Deepfake: What are the Laws?

Deepfake rules and regulations have been developing in the recent times. The term “deepfake” comes from two separate words – deep learning and fake – which uses artificial intelligence technology to create fake pictures or videos. The creator can utilize special software programs to create the picture or video by face swapping. This has become a problem because it can violate the victim’s privacy rights and public image.

We can detect the false image by conducting a reverse-image search. So, in other words, if the fake image was made by using another image on the web, the original version should be found. The fake image may be also detected by close evaluation. So, for example, the person in the fake video may not blink or yield normal facial expressions. It may also be detected through magnification or physiological analysis.

The victim’s legal rights can be violated by the deepfake creator or publisher. In most cases, it raises an issue regarding privacy rights. In California, false light is a legal cause of action that can be used by the plaintiff against the defendant who improperly represented the plaintiff who was embarrassed or offended by those actions. The plaintiff may argue that any reasonable person in the same or similar circumstances would be embarrassed or offended. The plaintiff may bring a cause of action for defamation against the creator and argue that the false factual statement – i.e., picture or video – was not privileged and had a tendency to damage his or her reputation in the community. The plaintiff may also file a legal action for misappropriation or right of publicity of the picture or video was utilized to promote a promote or service. Now, if the plaintiff suffers from emotional distress (e.g., depression, anxiety, insomnia), then he or she may also bring a cause of action for intentional or negligent infliction of emotional stress. See for more information.

The law prohibits obscene speech since it’s not protected by the state and federal Constitutions. The courts have also held that First Amendment Free Speech rights are not absolute and there are exceptions. For example, obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawlessness, speech that violates intellectual property rights, true threats, and commercial speech are not protected.

The creation of the deepfake picture or video may constitute “civil harassment” which is a series of actions that is intended to seriously alarm, annoy, or harass the victim for no legitimate purpose. In California, Code of Civil Procedure Section 527.6 defines civil harassment and provides the prevailing plaintiff with the right to collect court costs and attorney’s fees against the losing defendant.

In California, the state legislators have introduced legislation to control these activities. For example, AB 730 makes it unlawful to utilize deepfakes to influence political campaigns. It is intended to control these activities by prohibiting a person from distributing, with actual malice, materially deceptive audio or visual media of a political candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate within 60 days of election. See Elections Code 20010(a).

AB 602 was passed to prohibit these activities by creating a private right of action against a person who intentionally distributes a photograph or recorded image of another that exposes the intimate body parts of that person or of a person engaged in a sexual act without consent. See Civil Code 1708.85(b). Congress has expressed its concerns with technology companies over their internal policies for detecting and deterring false or misleading information during political elections. In fact, some members proposed that social media platforms should be responsible for distributing misleading content.

Our law firm assists clients in matters related to privacy and cybersecurity and the related state, federal, and international laws. Please contact our law firm to speak with an internet attorney at your earliest convenience.