ASSEMBLY APPROPRIATIONS COMMITTEE
STATEMENT TO
ASSEMBLY COMMITTEE SUBSTITUTE FOR
ASSEMBLY, No. 2818
with committee amendments
STATE OF NEW JERSEY
DATED: JUNE 24, 2024
The Assembly Appropriations Committee reports favorably and with committee amendments Assembly Bill No. 2818 (ACS).
Prohibitions
As amended, this bill prohibits a natural 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 natural 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
As amended, the bill does not apply to de minimis alterations of a person’s image or appearance, or 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. If the deceptive nature of the work is unknown or unverified, the person disclosing the work must clearly identify the work as a possible work of deceptive audio or visual media.
Exempted Entities
As amended, the bill does not apply to interactive computer service providers, cloud services providers, or developers or providers of artificial intelligence technology pursuant to 47 U.S.C. s.230. 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. 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 or, if the deceptive nature of the work is unknown or unverified, the broadcast or publication must clearly contain a disclaimer which is either shown or read aloud that identifies the work as a possible work of deceptive audio or visual media.
COMMITTEE AMENDMENTS:
The committee amended the bill to clarify that:
1. The provisions of the bill are applicable to natural persons;
2. The provisions of the bill would not be applicable to de minimis alterations of a person’s image or appearance;
3. If the deceptive nature of the work is unknown or unverified, a person disclosing a possible deepfake is required to clearly identify the work as a possible work of deceptive audio or visual media in order to comply with the bill;
4. The bill will not apply to an interactive computer service provider, cloud services provider, or commercial developer or provider of artificial intelligence technology;
5. The bill no longer requires that an interactive computer service provider, cloud services provider, or commercial developer or provider of artificial intelligence technology exercise commercially reasonable efforts to ensure that consumer generated media does not violate the bill;
6. The bill will not apply to advertisers whether or not the advertiser has knowledge of the intent, design, or purpose of the advertiser; and
7. Disclosure of a deepfake can be allowed in connection with a law enforcement investigation, pursuant to a court order, or in furtherance of an investigation concerning fraud, cybersecurity, identity theft, harassment, or a violation of a commercial computer network’s contractual terms of service.
FISCAL IMPACT:
Fiscal information for this bill is currently unavailable.