Deepfake Torts: Emerging Tort Frameworks in U.S. Deepfake Regulation

Abstract As deepfake technology becomes increasingly sophisticated and accessible, American lawmakers are responding with a flurry of urgent legislative action to address its potential harms. Our 50-state survey of proposed and enacted deepfake legislation reveals a complex regulatory landscape in which jurisdictions are adopting a range of legal approaches, including criminal punishments, civil remedies, or a combination of methods. We also find that legislators are frequently turning to tort-law frameworks to address the harms of deepfakes. This article explores the current landscape of tort-based regulations of deepfakes. In addition to providing an overview of the most recent legislative developments, we unpack and compare the various tort-law methods arising at the state and federal level. We further consider how lawmakers are modifying existing tort laws to address the unique concerns raised by deepfakes. While individualistic tort remedies allow victims of deepfakes to seek direct recourse through familiar private rights of action, our analysis also identifies practical and conceptual limitations with this approach. Traditional tort frameworks struggle to address key challenges posed by deepfakes, including anonymous creation, viral distribution at technological scale, and harms affecting both individuals and society broadly. In light of these limitations, legislators are innovatively adapting traditional tort concepts — such as standing, mental states, causation, immunities, and remedies — to address deepfakes’ unique characteristics. Yet the very need for these adaptations reveals some of tort law’s shortcomings and suggests a space for complementary regulatory approaches. We consider some potential approaches that could provide this more complete framework, like tort liability for entities that enable deepfake creation and circulation, and civil enforcement mechanisms that empower state actors to vindicate both individual and societal interests. Ultimately, our findings suggest that while tort law provides a valuable foundation for addressing deepfake injuries, comprehensive protection will require additional regulatory frameworks beyond traditional tort remedies.