Virginia’s HB 2678 (2019): Statute Creating a Civil Path to Justice for Nonconsensual Deepfake Porn Victims

1. Overview

March 18, 2019, saw Virginia House Bill 2678 (HB 2678) endorsed by the General Assembly. Deepfake pornography is now included in the state’s existing revenge porn law. Under such legislation, the nonconsensual creation, dissemination, or distribution of sexually explicit “deepfake” images or videos that are not done with the consent of a living individual can be criminalized. These also cannot lawfully be created, distributed, or sold, with or without being done by AI or digital manipulation. Virginia HB 2678 was one of the earliest US bills addressing deepfake pornography.

2. Scope of the Law

If a person’s image or likeness is used to produce or alter a still or moving visual representation so that it can give rise to the impression among a reasonable observer that the person is engaging in an act of sexual conduct or exposing the person’s private area, then such a person would be protected under HB 2678. They should have their face, or what they look like, and all the details that enable them to be recognized. This act applies to original as well as manipulated images and videos.

3. Most Significant Provisions

• Distribution and sale of Images or Videos that are not consented to by another person without his or her written consent are not allowed.
• The act should be performed with the intention to coerce, harass, or intimidate the victim in the manipulated image or video.

4. Fines & Enforcement

Offenses of this act are a Class 1 misdemeanor. A guilty person may be punished with imprisonment for up to 12 months or a fine of up to $2,500, or both. The law is enforced by the Commonwealth’s Attorney’s office.

5. Notable Cases

There are currently no reported cases under HB 2678. The statute has come up in discussions surrounding the distribution of nonconsensual deepfake pornography.

6. Comparison to International Standards

HB 2678 is part of the growing worldwide movement to regulate deepfake technology. For instance, the EU’s AI Act regulates high-risk AI applications strictly, and it classifies them according to the application’s riskiness. The UK’s Online Safety Act 2023 criminalizes both producing and sharing deepfakes with ill intent. However, HB 2678 is special in that it applies to digitally manipulated content used without consent in the case of pornography, in particular.

7. Implications

For Victims: If someone has employed someone else’s identity in nonconsensual deepfake pornography, they can utilize HB 2678 to get relief.

Making or Distributing Lewd Material: If someone creates lewd material or distributes it, they need to have consent beforehand. This protects them from legal trouble.

For Legal Practitioners: HB 2678 allows people to file complaints about nonconsensual deepfake pornography and obtain justice.

8. Future Outlook

HB 2678 of Virginia attempts to confront the challenges posed by deepfake technology. As the times evolve, Virginia may pass more laws to confront emerging challenges brought about by digital manipulation and consent.