Deepfakes: The Effect on Women and Potential Protections

by Micah Kindred, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Revenge porn has been around since the 19th century.¹ However, with new deepfake technology, women are being subjected to this atrocity on an entirely new level.² In January 2023, a famous Twitch streamer “admitted to buying and watching deepfakes from an account that makes non-consensual, sexually explicit AI-generated videos of his colleagues in the streaming world.”³ Twitch is “an interactive livestreaming service for content spanning gaming, entertainment, sports, music, and more.”⁴ A streamer is a “person who broadcasts his or herself in real time (referred to as streaming) while playing video games.”⁵ This incident has brought light to a major issue that has come along with deepfakes: the making of nonconsensual, fake pornographic photos and videos of real women.⁶ This article will discuss the impact deepfakes and deepfake porn have had on women and how women may be able to protect themselves. Part II will provide background on deepfakes and revenge porn. Part III will discuss how the law approaches both, and how women can use the law to protect themselves in light of deepfakes being used to create revenge porn. Part IV concludes with suggestions on how the law may approach deepfake porn to protect those being affected.

II. Background

Deepfakes are “an image or recording that has been convincingly altered and manipulated to misrepresent someone as doing or saying something that was not actually done or said.”⁷ Deepfakes started in 1997, created by Christoph Bregler, Michele Covell, and Malcom Slaney as a program to alter existing videos such that the new version would have the person from the original video mouthing words they did not originally say.⁸ Deepfake technology has improved significantly since its inception, such that it “may soon be indistinguishable from authentic images.”⁹

Because of how indistinguishable deepfake videos and photos are from real versions, criminals have started to utilize the technology for nefarious purposes.¹⁰ Deepfakes have been used for cybercrime, extortion, targeted attacks, misinformation, fraud, getting around authentication methods, and threats to personal, professional, and company reputations.¹¹ Lately, scammers have started using the photos and videos people post online of themselves to create deepfakes that the scammers threaten to release or use to convince the victim that they did something they did not.¹² However, now that deepfake technology is more readily available, the public are starting to use it for varying reasons, some being relatively harmless like comedy, but others being just as concerning as the criminal acts.¹³

In 2017, the first deepfake porn videos were uploaded to a Reddit thread.¹⁴ The videos were previously released pornographic videos that someone had used deepfake technology to put celebrity faces on the pornographic actors in the original video.¹⁵ Since this video, deepfake porn has become a real concern, especially for women.¹⁶ In 2019, DeepTrace, a deepfake detection company, published a report on the state of deepfakes.¹⁷ This report found “more than 14,000 deepfake videos online, a 100% increase over their 2018 count.”¹⁸ It also found that “96% of deepfake videos are pornography, and nearly all of those involve women.”¹⁹

Revenge porn has been around for years; however, deepfake technology has only recently made this type of attack something anyone can fall victim to, even if the victim has never taken an explicit picture or video.²⁰ The term “revenge porn” itself is just one name for what is really image-based abuse.²¹ The definition of image-based abuse is the “act of distributing intimate photos through various means without the individual’s consent.”²²

While the term revenge porn came about recently, image-based abuse goes back to at least the 1800s.²³ In 1888, a New York photographer was accused of “showing and selling photos of undraped women in local salons” without the women’s consent.²⁴ Florida International University conducted a study in 2019 that found “1 in 12 adults reported at least one instance of nonconsensual pornography victimization in their life and women reported higher rates of victimization.”²⁵ This type of abuse can result in significant issues faced by the victims, including “post-traumatic stress disorder, suicidal thoughts, depression, amongst other symptoms of poor mental health.”²⁶

The significant trauma being faced by victims has made this issue come to the forefront.²⁷ Deepfake image-based abuse has only increased in its frequency lately.²⁸ Since the 2017 Reddit thread, deepfake technology has become more and more accessible.²⁹ Apps have been developed specifically to aid in the creation of deepfake porn over and over again.³⁰ While they get banned rather quickly, they still exist and reappear repeatedly.³¹ Two examples of this type of app include DeepNude in 2019 and a Telegram bot in 2020.³² Because of this newfound accessibility of deepfake technology, the scope of the abuse has expanded.³³ Targets are no longer just celebrities and influencers, but now can be and often are “private individuals,” according to Giorgio Patrini, CEO and chief scientist of Sensity AI.³⁴ As for the Telegram bot, “Sensity found there had been at least 100,000 victims, including underage girls.”³⁵

