ASSEMBLY JUDICIARY COMMITTEE

STATEMENT TO

ASSEMBLY COMMITTEE SUBSTITUTE FOR

ASSEMBLY, No. 2818

STATE OF NEW JERSEY

DATED:  MAY 20, 2024

      The Assembly Judiciary Committee reports favorably an Assembly Committee Substitute for Assembly Bill No. 2818.

Prohibitions

      This bill prohibits a person from knowingly or recklessly distributing deceptive audio or visual media, also commonly known as “deepfakes,” within 90 days of an election in which a candidate or public question will appear on the ballot, with the intent to deceive a voter with false information about the candidate, public question, or the election.  The bill also prohibits a person from soliciting the creation of a deepfake with the intent to deceive a voter with false information about the candidate, public question, or the election. 

Criminal Penalties

      A first violation for either offense under this bill is a crime of the fourth degree, and a second or subsequent violation is a crime of the third degree.  A crime of the fourth degree is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both.  A crime of the third degree is punishable by a three to five year term of imprisonment, a fine of up to $15,000, or both.

Civil Remedies

      Under the bill, a registered voter may seek injunctive or other equitable relief prohibiting the distribution of a deepfake in violation of this bill.  A candidate whose voice or likeness appears in a deepfake distributed in violation of the bill may bring an action for injunctive relief or for general or special damages against the person that distributed media.  The court may also award a prevailing plaintiff reasonable attorney’s fees and costs.  However, a plaintiff’s entitlement to relief must be demonstrated by clear and convincing evidence.

Applicability

      The bill does not apply if the deepfake includes a disclaimer which is either shown or read aloud stating: “This work contains manipulated images or sound.”  The bill also contains certain free speech exceptions if a deepfake containing the disclaimer is disclosed in connection with criticism, comment, satire, parody, news reporting, teaching, scholarship, or research. 

Exempted Entities

      Additionally, the bill does not apply to interactive computer service providers pursuant to 47 U.S.C. s.230, such as websites or social media platforms, nor to developers or providers of artificial intelligence technology, provided that to the extent the developer provider allows for the public dissemination of consumer generated media, the developer or provider exercises commercially reasonable efforts to ensure that consumer generated media does not violate the bill.  The bill does not apply to television, cable, or radio stations, or other carriers of advertising, such as websites, billboards, newspapers, magazines, mobile apps, or streaming video platforms, through which an advertisement containing deceptive audio or visual media appears, when the owner, publisher, or operator of the advertising medium has no knowledge of the intent, design, or purpose of the advertiser.  Finally, the bill does not apply to broadcasters, websites, newspapers, or magazines that routinely carry news and commentary of general interest that broadcast or publish a deepfake, provided that it is done for the purpose of disseminating newsworthy facts and contains a disclaimer concerning the inaccurate nature of the deepfake.