By: Amy Rhoades
Recent election cycles have seen a rising concern by Americans that misinformation and deceptive advertising on digital media will go beyond creative editing into the production and use of doctored media, or “deep fakes”.[1] Campaign advertising in the United States is a multi-billion dollar industry: overall advertising costs for the 2020 election cycle are projected to increase by 30% from 2018, surpassing $7 billion, with digital advertising doubling since the previous cycle to $1.8 billion.[2] Recognizing the threat deep fakes pose to fair elections and the proliferation of digital advertising, there are rising calls for regulation or government intervention on digital platforms to avoid misinformation and election interference.[3] During the first half of 2020, Americans saw the use of political committees and campaigns disbursing ads using deep fake video, the appropriation of a politician’s likeness by his opponent without consent, and hacking social media accounts to interfere with the election.[4]
While social media advertising often permits deceiving or misleading ads due to First Amendment protections, there are limitations including when an ad violates an individual’s right of publicity.[5] Recognized in 31 states, the right of publicity is an intellectual property right granting individuals control over commercial use of their identity; an individual or entity may violate these rights when using a person’s identity without consent for commercial value.[6] While protection parameters and analysis factors vary by jurisdiction, generally courts emphasize protecting a person’s dignity, preventing unjust enrichment or commercial exploitation by others, and securing the individual’s commercial interests in their identity.[7] Some states have created an exemption for news and political speech; however, not all states recognize this exemption and politicians are not barred from bringing a publicity action.[8] As a result, politicians have brought suits against manufacturers or companies looking to profit off of their names, images, or likenesses.[9]
A key factor in publicity claims is whether the appropriation of an individual’s likeness is for commercial gain, which may be harder to determine with political ads than product merchandising. By focusing on the commercial impact of deep fakes, the law may already provide a mechanism to force the removal of a deep fake, and when appropriate, compensate an individual for damages. The Federal Trade Commission (“FTC”), the agency that regulates commerce, has articulated that mere political ads are outside commerce.[10] However, if doctored media of political candidates is used for commercial benefit, such as promoting products like books, services like media subscriptions, or even solicitations from for-profit fundraising organizations like political action committees, the FTC does provide oversight.[11] The FTC investigates and brings actions against deceptive fundraising practices, including political action committees, that can result in both financial penalties and the closure of operations.[12]
If similar ads are considered commercial speech for FTC regulation, a politician may meet the commercial factor necessary for a successful publicity right claim. Once considered commercial, the speech receives lower protections than free speech used for political parody or satire, and an individual’s right of publicity may provide a means to remove manipulated video used without their consent.[13] Additionally, the rights of publicity can encompass any commercial activity relying on an individual’s likeness without consent, while the FTC’s oversight is limited to only deceptive and fraudulent commercial practices.[14] Legislators should consider incorporating the principles of the right of publicity at a federal level to combat the threat of deep fakes.
[1] See Kathryn Montgomery & Jeff Chester, The Digital Commercialisation of U.S. Politics—2020 and Beyond,Ctr. for Digital Democracy (Jan. 16, 2020), https://www.democraticmedia.org/article/digital-commercialisation-us-politics-2020-and-beyond (connecting legislative hearings and increasing scrutiny of digital media in the United States to public outrage over social media’s role in 2016 election interference); Tim Mak & Dina Temple-Raston, Where Are the Deepfakes in this Presidential Election?, NPR (Oct. 1, 2020, 5:05 AM), https://www.npr.org/2020/10/01/918223033/where-are-the-deepfakes-in-this-presidential-election (discussing how the combination of advancing technology and rising population of digital platforms increases the threat of political advertisements utilizing deep fakes).
[2] See Montgomery & Chester, supra note 1 (reporting an advertising spend of $5.25 billion in 2018, with the digital ad spending reaching $950 million); Brad Adgate, Kantar Estimates 2020 Election Ads Will Cost $7 Billion, Forbes (Aug. 11, 2020, 9:13 AM), https://www.forbes.com/sites/bradadgate/2020/08/11/2020-an-election-year-like-no-other/#70610afa38d1; Sara Fischer, Money Still Pouring Into Election Ads, Axios (May 18, 2020), https://www.axios.com/money-still-pouring-into-election-ads-c3cd81f1-c856-486f-b0ee-996d80699524.html (estimating there will be $1.8 billion in digital ad spend during the 2020 presidential election cycle).
