ASSEMBLY BUDGET COMMITTEE

STATEMENT TO

[First Reprint]

ASSEMBLY COMMITTEE SUBSTITUTE FOR

ASSEMBLY, No. 2818

with committee amendments

STATE OF NEW JERSEY

DATED:  JUNE 26, 2024

      The Assembly Budget Committee reports favorably and with committee amendments Assembly Bill No. 2818 (1R)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 a disclaimer is disclosed in connection with criticism, comment, satire, parody, news reporting, teaching, scholarship, or research. 

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, where the advertising channel or medium’s role in disclosing the advertisement is limited to the selling of advertising time or space, or where an advertising channel or medium is prohibited by federal law from censoring the advertisement regardless of its content.  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 solely for the purpose of disseminating newsworthy facts and contains a disclaimer that identifies the work as a work of deceptive audio or visual media.

COMMITTEE AMENDMENTS:

      The committee amended the bill to clarify that:

      1. It shall not be a violation of this section if an actor, knowing of the deceptive nature of a work of deceptive audio or visual media, knowingly discloses that work in connection with criticism, comment, satire, parody, news reporting, teaching, scholarship, or research, provided that the work is clearly identified as containing manipulated images or sound.  The identification need not be in a manner that interferes with the viewing or listening of the work;

      2. 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, where the advertising channel or medium’s role in disclosing the advertisement is limited to the selling of advertising time or space, or where an advertising channel or medium is prohibited by federal law from censoring the advertisement regardless of its content; and

      3. 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 solely for the purpose of disseminating newsworthy facts and contains a disclaimer that identifies the work as a work of deceptive audio or visual media.

FISCAL IMPACT:

      Fiscal information is currently unavailable.