the Basic Law grants individuals the right to their own image, essentially rendering deepfakes of individuals without consent illegal. The United Kingdom has also sought to protect individuals through amendments to its Online Safety Bill, including specific bans on deepfake use.
While there are arguments for relying on existing defamation law and other legal avenues to address the misuse of deepfakes, the lack of federal regulation and the varying state-by-state laws in the United States create a complex landscape for addressing this issue. As deepfake technology continues to evolve and become more accessible, it will be important for legislation and legal frameworks to adapt and provide clear guidelines for their use and misuse.
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Copyright law
While there is currently no federal regulation specifically overseeing deepfake technology, a patchwork of federal and state laws aims to govern its use. Deepfakes are simulated images, audio recordings, or videos that have been convincingly altered or manipulated to misrepresent someone as saying or doing something they did not do.
Deepfakes have been used to disparage political opponents, create deepfake pornography, and facilitate fraudulent business schemes. They can also violate human rights, the right to privacy, and personal data protection. As such, copyright and right of publicity laws need modernizing to account for AI-enabled violations at scale.
The creation of deepfakes without permission may be considered copyright infringement. However, the fair use doctrine permits limited use of copyrighted materials without permission for certain works. Under the Copyright Act of 1976 S107, fair use is determined through a four-factor test. As the purpose of deepfake creation is inherently different from that of the original work, it meets the first criterion. U.S. courts have also upheld that content including a significant portion of copyrighted work would be considered fair use if the new work is transformative. In most cases, deepfakes may be considered transformative works, so their creators cannot be held liable for copyright infringement.
While autonomous AI creations currently lack copyright eligibility, a human director providing creative input could potentially claim joint authorship rights. If a person specifically trains an AI model to produce novel deepfakes, future case law may find this sufficient for copyright eligibility.
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Data privacy and cybercrime laws
Many jurisdictions are basing their approaches to AI-generated deepfakes on existing data privacy and cybercrime laws. For example, the UAE's cybercrime legislation punishes the modification or dissemination of personal information with the intent to defame or insult, which can be applied to deepfakes. Similarly, Saudi Arabia's cybercrime law covers a broad spectrum of illegal activities and privacy violations, with penalties for crimes affecting public order and religious values.
In Indonesia, the Criminal Code, Electronic Information and Transaction Law, and Data Protection Law collectively prohibit the use of deepfakes for disseminating false information, creating fake pornography, or defamation. These laws provide clear sanctions against both creators and disseminators of deepfake content. In Vietnam, existing legislation regulates deepfakes through protections for individual rights and prohibiting the spread of false information. Criminal charges may relate to the illegal dissemination of confidential information, slander, and humiliation.
In the United States, data privacy laws vary by state, but some, like California's Right of Publicity Law, protect individuals from the unauthorized use of their name, voice, signature, photograph, or likeness. These laws, however, were primarily designed to deal with commercial exploitation, meaning they may not fully cover non-commercial uses of deepfakes. Additionally, while defamation law imposes liability on those who create reputational damage through public and false statements, it is enforced on a state-by-state basis and is considered a civil offense rather than a criminal one.
Several states have enacted legislation to specifically target deepfakes. For example, Washington HB 1999 creates civil and criminal legal remedies for victims of sexually explicit deepfakes. Texas SB 751 makes it a criminal offense to fabricate a deceptive video with the intent to injure a candidate or influence an election. Florida SB 1798 criminalizes images of minors engaged in sexual conduct that have been altered by electronic or other means.
While there is a growing necessity for federal legislation to regulate deepfakes, some argue that legal recourse already exists in the form of copyright law and defamation law. As deepfakes are often built on recycled, copyrighted content, their creation without permission may be considered copyright infringement. Additionally, defamation law can impose liability for reputational damage caused by public and false statements.
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Child protection laws
The emergence and rapid evolution of deepfake technology have spurred concerns about its misuse, particularly in the creation of child pornography, prompting legislative efforts to protect children from this form of exploitation. While the Protection of Children Against Sexual Exploitation Act of 1977 was the first national legislation in the United States to prohibit child pornography, the rise of deepfake technology has exposed gaps in existing laws.
