Criminal Liability for the Violation of Identity Using Deepfakes in South Africa

A deepfake might attract liability for crimes that violate human dignity, identity, and privacy, known as crimen iniuria under the South African common law. The deepfake would have to contain some form of sexual impropriety or indecency to yield a conviction for crimen iniuria. The common law protection is broad enough to treat personality impairment using criminal liability, but it may not be sufficient to address cybercrimes relating to the infringement of identity through deepfakes. The South African Parliament has adopted the Cybercrimes Bill B6B-2017, which creates a statutory offence for fraud, forgery, uttering and unlawfully and intentionally disseminating intimate images through data messages. The Cybercrimes Bill B6B-2017 incorporates a proviso that the victim must have a reasonable expectation of privacy to yield a successful conviction for the latter crimes. The requirement of a reasonable expectation is peculiar because it is a civil law requirement for violating privacy stated as a requirement to secure a criminal conviction. This paper investigates when using another person's identity in deepfakes can result in a prosecution under the Cybercrimes Bill. This paper also looks to the United States of America by focusing on the Texas Election Code (Texas Senate Bill 751 (SB751), the first state law to regulate deepfakes in the United States of America.