III. Discussion

The impact this type of abuse can and has had is significant, so naturally the conversation about what to do about it has only increased in recent years.³⁶ Thankfully, image-based abuse has been outlawed in most states.³⁷ However, wording of the statutes and the way in which they are prosecuted varies dramatically among the states.³⁸ Most state laws have made image-based abuse a crime in some capacity.³⁹ The only states that have yet to create a specific crime for this type of abuse are Massachusetts and South Carolina.⁴⁰ As for revenge porn, out of the states that do have laws against it, only Virginia, New York, Georgia, and California’s laws cover authentic and deepfake versions.⁴¹ Further, there are not any federal laws prohibiting deepfake revenge porn.⁴²

Despite the severe lack of laws to protect those affected by deepfake revenge porn, there are other ways for targeted people to protect themselves, but typically these avenues are only applicable in very specific circumstances.⁴³ This can include intellectual property law, but only if the photo or video used for the creation of the deepfake image or video was copyrighted.⁴⁴ Another option is utilizing harassment laws, but that route can often be extremely difficult due to the substantial amount of evidence required under these laws that itself can be difficult to obtain.⁴⁵

There are no truly effective ways to protect yourself if you are targeted by deepfake revenge porn at this time, unless you fall into one of the small above categories.⁴⁶ The lack of laws surrounding deepfake porn is a result of a few major issues: (1) lawmakers are not educated on deepfake technology nor its potential to be used to hurt people; (2) victims who speak up about their experiences are often retargeted; and (3) regulating the technology is incredibly difficult.⁴⁷

For the time being, victims may have some unconventional routes to protect themselves in the horrifying event of finding themselves as the target of deepfake porn.⁴⁸ Name, image, and likeness laws (“NIL”) could be yet another potential protection. NIL protections are meant to allow people to prevent others from using their name, image, or likeness for commercial benefit.⁴⁹ NIL protection may be an option if the deepfake porn is being commercialized in any way, whether it is being sold or promoted on a website.⁵⁰ Defamation may be yet another option.⁵¹ According to the Electronic Frontier Foundation, “it’s possible to sue for defamation or for portraying a victim in ‘false light,’ or to file a ‘right of publicity’ claim alleging that deepfakes makers profited from your image without permission.”⁵² Ultimately, the best route for victims of deepfake revenge porn is still likely regular revenge porn statues if they are in a state that has this type of law.⁵³ Even though these laws do not all contemplate deepfake revenge porn, there is a chance that judges may rule in the future that these statutes apply to deepfake revenge porn as well.⁵⁴

Apart from criminal action, victims of deepfake revenge porn likely will have similar recovery in civil court as those suing over regular revenge porn.⁵⁵ Regular revenge porn victims “often bring tort claims for false light invasion of privacy, intrusion on seclusion, publication of private facts, intentional/negligent infliction of emotional distress, and/or defamation, among others.”⁵⁶ Victims of deepfake revenge porn may be able to recover under these same theories.⁵⁷

Unfortunately, defendants in lawsuits like these, including defamation or false light claims, can use satire or parody to avoid liability.⁵⁸ Basically, if the defendant can show that the deepfake image or video was meant to be a joke and would be perceived as such, they could avoid liability.⁵⁹ Often, deepfake porn is over-dramatized, so this type of defense is likely to be claimed.⁶⁰ Regardless of the purpose of deepfake revenge porn, victims can and do experience the same emotional, reputational, and other types of harm and should be able to recover.⁶¹