Deepfakes, a term derived from "deep learning" and "fake," employ artificial intelligence to generate realistic but false images, videos, or audio recordings. This technology has been exploited to create deepfake child pornography, leading to legislative responses at the state and federal levels in the United States. Several states have enacted laws specifically targeting deepfakes involving minors in sexual conduct, including Florida SB 1798, Louisiana Act 457, and South Dakota SB 79. These laws criminalize the creation, alteration, or modification of images or videos portraying identifiable minors engaged in sexual activities, aiming to protect children from this insidious form of abuse.
Additionally, Washington HB 1999 provides civil and criminal legal remedies for victims of sexually explicit deepfakes, which could include children. These legislative efforts reflect a growing recognition of the need to adapt laws to address the unique challenges posed by deepfake technology. While some scholars debate the constitutionality of banning deepfake child pornography, the emotional and psychological harm caused by such content is undeniable, necessitating robust legal protections for children in the digital age.
The absence of comprehensive federal legislation regulating deepfakes in the United States has led to a patchwork of state laws. However, this piecemeal approach may not adequately address the complex and evolving nature of deepfake technology. To effectively protect children from deepfake-related exploitation, a comprehensive federal regulatory framework is essential. This framework should criminalize the creation, distribution, and possession of deepfake child pornography, ensuring consistent enforcement across the nation.
Furthermore, the international community is also grappling with the legal implications of deepfakes. Notably, China has implemented strict regulations, known as Deep Synthesis Provisions, which prohibit the creation of deepfakes without user consent and mandate disclosure of AI-generated content. While China's approach to personal freedoms is often criticized, its proactive regulation of deepfakes stands in contrast to the lack of comprehensive legislation in other countries. Germany, for instance, upholds the general right of responsibility, granting individuals control over their image, which implicitly prohibits deepfakes created without consent.
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Civil and criminal legal remedies
While there is currently no federal regulation specifically overseeing deepfake technology, a patchwork of federal and state laws aims to govern its use. Deepfakes are simulated images, audio recordings, or videos that have been convincingly altered or manipulated to misrepresent someone as saying or doing something they did not do.
Several states have enacted legislation to regulate deepfakes, including:
- Texas SB 751, which makes it a criminal offence to fabricate a deceptive video with the intent to injure a candidate or influence the outcome of an election.
- Florida SB 1798, which criminalises images created, altered, adapted, or modified by electronic, mechanical, or other means to portray an identifiable minor engaged in sexual conduct.
- Louisiana Act 457, which criminalises deepfakes involving minors engaging in sexual conduct.
- Washington HB 1999, which creates civil and criminal legal remedies for victims of sexually explicit deepfakes.
- South Dakota SB 79, which revises laws related to the possession, distribution, and manufacture of child pornography to include computer-generated child pornography.
Other countries also offer some legal protection against the unlawful use of deepfake technology. For example, the general right of responsibility is enshrined under German Basic Law and grants individuals the right to their own image. In the UK, amendments to the Online Safety Bill include specific bans on deepfakes.
In addition to government regulation, businesses can take several steps to reduce their exposure to the risks posed by deepfakes, including defending against AI-enabled phishing and social engineering attacks, preventing AI-enabled harassment and impersonation, and educating employees about the proper use of social media and AI tools.
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Frequently asked questions
Deepfakes are simulated images, audio recordings, or videos that have been convincingly altered or manipulated to misrepresent someone as saying or doing something that the person did not actually say or do.
Deepfakes range from a viral image of Pope Francis wearing a white puffer coat to sexually explicit images of Taylor Swift, from interactive content in the educational sphere to the substitution of a lead actor in a film for their stunt double.
Deepfakes can cause significant harm by spreading misinformation, interfering with elections, inciting unrest, manipulating public opinion, and threatening privacy and personal security.
While there is no federal regulation specifically overseeing the technology, a patchwork of federal and state laws aims to govern its use. For example, Texas SB 751 makes it a criminal offense to fabricate a deceptive video intending to injure a candidate or influence an election outcome. Washington HB 1999 creates civil and criminal remedies for victims of sexually explicit deepfakes.
China, Germany, the United Kingdom, Saudi Arabia, Vietnam, and several other countries have laws or guidelines in place to address the use of deepfakes.