[3] See Montgomery & Chester, supra note 1 (explaining how reports showing 2016 election interference have led to legislative initiatives for government intervention or revised regulation of digital media advertising).
[4] See Dan Merica, Obama Sends Cease-and-Desist to Republican Super PAC Over Biden Ad, CNN (Feb. 27, 2020, 6:14 PM) (reporting President Obama sent cease-and-desist letters to a Republican political action committee for unauthorized use of his identity in ads); Jeremy Bash & Michael Steed, Deepfakes Threaten the 2020 Election, The Hill (July 21, 2020, 3:30 PM), https://thehill.com/opinion/cybersecurity/508202-deepfakes-threaten-the-2020-election (describing the cyberattack leading to fake messages posted on several twitter accounts of celebrities and politicians); David Frum, The Very Real Threat of Trump’s Deepfake, The Atlantic (Apr. 27, 2020) https://www.theatlantic.com/ideas/archive/2020/04/trumps-first-deepfake/610750/ (analyzing the potential impact of digital ads after President Trump promoted ads using deep fake media of his opponent).
[5] See Jessica Ice, Defamatory Political Deepfakes and the First Amendment, 70 Case W. Rsrv. L. Rev. 417 (2019) (describing how creators of deep fakes may have broad First Amendment protections); Sean T. Masson, The Presidential Right of Publicity, B.C. Intell. Prop. & Tech. Forum 2 (2010), https://bciptf.org/wp-content/uploads/2011/07/6-THE-PRESIDENTIAL-RIGHT-OF-PUBLICITY.pdf (explaining how First Amendment protections can be limited when speech is for commercial use).
[6] See Matthew Savare, Image is Everything, Lowenstein Sandler (Mar. 2013), https://www.lowenstein.com/media/4712/publicity-rights.pdf (stating there are 31 states that recognize publicity rights: 21 by common law, 19 by statute, and 9 by a combination); Masson, supra note 5, at 1 (analogizing a person’s right of publicity to a company’s protection of name and logo through trademark law).
[7] See Masson, supra note 5, at 1.
[8] See id.
[9] See id. at 2-3 (highlighting a series of right of publicity actions brought by politicians against companies or individuals attempting to profit from their likenesses without consent, including claims by Governor Jesse Ventura, Governor Arnold Schwarzenegger, and Vice President Spiro Agnew).
[10] See Edgar B. Herwick III, Why Don’t Truth in Advertising Laws Apply to Political Ads?, WGBH (Nov. 6, 2019), https://www.wgbh.org/news/politics/2019/11/06/why-dont-truth-in-advertising-laws-apply-to-political-ads (quoting the Federal Trade Commission’s Associate Director of Advertising saying the FTC does not “have jurisdiction over activities that are fully protected by the First Amendment”).
[11] See “Scam PACS” Are On the Rise: Don’t Confuse Them for Legitimate Charities, Charity Watch (June 17, 2020), https://www.charitywatch.org/charity-donating-articles/scam-pacs-are-on-the-rise-dont-confuse-them-for-legitimate-charities (describing FTC investigations and actions against donors misleading donors).
[12] See Press Release, FTC and States Combat Fraudulent Charities That Falsely Claim to Help Veterans and Servicemembers, Fed. Trade .Comm’n. (July 19, 2018), https://www.ftc.gov/news-events/press-releases/2018/07/ftc-states-combat-fraudulent-charities-falsely-claim-help (describing the FTC initiative to shut down fraudulent charitable solicitations for deceptive practices); Sarah Klein, Telemarketer at Center of Public Integrity Investigation Banned from Fundraising, Ctr. for Pub. Integrity (Sept. 16, 2020), https://publicintegrity.org/politics/veterans-charities/telemarketer-banned-from-fundraising/ (reporting how the FTC is expanding investigation and oversight beyond false charities to target fundraisers).
[13] See Masson, supra note 5, at 3 (describing “when expression under the First Amendment takes precedence over the right of publicity by examining whether the defendant’s use is commercial”).
[14] See generally Herwick III, supra note 10 (describing that the FTC is constrained to regulation and enforcement of deceptive practices and generally does not encompass political ads).
