New York S5959D/A5605C (2019): Legal Safeguards Against Unauthorized Deepfake Pornography

1. Overview

New York Senate Bill S5959D and Assembly Bill A5605C were signed into law by Governor Andrew Cuomo on November 30, 2020, which introduces significant revisions to the state’s Civil Rights Law. The amendments establish a private right of action and post-mortem right of publicity for the unlawful publishing or disseminating sexually explicit photos of individuals, including those created with the sophisticated and rigorous deepfake technology.

2. Scope of the Law

People who lived or perished in New York are included under this law. It aims at the commercial use of an individual’s name, voice, signature, image, or likeness without written permission from such a person. It further encompasses “deepfakes,” realistic depictions or footage created through digital misrepresentation and advanced technology.

3. Key Provisions

Post-Mortem Right of Publicity: One’s right of publicity is statutorily extended 40 years after one’s death. This right can be freely assigned and transferred by contract, license, gift, trust, or will. Successors in interest must register his or her claim with the Secretary of State of New York to enforce this right.

Private Right of Action: Individuals who are represented in sexually explicit matter created without their consent by means of the deepfake technology. They can bring a civil action for damages and injunctive relief against the individuals who created or distributed it.

Consent Requirements: The law requires written consent to be taken from the person or, if the person is a minor, from his/her guardian or parent. The consent should be obtained prior to using their persona for business and applies to both living and dead persons.

Statute of Limitations: The suit has to be filed within three years from the time when the plaintiff discovered the illegal use.

4. Fines & Enforcement

Civil Penalties: The persons liable under this regulation may be directed to pay damages, including actual damages, statutory damages, and punitive damages. Attorney’s fees and costs may also be awarded to the prevailing party by the court.

Enforcement: Civil action is the law enforcing mechanism in that it allows victims to pursue damage claims through the courts.

5. Notable Cases

There have been no publicly reported cases under this law until the most recent available information. Nevertheless, the law has been invoked in legal arguments regarding the spread of non-consensual deepfake pornography.

6. Comparison to Global Standards

New York’s law is a try to control deepfake technology worldwide. The European Union’s AI Act, for example, classifies AI systems in terms of risk levels and makes higher-risk applications subject to stricter rules. The UK Online Safety Act 2023 makes it a criminal offense to produce and distribute deepfakes with the aim of causing harm. New York’s law addresses digitally altered evidence in nonconsensual pornography cases in particular.

7. Implications

For Victims: Victims whose identities are utilized in non-consensual deepfake pornography can pursue legal remedies under this law.

For Content Creators and Distributors: The creators and distributors of explicit content are required to ensure they have appropriate consent in order to escape legal liability.

For Legal Professionals: This law gives guidance on how cases of non-consensual deepfake pornography can be addressed, and it provides channels for litigation and redress.

8. Future Outlook

More legislative action may be necessary as the technology develops to address emerging issues with consent and digital manipulation.