3 ms·

Why wouldn't it be libel?

golergka 9y ago
Libel would be stating that this is a real recording. If someone publishes a deep fake video saying it's a fake video, it's not much different from a cartoon based on someone, is it?
- gamblor956 9y ago
  Saying the video is a fake is not a defense to defamation. The false claim is putting the person's image in the deep fake in the first place. It is a well-settled point of law that a statement after the tortious act doesn't undo the tort; at best it might mitigate damages if the statement provably reduces the harm to the victim.
  - Slansitartop 9y ago
    > It is a well-settled point of law that a statement after the tortious act doesn't undo the tort What if the statement or image was labeled as a fake from its inception, not just "after the fact"? By your logic, this statement is defamatory/libel: "This statement is false: Barack Obama killed a man just to watch him die and also cheats at cards."
    - gamblor956 9y ago
      Only by your logic. You are comparing apples to oranges. The apple is the original scenario: a deep fake with an accompanying and severable statement, not part of the deep fake, that the image/video is fake. (The severability of the statement matters. If you want to know why, get a Westlaw subscription and spend a few weeks reading defamation case law.) The orange is the statement about BO. The claim of falsity is intrinsically tied (structurally and contextually) to the false statement accompanying it; they are a single contextual unit. Moreover, the claim of falsity precedes the allegedly defamatory statement to which it is unseverably tied so it is clear at the time of publication that the statement is intended to be false. And let's not even get into the heightened standard that applies defamation claims for public figures...
      - Slansitartop 9y ago
        You'll have to go into more detail about "severable statements" to convince me. Hand-waving towards a reference library doesn't really do it as a citation. > The claim of falsity is intrinsically tied (structurally and contextually) to the false statement accompanying it; they are a single contextual unit. I don't see how that can't or couldn't apply to a deepfake: the creator could name the file making clear it was a fake, or put a caption in corner of the video stating so. The "this statement is false" in my example seems just as separable as that. Someone could edit it out or fail to quote it, etc. Some of your other comments are about trivial issues: the grammar could be trivially changed to put the clause noting falsity at the end. I also used a public figure as an example, because the name came to mind quickly, but you might as well substitute a normal person's name for Obama's.
  - dragonwriter 9y ago
    Putting the image together is not a public false claim that would trigger tort liability. Publishing it, obviously, might be, but publishing it as a unit with an explicit label of falsity of the image does not make the label of falsity an act after the tort, it makes it an act simultaneously with one required element of the tort, and one which, at least arguably, eliminates another required element, that of falsity of the claim, so thst the required combination of elements never exists.
    - gamblor956 9y ago
      In the US, it is a well-settled point of law that the defamatory act is the publication of the false image. The statement that the image is fake is not a defense unless it accompanies every publication of the image and identifies the fake aspects of it at every occurrence. You can certainly argue that the defendant didn't intend to defame someone and included a statement that the image was fake. But as I said, that statement would not eliminate your liability for the tort; it would merely mitigate the damages. Tort law is complicated and isn't something you can just pick up by browsing the internet for a few minuets. I've handled these types of cases before. Have you?
      - dragonwriter 9y ago
        > The statement that the image is fake is not a defense unless it accompanies every publication Of course. OTOH, if you build it into the image/video, that's trivial to assure for each publication you are involved in, and subsequent publication by some other third party of some subsequent modified image that removed the statement of falsity is no different than if someone republishes a modified version for your statement that someone is not a child molester which omits the “not”. > Tort law is complicated (9_9) > and isn't something you can just pick up by browsing the internet for a few minuets. Yeah, I've never really questioned the decision I made to actually buy and study the required texts, etc., when I took Torts, rather than just spending a few minutes studying on the internet, so I really don't need anyone to validate that for me. (Now, if we were talking about false light, in the jurisdictions which recognize it, rather than defamation, this would be a trickier issue, I think.)
  - golergka 9y ago
    > It is a well-settled point of law that a statement after the tortious act doesn't undo the tort That's not what I was referring to. People who are publishing these videos are at the same time publicly say that these are works of fiction and fake. Not sometime later; right at the same time. They publish it in the reddit that has "fake" in the name. They often put "fake" in the title. They sometimes watermark it with a word "fake". How can this be defamation or libel?
    - gamblor956 9y ago
      Because you're only looking at the first part of a potential defamation action, the initial publication, and ignoring everything that can happen after that... By posting it to reddit or online, the deepfaker should have expected that it would be further disseminated (and that is the standard they will be held to, even if they didn't actually expect that). In order for statement of falsity to be a defense to defamtion, they would have to take steps to reasonably ensure that the statement accompanies the further dissemination of the video/image. This means intrinsically tying it to the fake content. A filename wouldn't be enough; they would need to embed it into the video itself, at the points where the images are faked, into order to avoid liability for defamation. Anything less than that and every jury in the country would find them liable for defamation. Tort law is complicated. The deepfaker of Daisy Ridley is in for a world of hurt if she chooses to pursue a defamation claim. On the other hand, the news sites that posted clips from the deepfake are not.That's an entirely separate discussion...
      - golergka 9y ago
        OK, this actually makes sense, thanks. Would a good watermark suffice, for example?

