United States: If Signed By Governor, California Bill AB-602 Will Provide Private Right Of Action For Victims Of Sexually Explicit ‘Deepfakes'

AB-602, passed by the California State Senate on September 12, 2019, will, if approved by the governor, create a private right of action against persons who create or disclose another's sexually explicit content through use of "deepfake" technology. Specifically, the cause of action may be brought against a person who creates and intentionally discloses sexually explicit material where the person knows, or reasonably should know, that such creation or disclosure was not consented to by the depicted individual, or where such person did not create but intentionally discloses such material knowing that the depicted individual did not consent to its creation.

Sponsors of the bill envision it applying in two distinct scenarios: (1) where a person's face is superimposed on another's body in such a way as to suggest that person is engaging in a sexually explicit way, and (2) where a mainstream filmmaker digitally alters a scene to make it look as though the actor engaged in sexually explicit activity when, in fact, he or she did not.

Issues AB-602 Seeks to Resolve

Deepfake (a portmanteau of deep learning and fake)1 is used for many purposes, including political commentary and parody.2 However, it is often used nefariously to depict individuals engaging in sexual acts in which they did not actually engage.3 It is these sexually explicit depictions that AB-602 seeks to prevent.4

Once sexually explicit deepfakes are proliferated online, a person's reputation becomes irreparably damaged and the person may suffer deep shame, humiliation and emotional damage. Additionally, such proliferation can result in long-lasting economic harm by tainting the depicted person's professional image to such a degree that he or she becomes unemployable.5 Thus, AB-602 was introduced to provide victims of such deepfakes with a cause of action that provides sufficient redress.

Limitations of AB-602 could make it difficult for plaintiffs to successfully employ

AB-602 is limited in notable ways. First, the bill seems to protect only persons whose faces are superimposed on another's body but not the person (i.e., the body) shown to be engaging in the sexually explicit conduct.6 Additionally, the legislation is likely preempted by the federal Communications Decency Act, 47 U.S.C. § 230, which protects internet content providers from liability for unlawful content posted by users of its service. Therefore, if the party who disclosed the unlawful content is difficult to find or is judgment-proof, victims may not be able to seek meaningful remuneration for redress of their injuries.

Moreover, under this bill the rights of the depicted individual are likely extinguished upon his or her death, as the legislation does not provide for the enforcement of rights under this provision for deceased persons.7 This creates two potential problems. First, it limits altered depictions of an individual from being used after death because it creates no right for successors or assigns to consent on behalf of the deceased individual. Secondly, it has no provision that would allow a depicted individual's future heirs and assigns to bring a cause of action on the deceased party's behalf.

Finally, certain provisions within the statute are vague and ambiguous. Notably, the bill defines "consent" as "an agreement written in plain language signed knowingly and voluntarily by the depicted individual that includes a general description of the sexually explicit material and the audiovisual work in which it will be incorporated."8 But what does "plain language" mean exactly if an individual enters a complex legal agreement – does the complexity of such a contract render the "consent" invalid? Moreover, what is meant by "general description" of "sexually explicit material" is currently unclear. Finally, how is a prospective plaintiff to prove that a defendant "knew" plaintiff did not, in fact, consent? Proving a negative is difficult and for this reason creates uncertainty about AB-602's potential as an effective remuneration tool for plaintiffs.

Conclusion

AB-602's purpose is a noble one; however, its effectiveness in practice remains uncertain as it requires a difficult standard for prospective plaintiffs to meet and faces numerous interpretive issues as noted above.

Footnotes

1 Nicholas Schmidt, Privacy law and resolving 'deepfakes' online, International Association of Privacy Professionals (Jan. 30, 2019), https://iapp.org/news/a/privacy-law-and-resolving-deepfakes-online/.

2 James Vincent, Watch Jordan Peele Use AI to Make Barack Obama Deliver a PSA About Fake News, The Verge (April 17, 2018), https://www.theverge.com/tldr/2018/4/17/17247334/ai-fake-news-video-barack-obama-jordan-peele-buzzfeed.

3 James Adams, The Naked Truth About Deepnudes: The stripping of dignity and democracy, Spectator (July 10, 2019), https://spectator.us/naked-truth-about-deepnudes/.

4 Concurrence in Senate Amendments (Sept. 6, 2019), https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=201920200AB602.

5 David White, Deepfake Technology Is an Attack on Consent and Actors' Rights to Control Sex Scenes (Guest Blog), The Wrap (Feb. 21, 2019), https://www.thewrap.com/deepfake-tech-consent-actors-rights-sex-scenes/.

6 Assembly Committee on Judiciary, Depiction of Individual Using Digital or Electronic Technology: Sexually Explicit Material: Cause of Action (Sept. 12, 2019), https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=201920200AB602.

7 Id.

8 AB-602 (Sept. 12, 2019), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB602.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions