The Deepfake Dilemma: Reconciling Privacy and First Amendment Protections

Abstract

Deepfakes are realistic videos created using artificial intelligence software to replace the face of one person with the face of another. The technology used to produce these fake videos or digital representations is becoming increasingly sophisticated and available to the masses. Since their creation, deepfakes have been at the heart of debates regarding the ineffectiveness of U.S. law at punishing those who publish deepfakes of others without their consent. While deepfakes are often utilized as comedic or satirical tools, around the world, they are also being used to humiliate and harass individuals. The latter, more harmful use leads to detrimental consequences for those targeted.

For these reasons, a comprehensive reevaluation of U.S. law is needed to identify opportunities to strengthen the privacy protections available to those victimized by this rapidly advancing technology. Currently, the First Amendment is a significant challenge to the U.S. government’s ability to regulate deepfakes because of First Amendment restrictions on limiting free speech. Relatedly, deepfake creators often have a First Amendment defense in civil claims against them. This comment suggests that courts could better balance First Amendment interests and privacy protections by recognizing a constitutional right to defend one’s personality and reputation via the 14th Amendment right of autonomy. It begins by giving an overview of deepfake technology and U.S. law’s shortcomings in deterring the use of nonconsensual deepfake videos. It then discusses the historical link between U.S. common law privacy protections and the more legally authoritative right to personality under German constitutional law. It concludes that the two privacy regimes share historical origins in protecting human dignity, which includes reputation and autonomy; and therefore, U.S. courts could reasonably infer a constitutional privacy right that would rival the First Amendment in legal actions against deepfake creators.