Libel would be stating that this is a real recording. If someone publishes a deep fake video saying it's a fake video, it's not much different from a cartoon based on someone, is it?

gamblor956 9y ago
Saying the video is a fake is not a defense to defamation. The false claim is putting the person's image in the deep fake in the first place. It is a well-settled point of law that a statement after the tortious act doesn't undo the tort; at best it might mitigate damages if the statement provably reduces the harm to the victim.
- Slansitartop 9y ago
  > It is a well-settled point of law that a statement after the tortious act doesn't undo the tort What if the statement or image was labeled as a fake from its inception, not just "after the fact"? By your logic, this statement is defamatory/libel: "This statement is false: Barack Obama killed a man just to watch him die and also cheats at cards."
  - gamblor956 9y ago
    Only by your logic. You are comparing apples to oranges. The apple is the original scenario: a deep fake with an accompanying and severable statement, not part of the deep fake, that the image/video is fake. (The severability of the statement matters. If you want to know why, get a Westlaw subscription and spend a few weeks reading defamation case law.) The orange is the statement about BO. The claim of falsity is intrinsically tied (structurally and contextually) to the false statement accompanying it; they are a single contextual unit. Moreover, the claim of falsity precedes the allegedly defamatory statement to which it is unseverably tied so it is clear at the time of publication that the statement is intended to be false. And let's not even get into the heightened standard that applies defamation claims for public figures...
    - Slansitartop 9y ago
      You'll have to go into more detail about "severable statements" to convince me. Hand-waving towards a reference library doesn't really do it as a citation. > The claim of falsity is intrinsically tied (structurally and contextually) to the false statement accompanying it; they are a single contextual unit. I don't see how that can't or couldn't apply to a deepfake: the creator could name the file making clear it was a fake, or put a caption in corner of the video stating so. The "this statement is false" in my example seems just as separable as that. Someone could edit it out or fail to quote it, etc. Some of your other comments are about trivial issues: the grammar could be trivially changed to put the clause noting falsity at the end. I also used a public figure as an example, because the name came to mind quickly, but you might as well substitute a normal person's name for Obama's.
- dragonwriter 9y ago
  Putting the image together is not a public false claim that would trigger tort liability. Publishing it, obviously, might be, but publishing it as a unit with an explicit label of falsity of the image does not make the label of falsity an act after the tort, it makes it an act simultaneously with one required element of the tort, and one which, at least arguably, eliminates another required element, that of falsity of the claim, so thst the required combination of elements never exists.
  - gamblor956 9y ago
    In the US, it is a well-settled point of law that the defamatory act is the publication of the false image. The statement that the image is fake is not a defense unless it accompanies every publication of the image and identifies the fake aspects of it at every occurrence. You can certainly argue that the defendant didn't intend to defame someone and included a statement that the image was fake. But as I said, that statement would not eliminate your liability for the tort; it would merely mitigate the damages. Tort law is complicated and isn't something you can just pick up by browsing the internet for a few minuets. I've handled these types of cases before. Have you?
    - dragonwriter 9y ago
      > The statement that the image is fake is not a defense unless it accompanies every publication Of course. OTOH, if you build it into the image/video, that's trivial to assure for each publication you are involved in, and subsequent publication by some other third party of some subsequent modified image that removed the statement of falsity is no different than if someone republishes a modified version for your statement that someone is not a child molester which omits the “not”. > Tort law is complicated (9_9) > and isn't something you can just pick up by browsing the internet for a few minuets. Yeah, I've never really questioned the decision I made to actually buy and study the required texts, etc., when I took Torts, rather than just spending a few minutes studying on the internet, so I really don't need anyone to validate that for me. (Now, if we were talking about false light, in the jurisdictions which recognize it, rather than defamation, this would be a trickier issue, I think.)
- golergka 9y ago
  > It is a well-settled point of law that a statement after the tortious act doesn't undo the tort That's not what I was referring to. People who are publishing these videos are at the same time publicly say that these are works of fiction and fake. Not sometime later; right at the same time. They publish it in the reddit that has "fake" in the name. They often put "fake" in the title. They sometimes watermark it with a word "fake". How can this be defamation or libel?
  - gamblor956 9y ago
    Because you're only looking at the first part of a potential defamation action, the initial publication, and ignoring everything that can happen after that... By posting it to reddit or online, the deepfaker should have expected that it would be further disseminated (and that is the standard they will be held to, even if they didn't actually expect that). In order for statement of falsity to be a defense to defamtion, they would have to take steps to reasonably ensure that the statement accompanies the further dissemination of the video/image. This means intrinsically tying it to the fake content. A filename wouldn't be enough; they would need to embed it into the video itself, at the points where the images are faked, into order to avoid liability for defamation. Anything less than that and every jury in the country would find them liable for defamation. Tort law is complicated. The deepfaker of Daisy Ridley is in for a world of hurt if she chooses to pursue a defamation claim. On the other hand, the news sites that posted clips from the deepfake are not.That's an entirely separate discussion...
    - golergka 9y ago
      OK, this actually makes sense, thanks. Would a good watermark suffice, for example?