Generative Artifice: Regulation of Deepfake Exploitation and Deception under the First Amendment

Deepfakes can cause significant personal harm from embarrassment and invasions of privacy to reputational damage and emotional distress. Less severe cases involve individuals being placed in compromising or humiliating situations, while more severe instances include the creation of nonconsensual pornographic images and videos, often referred to as "image-based sexual abuse." Such actions can lead to severe emotional and psychological trauma for victims. Deepfakes can also depict individuals engaging in actions or making statements they never did, resulting in significant reputational damage and potential loss of employment, friendships, and social standing. Legal frameworks addressing these harms include tort theories of privacy invasion, such as "intrusion upon seclusion," "public disclosure of private facts," and "false light," along with defamation and intentional infliction of emotional distress.