The rapid advancement of technology has introduced new challenges to legal frameworks worldwide, one of which is the proliferation of deepfakes - digitally manipulated videos and images that appear deceptively real and can be used to deceive or cause harm. Despite their potential for abuse, these digital creations remain largely unregulated in Germany. However, a recent legislative push by the German Bundesrat (Federal Council) aims to change this, though it has been met with a cautious response from the German federal government.
The Bundesrat's initiative in a nutshell
The Bundesrat has proposed a new criminal offence, ‘Violation of Personal Rights Through Digital Forgeries,’ be added to the German Criminal Code (StGB) as Section 201b. This initiative seeks to address the growing concern that deepfakes can seriously infringe personal rights, particularly when used in malicious contexts such as defamation or non-consensual pornography. By introducing specific legal provisions, the Bundesrat aims to create a robust deterrent against the misuse of deepfakes and to provide victims with clearer avenues for legal recourse. In addition to protecting individual personal rights, the proposed law also aims to protect the democratic decision-making process. For example, it is possible to conduct credible disinformation campaigns using deepfakes by creating and disseminating manipulated media content of public figures. Incidents reported from abroad often concern election campaigns.
The Federal Government's response: no immediate need for legislative action
At the cabinet meeting on 21 August 2024, the German federal government formally responded to the Bundesrat's proposal. The statement, prepared by the Ministry of Justice, acknowledges the dangers of deepfakes. However, it does not see an immediate need for a new criminal offence. The government argues that existing laws - such as those on defamation (§ 187 StGB) and the violation of highly personal spheres through the use of images (§ 201a StGB) - already cover most scenarios involving deepfakes. In particular, the cases of child and youth pornography, which are associated with a particularly high level of damage, are already sufficiently covered by German criminal law, according to the ministry.
Points of contention
One of the Federal Government’s main criticism concerns the proposed requirement of a ‘violation of rights’ in the Bundesrat's draft. The government argues that this new offence is, in some respects, more narrowly defined than existing regulations. For example, under current German criminal law, the potential to damage someone's reputation is enough to initiate criminal proceedings for defamation, without needing to prove actual harm. The Bundesrat's draft would require an actual violation and so represent a deterioration in protection. The Government also raises concerns about the legal clarity of the proposed offence, suggesting that its wording may conflict with the principle of legal certainty (so-called Bestimmtheitsgrundsatz).
The legislative process
Following the Cabinet's response, the Bundesrat's proposal will be sent to the Bundestag (Federal Parliament) for further consideration. Although the Bundestag is not bound by the government's position, it is unlikely that the proposal will be passed without significant amendments.
Broader context: Regulation on AI-generated deepfakes in the EU and the USA
The regulation of deepfakes is not limited to Germany. The EU AI Act is set to introduce specific rules addressing the use of deepfakes, requiring clear labeling of AI-generated content to prevent deception. This legislation highlights the EU's proactive approach to regulating emerging technologies and ensuring transparency in AI applications. A detailed analysis of this new EU legislation can be found in our blog post EU AI Act unpacked #8: New rules on deepfakes.
In contrast, the United States is taking steps towards restricting the use of deepfakes, particularly in political contexts. Recent regulatory efforts - summarised by our US colleagues - aim to prohibit the generation of deepfakes that depict politicians, companies, or other entities without consent. This reflects growing concerns about the potential for deepfakes to undermine public trust and influence elections.
Moreover, the intersection of deepfakes and intellectual property (IP) rights is a significant area of concern. Questions regarding the ownership of AI-generated content and the rights to use such content are increasingly relevant. A detailed discussion on this topic can be found in a recent blog post from our US colleagues.
Outlook
The debate over regulating criminal liability for misuse of deepfakes in Germany highlights the delicate balance between protecting personal rights and maintaining legal consistency. While the Bundesrat's initiative reflects growing concerns about the misuse of digital technologies, the federal government's cautious approach suggests that any new legislation will need to be carefully crafted to avoid unintended consequences. As the debate continues, it remains to be seen how Germany will navigate the evolving challenges posed by deepfakes in the digital age.
This blogpost was created in contribution with Konstantin Burg, legal trainee in our German Public Affairs department.
