Issues of Consent, Representation, and Exploitation in Deepfake Pornography

Deepfakes are a kind of synthetic media that use machine learning to create an artificially manipulated image or video with someone’s likeness or in some cases, an entirely artificially generated person. ¹ Its name derives from a Reddit user of the same name, ² though it has also been said to be a portmanteau of “deep-learning” and “fake.” ³ Tyrone Kirchengast explains the mechanism behind deepfake technology as follows:

It allows users to superimpose existing images and videos onto source images or videos using a machine learning technique or programme. In order to create a highly believable final manipulated image the technology must be able to determine the data points to match the image to the final manipulated one. ⁴

In other words, a large database of source images and videos must be made available in order for deepfakes to appear realistic. A machine learning algorithm uses this database to create a video or image that, through an immense amount of data points, looks believable, moving as if a human would move. As such, most often, source images are of those who can easily be found online: celebrities and politicians.

These media have been steadily rising in both their infamy and popularity in recent years; on learning what they are, one could imagine a number of purposes for which deepfakes could be used, some nefarious, others harmless. In general, a few uses come to mind when deepfakes are talked about today: parody, politics, and pornography. In humorous uses of deepfakes, the absurdity of the artifice is generally the source of the humor. For instance, the notion of seeing Nicholas Cage’s likeness appearing in a number of films is inherently funny. ⁵ Humorous uses of deepfakes are seen as, for the most part, harmless. Like any other piece of parody, imitative, or satirical work, these kinds of deepfakes are often protected by law if under the nomenclature of “parody,” ⁶ as they are usually not explicitly out to deceive nor damage anyone (not any more than, for instance, the damage that political comics do to the reputation of politicians). This, however, cannot be said of deepfakes’ applications in politics and pornography.

News media often construe deepfake’s largest problem as how it challenges truth in politics. ⁸ The problem with political deepfakes is generally understood as its ability to misrepresent politicians with fraudulent videos and statements, which is then in turn portrayed by news media as a threat to democracy. While this is true, Sophie Maddocks argues that this comes at a cost to how the threat of deepfake pornography is perceived: “fake porn is lumped together and played off as mere ‘speech’ – perhaps distasteful, but not damaging. Conversely, political deep fakes are seen to possess the power to dupe voters, steal elections, and undermine democracies.” ⁹ Political deepfakes are problematic, that is true. But deepfake pornography, as will be discussed in this article, holds just as harrowing consequences, and in the vast majority of the time holds these consequences for marginalized genders and groups. Similar to Maddocks, Chandell Gosse and Jacquelyn Burkell find news media reporting that “the threat presented by deep-fakes pornography is less serious, less genuine, and less significant than the potential political consequences of fake news and disinformation.” ¹⁰ This article attempts to follow these projects in providing a larger platform for the problematics of deepfake pornography.

Defining Deepfake Pornography

Deepfake pornography, in its most technical sense, turns the deepfake process pornographic by typically superimposing one face onto the body of adult performer. In 2019, about 96% of all extant deepfakes were of deepfake pornography, ¹¹ which further calls into question the fact that their issues have been de-prioritized for those of political deepfakes. Though obvious, it is also necessary to state that most deepfake videos use women’s faces and bodies. ¹² Therefore, deepfake pornography, following most pornography, largely targets women and perpetuates an already-existing power imbalance, wherein men hold the gaze and women are objects to be looked at.

Deepfake pornography follows another tradition commonly referred to as “revenge pornography,” the act of sharing private sexual materials. ¹³ As Maddocks argues that the term “revenge porn” reduces harms of sexual violence and image abuse to “a simple ‘scorned ex-boyfriend’ narrative,” ¹⁴ this article uses the term “image-based sexual abuse” to reflect the more glaring reality of this genre of pornography. In this form of abuse, deepfake pornography, like celebrity nude hacks, sex tape leaks, and all forms of image-based sexual abuse, are closely related because of their disproportionately gendered product (of acts that men do to women), ¹⁵ their spread through sharing online, and their inherent non-consensual nature.

