ABSTRACT
Deepfake technology, powered by artificial intelligence, has enabled the quick and easy creation of hyperrealistic videos that superimpose one person’s face onto another’s body. While the technology has benign applications, it has been overwhelmingly used to create nonconsensual pornography. Deepfake pornography is a severe sexual offense that has affected hundreds of thousands of women. This Note, the first comprehensive analysis of deepfake pornography under defamation law, sketches a framework for advocates and judges to apply defamation to cases of deepfake pornography.
This Note argues that deepfakes – in achieving photorealism and alleging to be revealing a truth about a person’s body and private life – qualify as defamatory. As this Note shows, when alleged defamatory statements strive for (and achieve) hyperrealism and they insinuate to be revealing a ‘truth’ about someone’s private sex life, they are false statements of fact fitting squarely into the defamation framework. Cursory indications that a deepfake is ‘fake’ or viewers’ knowledge that it is ‘synthetic’ refer solely to the manner of creation rather than its content. Such indications do little to undermine the reputational harm and, consequently, the defamation claim. Moreover, this Note addresses defamation law’s peculiar and controversial ‘actual malice’ scienter requirement. As actual malice relates to knowledge or reckless disregard for the falsity of the statement and not a defamatory intent, it applies to creator-distributors who use synthetic processes to make deepfakes albeit often claiming a benign or parodic purpose.
George, Abigail, Defamation in the Time of Deepfakes (February 7, 2024).
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