With Deepfakes on the Rise, Victims Need a Nimble Legal Strategy

Deepfakes and digitally manipulated media and communications have targeted victims as high profile as Taylor Swift and President Joe Biden, as well as private figures like high school students. Companies are likely to be an increasingly common target, too.

What can victims of harmful deepfakes—whether celebrities, politicians, private individuals, or companies—do to strike back and protect themselves and their reputations? Here are several key strategies to use now, with other proposed new criminal and civil legal tools on the horizon.

Takedown Demands

The ongoing and urgent harm caused by deepfakes requires a quick and strategic plan to pursue takedowns with internet service providers, including social media platforms. For deepfakes that appear to incorporate copyrighted works, using the statutory notice mechanism of the Digital Millennium Copyright Act is an important first step.

Further collaboration with such platforms may be necessary to proactively prevent the further distribution of harmful content. In many instances, the victim may not own the intellectual property incorporated by the deepfake. Therefore, finding and collaborating with the copyright owner is critical.

Smart Legal Action

It’s natural that a victim would want to file a lawsuit for privacy torts against perpetrators of a non-consensual deepfake for privacy torts, and this is often a sensible early step. While perpetrators’ identities may be unknown, filing suit against “John Doe” defendants enables a plaintiff to subpoena ISPs to unmask the information behind an anonymous account or internet protocol address.

Obtaining subpoenaed information and pursuing further investigatory steps can be time-consuming, so filing suit early may be necessary to get the process going as soon as possible. Such lawsuits can be amended to add the true identity of perpetrators once uncovered.

Laws in certain states penalize those who engage in unauthorized creation and distribution of revenge porn and deepfakes in certain contexts, so understanding contours of and exceptions to such local laws will be critical. States that have enacted protections include California (AB 602), New York (S1042A), Illinois, Texas, Virginia, Minnesota, Florida, Georgia, Hawaii, and South Dakota. Some states criminalize distribution of nonconsensual pornographic deepfakes, others provide only for private civil rights of action, and some do both.

Other existing legal tools may assist victims, including claims for defamation, false light invasion of privacy, infliction of emotional distress and—in the event of deepfakes used in commercial contexts—right of publicity violations. Plaintiffs should be aware of limitations on their claims to the extent any deepfakes might be legitimately protected by the First Amendment, such as in newsgathering or parody.

In addition to suing the bad actor, victims may be tempted to sue social media platforms or services where deepfakes have been distributed, as well as makers of any tool that was used to create the deepfake. While this reaction is understandable, potential plaintiffs will need to consider whether their causes of action against ISPs might be barred by Section 230 of the Communications Decency Act of 1996 and whether naming ISPs may be counterproductive to obtaining cooperation with takedown requests.

Federal and Local Assistance

Crime perpetrated using AI has become an increasing concern for prosecutors. Department of Justice Deputy Attorney General Lisa Monaco stated last month that existing laws can be leveraged to combat malicious uses of AI and that “identity theft using AI is still identity theft.” However, she confirmed that where “prosecutors can seek stiffer sentences for offenses made significantly more dangerous by the misuse of AI—they will.”

And with existing and new state laws supplementing federal protections, there’s also a role for states’ attorney general offices and local prosecutors. Creation of deepfakes can implicate a host of criminal statutes that may merit prosecutors’ attention, including anti-cyber-hacking statutes like the Computer Fraud and Abuse Act and anti-cyberbullying laws.

Public Relations

For high-profile individuals, strategic response to harmful deepfakes is essential to protect reputation. Choosing the right public relations firm is important in such an instance, especially one with close ties to social media platforms and lawmakers to help expedite early action. Working with a search-engine optimization firm may also be desirable to help turn the page on harmful headlines.

Upcoming Protections

As unprecedented risks from deepfakes spread, lawmakers have sought to fill gaps in the laws and create new legal protections. Proposed bills may provide powerful new tools to victims of malicious deepfakes, and include the US House’s Preventing Deepfakes of Intimate Images Act, the US Senate’s NO FAKES Act and US House’s No AI FRAUD Act. The Federal Trade Commission also proposed a rule to impose possibility liability on entities that provide the “means and instrumentalities” that facilitate impersonation fraud, thereby seeking to target the sources of deceptive AI deepfakes.

The scourge of malicious deepfakes is in its infancy, and a diverse set of tools is necessary to effectively combat it. But victims are far from helpless, and acting quickly, with guidance of experienced counsel, is critical to mitigating reputational harm and holding bad actors accountable.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Nathaniel Bach is an intellectual property litigation partner at Manatt, Phelps & Phillips.

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