Non-Consent and Deepfake Pornography

Non-consent in deepfake pornography is twofold: a lack of consent from the adult performer and from the face superimposed (oftentimes a celebrity). For the adult performer, their labor is very clearly being shared without recognition, dignity, or monetary compensation. Their body exists as a site on which another face is superimposed, only useful insofar as their figure closely matches the person whose face has been placed on their body. On websites where requesting for deepfake pornography is common, makers commonly tell individuals to find adult performers whose body “matches” their request. ¹⁷ Indeed, these adult performers have any shred of subjectivity or dignity stripped as they exist entirely as an object to be “erased, edited, and recirculated without their consent.” ¹⁸ These sex workers, who are “digitally decapitated,” ¹⁹ are exploited. In deepfake pornography, adult performers gain nothing from the work they have done. Already, without concerning the issues surrounding consent and representation, if deepfake pornography enables a product without, at the very least, pay to every contributor, are its makers not plainly exploiting labor? Once issues of consent—that is, the adult performer’s lack thereof for their inclusion in the video—are considered alongside this exploitation, the headless body is cause for deep concern.

For the face superimposed, a number of consent-related problems surface. To be clear, however, this is not a “problem of consent.” Rather, to hold a normative view, these are problems deriving from the initial act of non-consent. Though there might be discussions surrounding the legitimacy of consent in deepfake pornography, anyone sympathetic to the situation of those whose faces have been thrust into deepfake pornography generally intuitively see something wrong with a person’s image being used in a sexual act to which they have not consented. Those who do not think consent is relevant in deepfake pornography generally subscribe to the idea that ultimately (especially in the digital age) no one holds the right to their image and its reproduction. A comment on Reddit’s “r/changemyview” illustrates this view:

I think the way these things are compared to ‘involuntary pornography’ is completely absurd. The argument for banning them seems to rest on a premise that I fundamentally reject: that you own your likeness. But you don’t – I can take a picture of you without your consent and use it for whatever purpose I want. So, these things shouldn’t be banned, let alone outlawed – they’re just a natural progression of technology. In 20 years I’ll be able to have virtual reality sex with your wife, or your teenage daughter, or YOU, or whatever, and you won’t be able to do a damn thing about it, and that’s as it should be. ²¹

Rachel Winter and Anastasia Salter discuss the problem with this comment and the mentality at large: first, they (the commenter and the argument’s proponents) believe that initial consent for an original image transfers to any way that image is further used. It is clear why this is untrue—it is unlikely that, if everyone knew that their face would be used in deepfake pornography, they would consent to this use or the original image. Second, however, Winter and Salter also discuss how this justification fits into the practice of image-based sexual abuse. Simply, in this line of thought, victims of this type of abuse should never have been so “promiscuous” or shown off their image sexually in the first place. This type of morality causes the justification for image-based sexual abuse to somewhat paradoxically take on a “puritanical spin” ²²(paradoxical because their framework would imply that image-based sexual abuse is equally “immoral”).

The face of whoever is being portrayed in deepfake porn has to undergo significant social and emotional damage. It is not always a celebrity being portrayed either, as “social media creates optimal conditions for the potential creation of deepfakes that feature anyone.” ²³ As deepfake pornography requires a large dataset of photos, the threat of using photos solely from social media to create a realistic final product may still be overestimated. ²⁴ Nevertheless, it still remains a real threat that can serve to harm (most often) women.

That women’s agency and bodily autonomy are harmed is self-evident. Through deepfake pornography, women run the risk of having these videos be thought of as real, causing a shift in how people perceive them, a shift to which they have not consented. Further, however, it is apparent that watching their body do something that they have not done, and would not have done, takes away their agency (and consequently their dignity). This is not a question of the ethics of non-deepfaked pornography. Rather, it is the fact that victims of deepfake pornography see themselves perform a (to some) deeply intimate act. Though not technically their body, most deepfakes seek to make that line as thin as possible. (Further, what of the damage this does to the self-perception of one’s body?)

Many deepfake pornography makers make it clear that the video is fake; ²⁵ this, however, does not take away from the points made, as (1) the knowledge that the video is fake does not limit the ability of decontextualization; individuals may still send it into communities in which that knowledge is not apparent. And (2), there is no recovering the sense of agency lost by seeing yourself perform an act to which you did not consent, which is compounded with (3) the issues of exploitation that arise for the adult performer. The amount of harm underwent by the initial discarding of consent on the part of deepfake pornography makers cannot be understated.

