Deepfake porn may seem novel, but it is only the latest example of creators depicting actors in sexualized scenes without their consent. These nonconsensual depictions are not a victimless crime. They cause real harm. Even if it is not really his or her body, an actor depicted as participating in a sex scene may find it difficult to get cast in more family-friendly productions. Moreover, he or she may endure considerable emotional trauma as a result of being exploited in this horrific way.
Imagine having to see yourself in a sex scene you never freely and knowingly agreed to — whether it is your actual body or the product of special effects. Worse, knowing that this “performance” will live forever on your IMDb page or on websites like Mr. Skin that exist for the sexual gratification of millions of viewers. To put it plainly, these technologies allow a filmmaker, an internet troll or an ex-lover to own a person’s body and remove any opportunity for meaningful consent. This is indefensible.
The fact is, actors’ rights in this area have long been trampled on. We are all sadly familiar with the situation in which an actor gives one performance only to discover later that the filmmaker has transformed it by using a body double and/or special effects to make it seem as if the actor was nude or performing sexual activity. What is new about deepfake porn is how realistic the depictions can look, how many such videos are floating around on the internet and how easily a creator can use a cheap laptop and free software to pull this off, without ever hiring the actor in the first place.
So what can be done? To respond to this new form of sexual abuse, California State Sen. Connie Leyva is working with SAG-AFTRA to introduce legislation that would empower individuals to sue anyone who creates or distributes digitally produced sexually explicit performances without their permission.
Some have suggested holding exploiters accountable under existing state laws. Under California’s current right of publicity law, for example, professional performers may be able to claim that a nonconsensual sexually explicit depiction is really an unauthorized digital performance.
But that’s because performing is the activity for which the individual is known. If you are not a professional actor or porn star, this approach is unlikely to protect you. Defamation law is of similarly limited utility. You might be able to win a defamation lawsuit if the depiction is presented as true and causes harm to your reputation. But if you are victimized by a deepfake porn video that does not pretend to be true, you are out of luck. Even the protection of a union contract goes only so far.
Although victimized union members may be able to pursue some remedies through labor arbitration, they are still going to need the ability to sue in open court in order to be compensated for what may be considerable economic, emotional, or reputational harm.
That’s why we need legislation like Sen. Leyva’s upcoming bill. It is particularly effective because it directly addresses nonconsensual depictions in a way that covers all types of survivors. Moreover, her legislation defines what is meant by meaningful consent, establishes special rules on how to obtain consent and gives a survivor options, such as whether to elect statutory damages and to file a lawsuit anonymously.
Some commentators insist that no law can fix this problem given the free speech protections of the First Amendment. This is simply not true. No one knows with certainty what the First Amendment does and does not protect until a judge makes a legal determination. While creators will certainly mount a free speech defense, American jurisprudence has long balanced the right to free speech with powerful competing interests, including privacy, truth, the right to live free from harassment and intellectual property rights such as copyrights, right of publicity and trademarks.
Society benefits from putting reasonable limitations on how freely creators and individuals can speak, including necessary prohibitions on the creation and distribution of nonconsensual deepfake porn. No one but the creators of this content themselves benefit from the suggestion that these videos are all protected speech and that nothing can be done to prohibit them. Something can be done and must be done. It is the moral responsibility of lawmakers, internet platforms and content creators to commit to real action before this “Hollywood actor” issue becomes everyone’s problem.