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Deepfakes and Our Right to Sexual Privacy

-- By KerimAksoy - 05 Oct 2019

Introduction

In just over two months, around 6 million people have watched on YouTube? the deepfake video of Bill Hader channeling Tom Cruise. Doing so is an unnerving experience. Hader, who is known for his particularly uncanny impressions, seamlessly changes faces as he pretends to be Tom Cruise. The transformation is so seamless, in fact, that it is likely that most people would be fooled into believing the person sitting in front of David Letterman is Cruise and not Hader. In this case, deepfake technology was used for a humorous, not sinister, purpose. It was clearly labeled as a deepfake video, and it depicts an interview already available online. However, deepfake technology poses serious threats to our right to privacy, especially our right to sexual privacy, and the law is not sufficiently equipped to combat it.

What Are Deepfakes?

Definition

The term deepfake is a portmanteau of "deep learning" and "fake." Such videos can be created using a Generative Adversarial Network (GAN), which is a machine learning technique that was invented to "algorithmically generate new types of data out of existing data sets." For example, this software can be fed thousands of bits and pieces of melodies or thousands of pictures of human beings, and it can then create its own song or picture of a human being that is distinct from the data sets it was fed. In the case of videos, for example, this software can be used to superimpose the face of one person onto the body of another.

Brief History

Ian Goodfellow, a graduate student, created the GAN technique in 2014 for research purposes, and it was not until late 2017 that the technology started becoming more mainstream. It was then that a Redditor by the name of "Deepfakes" started posting videos of female celebrities superimposed onto the bodies of pornographic actresses. "Deepfakes" used TensorFlow, Google's open-source machine-learning software, to build GANs with such capabilities. Other Redditors joined suit, and their Reddit thread attracted enough attention to warrant media coverage. In response, Reddit banned these users, but the cat was already out of the bag. "Deepfakes" created a free software called "FakeApp," which lets anyone easily create their own fake videos. At this point, deepfake technology was democratized - for better or for worse.

The Law of Sexual Privacy

Tort Law

There are a number of provisions in tort law, as delineated in the Restatement (Second) of Torts, that are applicable in analyzing the sexual privacy implications of deepfakes. The best rule is 652(e)- Publicity Placing Person in False Light. This provision states that a defendant is liable to a plaintiff for placing the plaintiff in a false light if: (a) "the false light in which the other was placed would be highly offensive to a reasonable person," and (b) "the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." Another highly applicable rule is 652(c) - Appropriation of Name or Likeness. This provision provides that "One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy."

State and Federal Laws

In response to a rise in revenge porn websites, 46 states and the District of Columbia have passed laws criminalizing the publication of nonconsensual pornography. So far, Massachusetts, Mississippi, South Carolina, and Wyoming are the remaining holdouts. New York's law, for example, makes it a misdemeanor to unlawfully disseminate or publish an intimate image. The perpetrator must have had the intent to cause harm, s/he must have had the intent to disseminate or publish, and the victim must be identifiable and have an intimate body part exposed, among other elements. California recently passed a law that goes further and allows a "person edited into sexually explicit material without consent to seek civil damages against the person who created or disclosed it." There are also new federal laws in the works that would "penalize distribution of malicious forgeries and impersonations, including deepfakes."

Possible Solutions

Tort Law as a Solution

The false light tort can be a strong tool in helping victims sue for damages when their faces are superimposed onto the bodies of performers in sexually explicit videos. It is admittedly reasonable to believe that a jury would find that both elements of the false light tort would be met in such cases. The first element, that the false light in which the plaintiff is put would be highly offensive to a reasonable person, is tied to changing cultural norms. Regardless, it goes without saying that most individuals, when surveyed, would find it highly offensive that a fake video of them engaging in sexual acts - or any video, even if real - is published. The second element would likely easily be met as well, since anyone creating a deepfake would do so knowingly and by mistake. However, it is another matter as to whether they knew it to be fake when simply sharing it and not creating it. Regardless, however, even if they believed it to be real, sharing such a video would put the person in a false light and they would still be liable.

The misappropriation tort is another strong tool that gives individuals control over their image, although in the deepfake context, it's not without its limits. The misappropriation needs to be for the defendant's use or benefit, and some states limit such use or benefit to commercial use. In such states, victims would be unable to sue under this tort if the perpetrator simply shares the deepfake video online and does not make any money from it. Incidental use can also be a defense, When you show a bunch of people, it’s hard for any one person to claim their specific identity was benefitted from as opposed to the group’s.

Revenge Porn and Related Laws as a Solution

Revenge porn laws are unfortunately a weak solution to the problem of deepfakes. Take the New York law, for example.

Conclusion

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