Ultimately, ways to recover from injury caused by deepfake revenge porn have yet to be litigated fully.⁶² While intellectual property, harassment, privacy, NIL, and regular revenge porn laws may provide methodsa to protect victims or provide some way for victims to recover, none have been fully litigated so there is no way to know what will work.⁶³ However, the outcome of cases involving deepfake pornography may be seen in coming years and provide some avenues for victims, but lawmakers must make it possible to sue perpetrators of deepfake porn.⁶⁴

IV. Conclusion

The Twitch streamer who bought and watched deepfake porn depicting his colleagues is just one instance of a horrific situation many people, predominately women, have faced in recent years.⁶⁵ Despite the increasing amount of deepfake porn being created and shared, the law is lagging on protecting the victims.⁶⁶ Victims have to resort to other areas of law, even outside of criminal law, just to have the deepfake images and videos taken down.⁶⁷ This does not include any real punishment for the creators of the deepfake pornography nor any recovery for emotional, reputational, or other harms the victims may face.⁶⁸ With deepfake technology being so easily accessible, lawmakers must at least do something to protect those who may fall victim to its nefarious uses, even if it cannot regulate the use of the technology itself.⁶⁹

Cover Photo by Focal Foto on Flickr and licensed under CC BY-NC 2.0.

Micah Kindred

Micah Kindred graduated from the University of Louisville in 2021 with a degree in Computer Science and Engineering with a minor in Business Management. Micah spent her undergraduate co-ops working in software development, enterprise architecture, and data science. Micah hopes to pursue a career in patent and corporate law after law school.