In 2018, journalist Rana Ayyub was part of a “deepfake porn plot,” in which “far right trolls” had circulated a deepfake pornography video involving her face. She was subject to harassment, humiliation, and doxxing in the form of having her phone number leaked. The amount of stress she went through necessitated a trip to the hospital. ²⁶ The consequences of deepfake pornography, again, cannot and must not be understated. Any notion that the problems of political deepfakes deserve a larger platform than those of deepfake pornography speak to a tendency in the public sphere to shove aside issues of bodily and emotional harm done to women in favor of what are considered “real” issues, those of the “politics.” But women’s bodies are political, and the harm done through deepfake pornography requires a significantly larger platform. The question of consent in image-based sexual abuse, especially as it appears in deepfake pornography, must be reckoned with.

Avenues for Victims of Deepfake Pornography

The routes to fix the damage that deepfake pornography can cause are murky, and often, none of them suffice to fully compensate those who have already underwent harm. In the United Kingdom, producers of deepfake pornography can be prosecuted for harassment. ²⁸ Megan Farokhmanesh, on The Verge, says that in the United States, “[a]lthough there are many laws that could apply, there is no single law that covers the creation of fake pornographic videos.” ²⁹ It is clear that the kind of crime of which deepfake pornography is a part is not “new or revolutionary”; rather, it belongs to a larger family of intimate sexual abuse that women have been victims of before, simply in other forms. ³⁰

There have been calls to introduce laws specifically targeting deepfake pornography. In the UK, image-based sexual abuse is a criminal offence, ³¹ and recently, reforms to laws have been proposed to better protect victims of the crime. ³² In the US, the SHIELD act, a bill that has since passed the House of Representatives, ³³ aims to better provide protections for victims for image-based sexual abuse. However, it seems as though for now, only political deepfakes are regulated, and any state that has enacted statutes to do with deepfake pornography “tended to use language that is inconsistent, does not provide full individual protection, or does not impose liability on the producer or distributor of the content outside of specific circumstances.” ³⁴ In the final analysis, however, laws can only do so much to combat the real damage done by deepfake pornography. As Farokhmanesh says, “there are no legal remedies that fully ameliorate the damage that deepfakes can cause.” ³⁵ After all, these laws only become relevant when the damage has been done. Despite compensation or protection for the victim, these measures only become necessary when the crime has been committed, and the victim in question has become a victim.

Beyond these laws, then, there must be other options for those harmed by deepfake pornography. Tyrone Kirchengast says that “[b]efore a rush to criminalise or regulate, it is important to acknowledge that deepfakes may facilitate free speech and fair social and political comment, and can be used for entertainment.” ³⁶ If deepfakes as a whole do have use beyond pornography, and victims of deepfake pornography have legal forms of protection after harm is done, then how can harm be prevented from occurring?

One option is, of course, to ban them from social media and popular websites. Reddit, where deepfakes and deepfake pornography originated, has done this, ³⁷ and many social media sites, especially those hosted in countries with stronger regulation against image-based sexual abuse, have taken steps to use community guidelines to ban deepfake pornography. ³⁸ This, however, has led to deepfake pornography being hosted on other video-hosting websites (albeit ones that are not as popular as social media sites). The consequence is that, as Milena Popova has pointed out, this leads communities of deepfake pornography consumers and creators away from popular websites. ³⁹ While this helps lower the risk of more people consuming or seeing it, this content is still readily accessible and could be appropriated to harm someone, despite the pornography being labelled as fake. A search for deepfake pornography online demonstrates how easily it may still be found.

Another option could be Artificial Intelligence (AI) that detects fake pornography. There has been technology created that detects manipulated digital objects at a 96% success rate, ⁴⁰ and in general the notion that we can use AI to police AI is popular among media companies, as evident with algorithms that detect content on a myriad of extant social media sites. However, this is a “computational arms race.” ⁴¹ As one side of technology improves, the other does too. Consistently improving deepfake technology might spell trouble for the future of victims of deepfake pornography.

Consequently, what seems necessary is ultimately a combination of governmental legislation and regulation, initiatives on the part of tech companies, AI, and cultural awareness. As has been said at the beginning of this article, deepfake pornography has been subordinated in the legitimacy of its threat to the threat posed to the political sphere. Once again, however, the victims affected by the harms of deepfake pornography are political victims inasmuch as they are emotional and digital victims. Image-based sexual abuse has legitimacy within the political sphere, and the fact that this abuse typically affects women yet is subordinated to other issues reflects a persisting cultural mentality wherein abuse related to women are seen as less pertinent. If we are to recognize and give equal ground to all victims, it seems necessary to publicize, read about, write about, and speak about the problematics of deepfake pornography.

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