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Deepfakes: A New Legal Nightmare


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Even if you don’t know what a deepfake is, you’ve probably still seen some online.

A deepfake is a video 📹 or video still in which a person in the video swaps his or her face 👱 with another’s.  You can find some impressive examples here.

How it works

Deepfake videos are created using a computer 💻 algorithm that takes the base face, or the face of the person in the video or still, memorizes it, and then allows you to swap it out with another. 

This software originated back in 2017 but was perfected in January of 2018 with the advent of FakeApp, a desktop 🖥️ application that allows people to face swap 🔃 without any computer coding skills.

What’s the problem?

Deepfakes can be incredibly funny, but it all sounds like fun and games until someone gets sued.

For example, in May of 2019, an edited video of Nancy Pelosi made its way around social media 🌐. The doctored clip shows Pelosi seemingly drunk 🍷 and slurring her words during a press conference.

This particular video led high-level law enforcement 👨‍⚖️ and scholars from around the country to conclude that deepfakes have become weaponized 🗡️. 

As deepfake technology improves with time, officials fear that it will be used to meddle in upcoming elections 🗳️ in the United States 🇺🇸 and throughout the world 🌎.

More specifically, people are concerned that deepfakers will be hired to manipulate public 👥 opinion in regards to politicians, celebrities, and other figures.

Legal implications of deepfakes

My first thought when considering the legal implications of deepfake software was copyright infringement. After all, I’d be surprised if these deepfakers were obtaining permission to post the videos they swap with.

However, a copyright infringement claim could most likely be defended 🛡️ with fair use, since deepfakers are using other peoples’ content to produce something totally original, whether it be satire or parodies.

My second instinct was defamation. 

Defamation is the publication of a false statement that causes harm to another person or that person’s reputation.

If you’re Nancy Pelosi, for example, and you are portrayed giving speeches 💬 on camera while intoxicated, that would definitely hurt your reputation and potentially affect your chances of re-election. 

That being said, I also see a defense ⚔️ to this allegation.

In America, a public figure can’t win a defamation case unless they successfully prove actual malice. In other words, in the case of Nancy Pelosi, she would have to adduce evidence 🔍 that the deepfakers acted with malicious intent to hurt her reputation. 

Additionally, the right of free speech may also defend against a defamation claim.

The third potential case against deepfakers could be the right of publicity, or one’s right to control their image for commercial purposes. 

If a deepfaker were to use a celebrity’s image to sell sweatshirts by making an ad for television or Internet, they would be capitalizing 💸 on that celebrity without his or her permission. 

Who to sue?

Considering these lawsuits also made me wonder 🤔 who Pelosi, or anyone for that matter, would sue in one of these cases.

Of course Pelosi could sue the deepfaker himself, but he most likely wouldn’t have the money 💰 necessary to cover defamation damages. So, she would look to another source. 

Most likely, Pelosi would try to use the social media platforms who posted the video.

However, in America, the Communications Decency Act 📜, title 47 section 230 prohibits the liability of social media platforms for what users post. This provides Facebook, Instagram, Twitter, and the like with protection against any lawsuit that may arise from false statements, information, or videos that appear on their platforms.

With all of these defenses and roadblocks in mind, it would be very difficult for an individual harmed by a deepfake video to recover any damages 💲 from a lawsuit.

What this means for us

The lack of effective defenses against deepfake lawsuits proves that these videos have the potential to wreak havoc on the political discourse 🗣️ throughout the world.

Additionally, deepfakes could cause a public mistrust of social media platforms as well as the individuals who appear in the videos. They could also cause people to make bad decisions based on misinformation. 

What can we do?

In response to the negative effects of deepfakes, many people are suggesting we make laws that prohibit ⛔ the videos. 

In fact, many social media lawyer are already outlawing deepfake content.

Some individuals may respond to such a law claiming that the government 🏛️ is infringing upon their free speech. When compared with political cartoons, for example, both types of expression portray politicians and celebrities in a negative light.

However, there is a significant difference between deepfaking and political cartoons: cartoons are obviously not real – they’re drawings 🖌️! Deepfakes, on the other hand, could easily be mistaken for real video footage 📽️.

Regardless of whether the law changes, the full effects of deepfaking definitely have yet to be uncovered; we’ll have to just wait and see what happens.