Pornographic Deep Fakes: Liability for Breach of Privacy in Cases of Parody?

Abstract The combination of technological advancement of generative AI with the ever-increasing importance of participation and presence in the digital world for one’s overall quality of life makes the harm from deep fakes a pressing problem. There is a need to both regulate deep fakes and remedy the harm they cause. In the paper, I focus on tort law, privacy-based response to a subset of the deep fake problem: nonconsensual intimate fakes (‘intimate fakes’). I make the following claims in the paper: (1) Those who distribute intimate fakes of identifiable real persons where the image appears to be real should be liable to the plaintiff for breach of their privacy. Those who make these images (with a self-use exception) and those who host and view them should be likewise liable, but I will focus on distributors here. This follows from the position that false private information, even if defamatory, implicates the plaintiff’s privacy interest and should allow the plaintiff to sue for breach of privacy for reasons both pragmatic and conceptual (including an analogy I make between information and genome). This position is largely endorsed by existing English law. (2) There should (and probably could) be no tort liability for the distribution of intimate fakes of fictional characters not reasonably understood to refer to a real person. However, liability for breach of sexual privacy manifested in intimate fakes should extend also to cases of look-alikes (including of an invented character) and in this sense as well liability should be strict. (3) A strong case exists for imposing liability also in cases in which the intimate fake is a known fake: ostensibly fake, or accompanied by disclaimer that it is. I first explain why these known fakes merit liability, highlighting what makes their distribution both harmful and (civilly) wrongful. I then explain that liability could be conceptualised as (also) vindicating the claimant’s privacy interest. (4) There should be no tort liability for the creation of an intimate fake for self-use. However, the creator should be strictly liable for the distribution of the intimate fake; moreover, there is much to support liability of the creator towards the subject of the image should the latter learn that the image exists even if the intimate fake itself was not distributed.