Legislative Analysis
Phone: (517) 373-8080
PROTECTION FROM INTIMATE DEEP FAKES ACT
http://www.house.mi.gov/hfa
House Bill 5569 as introduced Analysis available at
Sponsor: Rep. Penelope Tsernoglou http://www.legislature.mi.gov
House Bill 5570 as introduced
Sponsor: Rep. Matthew Bierlein
Committee: Criminal Justice
Complete to 5-13-23
SUMMARY:
House Bill 5569 would create a new act, the Protection from Intimate Deep Fakes Act, to
establish civil and criminal liability for the nonconsensual dissemination of deep fake sexual
images of an identifiable individual under certain circumstances.
Dissemination would mean the distribution to one or more persons, other than the
individual depicted in the deep fake, or publication by any publicly available medium.
Deep fake would mean a video recording, motion picture film, sound recording,
electronic image, or photograph, or a technological representation of speech or conduct
substantially derivative of such a recording, film, image, or photograph, to which both
of the following apply:
• It is so realistic that a reasonable person would believe it depicts speech or
conduct of a depicted individual.
• Its production substantially depended on technical means, and not the ability
of another individual to physically or verbally impersonate the depicted
individual.
Depicted individual would mean an individual in a deep fake who is identifiable by
virtue of their face, likeness, or other distinguishing characteristic, such as a unique
birthmark or other recognizable feature, or from information displayed in connection
with the digital depiction, and who appears to be engaging in speech or conduct in
which they did not engage.
Civil action
The bill would allow an individual to bring a civil action against a person for the nonconsensual
dissemination of a deep fake if all of following apply:
• Either of the following:
o The person disseminated a deep fake with the knowledge that (or with reckless
disregard for whether) the creation, distribution, reproduction, or manipulation
of the deep fake will cause physical, emotional, reputational, or economic harm
to an individual falsely depicted.
o The person disseminated a deep fake to harass, extort, threaten, or cause
physical, emotional, reputational, or economic harm to an individual falsely
depicted.
House Fiscal Agency Page 1 of 6
• The deep fake realistically depicts any of the following:
o The intimate parts (genitals, pubic area, partially or fully exposed nipple, or
anus) of another individual presented as the intimate parts of the depicted
individual.
o Artificially generated intimate parts presented as the intimate parts of the
depicted individual.
o The depicted individual engaging in sexual contact or sexual penetration.
• The depicted individual is identifiable in either of the following ways:
o From the deep fake itself, by the depicted individual or by another individual.
o From the personal information displayed in connection with the deep fake.
Harass would mean an act that would cause a substantial adverse effect on the safety,
security, or privacy of a reasonable person.
Sexual contact would mean the intentional touching of intimate parts or intentional
touching with seminal fluid onto another individual’s body.
Sexual penetration would mean any of the following acts:
• Sexual intercourse, cunnilingus, fellatio, or anal intercourse.
• An intrusion, however slight, into the genital or anal openings of an individual
by another’s body part or an object used by another for this purpose.
Personal information would mean any identifier that enables communication or in-
person contact with an individual, including at least all of the following:
• The individual’s first and last name, first initial and last name, first name and
last initial, or nickname.
• The individual’s home, school, or work address.
• The individual’s phone number, email address, or social media account
information.
• The individual’s geolocation data.
Social media would mean any electronic medium, including an interactive computer
service, telephone network, or data network, that allows users to create, share, and view
user-generated content.
A cause of action described above would accrue at the time the depicted individual discovers
that the deep fake has been disseminated. It could be filed in the county where the defendant
resides, the county where the plaintiff resides, or the county where the deep fake was produced,
reproduced, or stored.
The court would have to allow confidential filings to protect the privacy of the plaintiff in such
an action, and it could grant injunctive relief to maintain the confidentiality of the plaintiff
using a pseudonym.
Defenses
It would not be a defense to an action described above that the depicted individual consented
to the creation of the deep fake or to the voluntary private transmission of the deep fake.
House Fiscal Agency HBs 5569 and 5570 as introduced Page 2 of 6
It would be a defense to an action described above that one or more of the following apply:
• The dissemination was made for the purpose of a criminal investigation or prosecution
that is otherwise lawful.
• The dissemination was for the purpose of, or in connection with, the reporting of
unlawful conduct.
• The dissemination was made in the course of seeking or receiving medical or mental
health treatment and the image is protected from further dissemination.
• The dissemination was made for legal proceedings and was consistent with common
practice in civil proceedings necessary for the proper functioning of the criminal justice
system, or protected by court order that prohibited any further dissemination.
• All of the following:
o The deep fake related to a matter of public interest.
o Its dissemination served a lawful public purpose.
o The person disseminating the deep fake as a matter of public interest clearly
identified that the video recording, motion picture film, sound recording,
electronic image, photograph, or other item was a deep fake.
o The person acted in good faith to prevent further dissemination of the deep
fake.
Damages and injunctive relief
In an action described above, the court could award all of the following damages to a prevailing
plaintiff from a person found liable:
• Economic and noneconomic damages, including financial losses because of the
dissemination of the deep fake and damages for mental anguish, embarrassment, and
humiliation.
• An amount equal to any profit made from the dissemination of the deep fake by the
person found liable.
• A civil fine, to be awarded to the plaintiff, of up to $100,000.
• Actual court costs and fees and reasonable attorney fees.
In an action described above, the court could enter a temporary restraining order or a permanent
injunction to prevent further harm to the plaintiff. The court could award the plaintiff a civil
fine of up to $1,000 per day for the violation of such an order.
Liability under the above provisions would not affect any other remedy available under law.
