AB-602, passed by the California State Senate on September 12, 2019, will, if approved by the governor, create a private right of action against persons who create or disclose another’s sexually explicit content through use of “deepfake” technology. Specifically, the cause of action may be brought against a person who creates and intentionally discloses sexually explicit material where the person knows, or reasonably should know, that such creation or disclosure was not consented to by the depicted individual, or where such person did not create but intentionally discloses such material knowing that the depicted individual did not consent to its creation.
Sponsors of the bill envision it applying in two distinct scenarios: (1) where a person’s face is superimposed on another’s body in such a way as to suggest that person is engaging in a sexually explicit way, and (2) where a mainstream filmmaker digitally alters a scene to make it look as though the actor engaged in sexually explicit activity when, in fact, he or she did not.
Issues AB-602 Seeks to Resolve
Deepfake (a portmanteau of deep learning and fake) is used for many purposes, including political commentary and parody. However, it is often used nefariously to depict individuals engaging in sexual acts in which they did not actually engage. It is these sexually explicit depictions that AB-602 seeks to prevent.
Once sexually explicit deepfakes are proliferated online, a person’s reputation becomes irreparably damaged and the person may suffer deep shame, humiliation and emotional damage. Additionally, such proliferation can result in long-lasting economic harm by tainting the depicted person’s professional image to such a degree that he or she becomes unemployable. Thus, AB-602 was introduced to provide victims of such deepfakes with a cause of action that provides sufficient redress. Continue Reading