Seeing the Round Corners

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November 5, 2019


Today’s column explores the Specific Categories of Civil Liability – Threshold Obstacles, Suing the Creators of Deep Fakes and Suing the Platforms.

When theories of liability are being discussed (as with any legal theory), there are always “peculiar” facts or bits of information that can impact a case or completely change it. When seeking to sue the creator of a deep fake, the problem of attribution arises.

A knowledgeable and a careful up-to-date distributor of the deep fake will take advantage of technologies such as Tor. Tor makes it possible for a deep fake creator to assure that it is impossible for IP addresses connected to posts to find and then trace back to the responsible parties. This is where the problem of attribution leaves a plaintiff with no practical recourse against the creator. In such cases, the only possibility for recovery is against the owner of the platform that enabled circulation of the content.

Another one of those devilish problems that arises to possibly prevent civil remedies is when the creator of a deep fake or the platform circulating it are outside the United States, and thus beyond reach of the United Stated legal process, or in a jurisdiction where local legal action is unlikely to be effective. The global nature of deep fakes make the online platforms a particular problem.

Civil suits are expensive, and beyond the resources of far too many people, even if perpetrators can be identified and are in the United States. For people seldom involved in litigation, the ordinary person fears the “embarrassing or reputation harmful” deep fakes, and the likely possibility of exacerbating the victim’s harm.

Suing the creator of a deep fake has its challenges, with the most common or recognizable causes of action being intellectual property and tort law. A claim could arise under copyright law when a person takes a photo of himself or herself, and a deep fake creator uses its without permission or written release. An action for monetary damages and a notice-and-takedown  procedure can result in removal of the offending content, although success is likely uncertain as the creator of the deep fake is likely to argue that the fake is a “’fair use’ of the copy righted material, intended for educational artistic or other expensive purposes.’” There is not a track record in the courts of grappling with this type of fact-specific inquiry.

A second type of tort action would be “’right of publicity,’ which permits compensation for the misappropriation of someone’s likeness for commercial gain,’” – a somewhat limited likelihood for monetary success in this scenario.

The deep fake scenario has a number of concepts to address various situations. Financial gain by the creator of a deep fake is one of the determinants to see if a public figure can bring a claim for damages. “Defamation where falsehoods are circulated recklessly in the case of public figures or officials, or negligently in the case of private individuals” are potential for certain cases. Chesney and Citron state:  “The expressive value of some deep fakes may constitute a further hurdle to liability; courts often dismiss right-to-publicity claims concerning newsworthy matters on free-speech grounds.

Suing the creators of Deep Fakes continues next week.

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