References

1
Jessica Lake, How Many Decades Old is “Revenge Porn” and How Have Laws Historically Addressed It?, Public Interest Media (Nov. 30, 2021), https://www.thebigq.org/2021/11/30/how-many-decades-old-is-revenge-porn-and-how-have-laws-historically-addressed-it. [https://web.archive.org/web/20221208162027/https://www.thebigq.org/2021/11/30/how-many-decades-old-is-revenge-porn-and-how-have-laws-historically-addressed-it].
2
Samantha Cole, Deepfake Porn Creator Deletes Internet Presence After Tearful ‘Atrioc’ Apology, VICE (Jan. 31, 2023, 1:07 PM), https://www.vice.com/en/article/jgp7ky/atrioc-deepfake-porn-apology [https://web.archive.org/web/20230316235609/https://www.vice.com/en/article/jgp7ky/atrioc-deepfake-porn-apology].
3
Id.
4
Twitch, https://www.twitch.tv/. [https://web.archive.org/web/20230328095600/https://www.twitch.tv/].
5
Streamer, Computer Hope (Aug. 2, 2020), https://www.computerhope.com/jargon/s/streamer.htm [https://web.archive.org/web/20220309084652/https://www.computerhope.com/jargon/s/streamer.htm%5D.
6
Cole, supra note 2.
7
Deepfake Definition & Meaning, Merriam-Webster, https://www.merriam-webster.com/dictionary/deepfake [https://web.archive.org/web/20230317190539/https://www.merriam-webster.com/dictionary/deepfake].
8
A Quick History of Deepfakes: How It All Began, Q5iD Proven Identity (Nov. 16, 2022), https://q5id.com/blog/a-quick-history-of-deepfakes-how-it-all-began [https://web.archive.org/web/20230315052238/https://q5id.com/blog/a-quick-history-of-deepfakes-how-it-all-began].
9
Id.
10
Id.
11
Id.
12
Id.
13
Frederick Dauer, Law Enforcement in the Era of Deepfakes, Police Chief Online (June 29, 2022), https://www.policechiefmagazine.org/law-enforcement-era-deepfakes/ [https://web.archive.org/web/20230319145334/https://www.policechiefmagazine.org/law-enforcement-era-deepfakes]; Meredith Somers, Deepfakes, Explained, MIT Sloan (July 21, 2020), https://mitsloan.mit.edu/ideas-made-to-matter/deepfakes-explained [https://web.archive.org/web/20230309145546/https://mitsloan.mit.edu/ideas-made-to-matter/deepfakes-explained].
14
Dauer, supra note 13.
15
Id.
16
Somers, supra note 13.
17
Id.
18
Id.
19
Id.
20
Nandini Comar, The Rise of Revenge Porn, Garbo (Oct. 29, 2021), https://www.garbo.io/blog/revenge-porn [https://web.archive.org/web/20221006071518/https://www.garbo.io/blog/revenge-porn].
21
Id.
22
Id.
23
Id.
24
Id.
25
Id.
26
Id.
27
Karen Hao, Deepfake Porn is Ruining Women’s Lives. Now the Law May Finally Ban It., MIT Technology Review (Feb. 12, 2021), https://www.technologyreview.com/2021/02/12/1018222/deepfake-revenge-porn-coming-ban [https://web.archive.org/web/20230312190036/https://www.technologyreview.com/2021/02/12/1018222/deepfake-revenge-porn-coming-ban].
28
Id.
29
Id.
30
Id.
31
Id.
32
Id.
33
Id.
34
Id.
35
Id.
36
Hao, supra note 27.
37
Id.
38
Id.
39
FindLaw Staff, State Revenge Porn Laws, FindLaw (Dec. 8, 2022), https://www.findlaw.com/criminal/criminal-charges/revenge-porn-laws-by-state.html [https://web.archive.org/web/20230123112635/https://www.findlaw.com/criminal/criminal-charges/revenge-porn-laws-by-state.html].
40
Id.
41
Bianca Britton, They Appeared in Deepfake Porn Videos Without Their Consent. Few Laws Protect Them., NBC News (Feb. 14, 2023, 3:48 PM), https://www.nbcnews.com/tech/internet/deepfake-twitch-porn-atrioc-qtcinderella-maya-higa-pokimane-rcna69372 [https://web.archive.org/web/20230317130653/https://www.nbcnews.com/tech/internet/deepfake-twitch-porn-atrioc-qtcinderella-maya-higa-pokimane-rcna69372].
42
Katherine Singh, There’s Not Much We Can Legally Do About Deepfake Porn – Yet, (Feb. 9, 2023, 12:38 PM), https://www.refinery29.com/en-us/2023/02/11283094/deepfake-porn-laws-atrioc [https://web.archive.org/web/20230316235626/https://www.refinery29.com/en-us/2023/02/11283094/deepfake-porn-laws-atrioc].
43
Hao, supra note 27.
44
Id.
45
Id.
46
Id.
47
Id.
48
See discussion infra Part III.
49
Michele M. Simonelli, Unauthorized Use of Name or Likeness: Can I Sue if Someone Uses My Name?, Minc Law (Dec. 29, 2022), https://www.minclaw.com/unauthorized-use-name-likeness [https://web.archive.org/web/20230206025152/https://www.minclaw.com/unauthorized-use-name-likeness].
50
Right of Publicity, (OH), Lexis (2022), https://plus.lexis.com/api/permalink/43bd172f-f4f7-44ac-9ff8-72290c19a286/?context=1530671.
51
7 Things You Can Do if You’re a Victim of Deepfakes or Revenge Porn, Fight the New Drug (Sept. 30, 2022), https://fightthenewdrug.org/7-things-you-can-do-if-youre-a-victim-of-deepfakes-or-revenge-porn [https://web.archive.org/web/20221204143137/https://fightthenewdrug.org/7-things-you-can-do-if-youre-a-victim-of-deepfakes-or-revenge-porn].
52
Id.
53
Mark D. Rasch & Alexandra L. Arko, Nudify Me: The Legal Implications of AI-Generated Revenge Porn, KJK (Feb. 15, 2023), https://kjk.com/2023/02/15/nudify-me-the-legal-implications-of-ai-generated-revenge-porn [https://web.archive.org/web/20230328152749/https://kjk.com/2023/02/15/nudify-me-the-legal-implications-of-ai-generated-revenge-porn/].
54
Id.
55
Id.
56
Id.
57
Id.
58
Id.
59
Id.
60
Id.
61
Id.
62
Id.
63
Id.
64
See discussion supra Part III.
65
See discussion supra Parts I and II.
66
See discussion supra Part III.
67
Id.
68
Id.
69
Id.

I. Introduction

II. Background

III. Discussion

IV. Conclusion

Author

References