Writing Competition 2nd Place:

Deepfakes are Taking Over Social Media: Can the Law Keep Up?

Public figures are being subject to deepfakes portraying artificially created circumstances that never actually occurred. Digital impersonation is becoming increasingly realistic and convincing. Online platforms such as Facebook, Twitter, and YouTube are fueling the rapid and widespread diffusion of user-created deepfakes. Intellectual property doctrines and recent “fake news” rules are unable to handle published deepfakes. The current Section 230 of the Communications Decency Act completely shields online platforms from the liability of publishing users’ deepfakes. The online platforms, controlled by a few private companies, are essentially governing the large parts of the digital world, leading to a crisis of legitimacy.

Technological and legal solutions are necessary to deter deepfakes that are primarily used to spread misinformation. As of now, the only possible ramification for public figures is to use property or tort law to claim civil liability against the individual deepfake creators. However, civil liability cannot ameliorate the harms because plaintiffs are not always able to identify the deepfake creator, and the creators can be located beyond the effective reach of the U.S. legal process. Since online platforms play a key role in enabling the distribution of deepfakes, a more effective approach would be to shift the focus and impose liability on the platforms. A discussion of First Amendment rights will remain in the background for these claims, and the courts must decide how to balance free speech rights with the societal harm that deepfakes cause. While we wait for legal mechanisms to potentially fall into place, the technology of deepfakes is only going to improve, causing chaos. We need to discuss the harms of deepfakes and possible solutions to prevent the spread of misinformation now.