PORNOGRAPHIC DEEPFAKES AND UGLY SOCIAL FACTS: THE COSTS OF A NORMATIVE APPROACH TO DEFAMATION.

Around the world, women and girls are being victimized by pornographic deepfakes—alarmingly convincing, sexually exploitative images and videos generated using artificial intelligence (AI). Facing statutory gaps, victims may turn to traditional tort law claims to recover for the injuries inflicted by pornographic deepfakes. Defamation law, which protects against reputational injuries caused by false statements, is a particularly compelling arena for vindicating the interests invaded by a pornographic deepfake—interests which are, at their heart, social and reputational. Fortunately for deepfake victims, a pornographic deepfake will often satisfy defamation’s basic elements: A false and defamatory communication that concerns the victim and is published to third parties. A communication is defamatory if it would tend to harm its subject’s reputation in the eyes of the community, which is plainly true of pornographic deepfakes. But normative considerations sometimes complicate straightforward defamation claims. When deciding whether a communication is defamatory, courts may ask not only whether a communication would harm its subject’s reputation in the eyes of the community, but also whether it should. Because the false statements communicated by a pornographic deepfake—that its subject posed for a nude photograph or participated in the production of pornography—arguably should not prejudice a victim in the eyes of her community, courts taking a normative approach may be tempted to dismiss defamation-via-deepfake claims for fear of validating irrational or regressive views. Nevertheless, pornographic deepfakes have the obvious capacity to cause profound reputational harm. As a result, pornographic deepfakes provide a valuable opportunity to consider the costs of a normative approach to defamation. [ABSTRACT FROM AUTHOR]