DEFIANCE Act of 2024
What changed between versions
A new Section 2 (Findings) was added with nine findings explaining why Congress is acting: deepfake technology is ubiquitous, victims suffer profound harm including depression and suicidal ideation, forgeries are used for harassment and extortion, and they constitute a form of image-based sexual abuse.
The state preemption carve-out was broadened. States and Tribes may now maintain laws governing both 'disclosure of intimate images' AND 'nonconsensual activity involving a digital forgery' (previously only the latter), provided those laws are at least as protective as this Act.
The definition of 'digital forgery' was revised to require the depiction be indistinguishable 'when viewed as a whole by a reasonable person' (rather than simply 'to appear to a reasonable person to be indistinguishable'). The label exception was also broadened to cover not just labels but any 'context or setting in which the visual depiction is disclosed.'
For claims based on possession of a digital forgery, the consent requirement was narrowed: a plaintiff no longer needs to show they did not consent to 'possession' generally, only to 'possession with intent to disclose.' This makes it easier to bring a claim against someone who possessed a forgery intending to share it.
A new harm element was added for claims based solely on production of a digital forgery (without disclosure). The plaintiff must now show the identifiable individual 'was harmed, or was reasonably likely to be harmed, by the production.' This raises the bar for production-only claims.
Liquidated damages were restructured: the base amount remains $150,000, but a new enhanced tier of $250,000 applies if the conduct was committed in relation to actual or attempted sexual assault, stalking, or harassment by the defendant, or if it was the direct and proximate cause of such conduct by any person.
Punitive damages were explicitly added as available relief. Actual damages now expressly include 'any profits of the defendant attributable to the conduct.' A new profit-calculation provision shifts the burden: the plaintiff need only prove gross revenue, while the defendant must prove deductible expenses and portions of profit from other factors.
Equitable relief was expanded to include court orders requiring a defendant to 'delete' or 'destroy' the intimate visual depiction or digital forgery, in addition to the existing cease-and-desist language.