Criminal prohibition and penalties
The bill also would prohibit an individual from intentionally disseminating a deep fake if all
of the following apply:
• The individual knows that (or has reckless disregard for whether) the creation,
distribution, dissemination, reproduction, or manipulation of the deep fake will cause
physical, emotional, reputational, or economic harm to an individual falsely depicted.
• The deep fake realistically depicts any of the following:
o The intimate parts of another individual presented as the intimate parts of the
depicted individual.
o Artificially generated intimate parts presented as the intimate parts of the
depicted individual.
o The depicted individual engaging in a sexual act.
House Fiscal Agency HBs 5569 and 5570 as introduced Page 3 of 6
• The depicted individual is identifiable in either of the following ways:
o From the deep fake itself, by the depicted individual or by another individual.
o From the personal information displayed in connection with the deep fake.
Both of the following would have to apply in order for any consent to dissemination to be valid
with regard to the above criminal prohibition: 1
• The consent would have to be contained in an agreement written in plain language
signed knowingly and voluntarily by the depicted individual.
• The consent would have to include a general description of the intimate digital
depiction and, if applicable, the audiovisual work into which it will be incorporated.
Except as described below, an individual who violates the above prohibition would be guilty
of a misdemeanor punishable by imprisonment for up to one year, a fine of up to $3,000, or
both.
If one or more of the following apply, an individual who violates the above prohibition would
be guilty of a felony punishable by imprisonment for up to three years, a fine of up to $5,000,
or both:
• The depicted individual suffers financial loss because of the dissemination of the deep
fake.
• The individual maintains an internet website, online service, online application, or
mobile application for the purpose of disseminating the deep fake.
• The individual posts the deep fake on a website.
• The individual disseminates the deep fake with intent to profit from the dissemination.
• The individual disseminates the deep fake with intent to harass, extort, threaten, or
cause physical, emotional, reputational, or economic harm to the depicted individual.
• The individual has previously been convicted of violating the prohibition.
Defenses and exceptions
It would not be a defense to a prosecution that the depicted individual consented to any of the
following:
• The creation of the deep fake.
• The possession of the deep fake.
• The private transmission of the deep fake to an individual other than those to whom
the deep fake was disseminated.
The above provisions concerning the criminal prohibition of, and penalties for, dissemination
of a deep fake would not apply if any of the following apply:
• The dissemination is made for the purpose of a criminal investigation or prosecution
that is otherwise lawful.
• The dissemination is for the purpose of, or in connection with, the reporting of unlawful
conduct.
• The dissemination is made in the course of seeking or receiving medical or mental
health treatment and the image is protected from further dissemination.
1
While the bill’s civil liability provisions apply to a nonconsensual dissemination, consent or its absence is not a part
of the criminal prohibition. The bill does not include criteria for valid consent related to civil liability.
House Fiscal Agency HBs 5569 and 5570 as introduced Page 4 of 6
• The dissemination is made for legal proceedings and is consistent with common
practice in civil proceedings necessary for the proper functioning of the criminal justice
system, or protected by court order that prohibits any further dissemination.
• The deep fake relates to a matter of public interest and dissemination serves a lawful
public purpose.
Other provisions
The bill provides that it could not be construed to impose civil or criminal liability on the
following entities solely as a result of content or information provided by another person:
• An interactive computer service as defined in federal law. 2
• A provider of public mobile services or private radio services.
• A telecommunications network or broadband provider.
The bill would take effect after December 31, 2024. It would apply to the dissemination of a
deep fake after that date.
House Bill 5570 would amend the Code of Criminal Procedure to make complementary
changes to the sentencing guidelines. Dissemination of a deep fake with aggravating factors
would be added as a Class F crime against a person with a statutory maximum term of
imprisonment of three years.
MCL 777.17b
Neither bill would take effect unless both were enacted.
FISCAL IMPACT:
House Bill 5569 would have an indeterminate fiscal impact on the state and on local units of
government. The number of convictions that would result under provisions of the bill is not
known. Violations could be either misdemeanors or felonies, depending on the circumstances.
New misdemeanor convictions would increase costs related to county jails and/or local
misdemeanor probation supervision. Costs of local incarceration in county jails and local
misdemeanor probation supervision, and how those costs are financed, vary by jurisdiction.
New felony convictions would result in increased costs related to state prisons and state
probation supervision. In fiscal year 2023, the average cost of prison incarceration in a state
facility was roughly $48,700 per prisoner, a figure that includes various fixed administrative
and operational costs. State costs for parole and felony probation supervision averaged about
$5,400 per supervised offender in the same year. Those costs are financed with state general
fund/general purpose revenue. Under the bill, revenue from civil fines collected would be
awarded to plaintiffs. The fiscal impact on local court systems would depend on how provisions
of the bill affect court caseloads, including civil actions filed under the bill, and related
administrative costs. Any increase in penal fine revenue would increase funding for public and
county law libraries, which are the constitutionally designated recipients of those revenues.
House Bill 5570 is a companion bill to House Bill 5569 and would amend the sentencing
guidelines chapter of the Code of Criminal Procedure to include the proposed new felony of
2
https://www.law.cornell.edu/uscode/text/47/230#f
House Fiscal Agency HBs 5569 and 5570 as introduced Page 5 of 6
dissemination of intimate deep fake with aggravating factors, as a Class F felony punishable
by a statutory maximum of three years. The bill would not have a direct fiscal impact on the
state or on local units of government.
Legislative Analyst: Rick Yuille
Fiscal Analyst: Robin Risko
■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their
deliberations and does not constitute an official statement of legislative intent.
House Fiscal Agency HBs 5569 and 5570 as introduced Page 6 of 6