S2129

An Act concerning certain intentionally deceptive audio or visual media and elections and supplementing Title 19 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Candidate” means a person seeking election or reelection to a public office of the State or of a county, municipality, school district, or any other public office thereof.

“Deceptive audio or visual media” means any video recording, motion picture film, sound recording, electronic image, photograph, any technological representation of speech or conduct substantially derivative thereof, or any forgery or facsimile of a document or writing, that appears to a reasonable person to realistically depict any speech, conduct, or writing of a person who did not in fact engage in the speech, conduct, or writing, and the production of which was substantially dependent upon technical means, rather than the ability of another person to physically or verbally impersonate the person.

“Disclose” or “disclosure” means to sell, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise, offer, share, or make available via the Internet or by any other means, whether or not for pecuniary gain.

“Interactive computer service provider” shall have the same meaning as set forth in 47 U.S.C. s.230.

“Solicit” means to offer to create or generate, or to advertise the ability to create or generate, a work of deceptive audio or visual media, whether or not for hire, commission, monetary remuneration, or pecuniary gain. “Solicit” shall also mean to request the creation or generation of a work of deceptive audio or visual media, whether or not for monetary remuneration or compensation.

“Video streaming service” means a service that transmits video content over the Internet that is played continuously without download.

2. a. (1) A natural person commits a crime of the fourth degree if, within 90 days of an election in which a candidate or public question will appear on the ballot, the person knowingly or recklessly discloses deceptive audio or visual media with the intent to deceive a voter with false information about the candidate, the public question, or the election. A second or subsequent violation of this subsection shall be a crime of the third degree.

(2) A naturalperson commits a crime of the fourth degree if, within 90 days of an election in which a candidate or public question will appear on the ballot, the person solicits a work of deceptive audio or visual media with the intent to deceive a voter with false information about the candidate, the public question, or the election. A second or subsequent violation of this subsection shall be a crime of the third degree.

b. (1) The provisions of subsection a. of this section shall not apply if the deceptive audio or visual media consists of solely de minimis alterations of a person’s image or appearance, or includes a disclaimer in accordance with paragraph (2) of this subsection stating: “This work contains manipulated images or sound.”

(2) (a) If the deceptive audio or visual media consists of a video or image, the disclaimer shall appear for the entire duration of the video or image, and the text of the disclaimer shall appear in a size, color, and typeface that is easily readable by a reasonable observer.

(b) If the deceptive audio or visual media consists of audio only, the disclaimer shall be read at the beginning of the audio, in a clearly spoken manner and in a pitch and at a speed that can be easily heard and understood by a reasonable listener.

c. (1) A registered voter eligible to vote in an election in which a candidate or public question will appear on the ballot may seek injunctive or other equitable relief enjoining the disclosure of deceptive audio or visual media that was generated with the intent to deceive a voter with false information about the candidate, the public question, or the election in violation of subsection a. of this section. An action under this subsection shall be initiated by filing an application for an Order to Show Cause in the Superior Court pursuant to the Rules of Court.

(2) A candidate whose voice or likeness appears in deceptive audio or visual media disclosed with the intent to deceive a voter with false information about the candidate or the election in violation of subsection a. of this section may bring an action for injunctive or other equitable relief, and general or special damages, against the person that disclosed the deceptive audio or visual media. This subsection shall not be construed to limit or preclude a plaintiff from securing or recovering any other available remedy.

(3) A plaintiff’s entitlement to civil relief pursuant to this subsection shall be demonstrated by clear and convincing evidence. The court may award a prevailing plaintiff under this subsection reasonable attorney’s fees and costs.

d. (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) This section shall not apply to an interactive computer service provider, cloud services provider, or commercial developer or provider of artificial intelligence technology, where such developer or provider is not deemed to be a publisher, speaker, or information content provider pursuant to 47 U.S.C. s.230, andshall not be construed to alter or negate any rights, obligations, or immunities of an interactive computer service provider or cloud services provider pursuant to 47 U.S.C. s.230.

(3) This section shall not apply to any broadcasting station, cable service, radio station, telecommunications carrier, or television station, as those terms are defined pursuant to 47 U.S.C. s.153, or to any billboard, Internet website, mobile application, video streaming service, newspaper, magazine, publication, printed matter, or other advertising channel or medium 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.

(4) This section shall not apply to any broadcasting station, including a cable or satellite television company, programmer, or producer, an Internet website, video streaming service, or a regularly published newspaper, magazine, or other periodical of general circulation, including an Internet or electronic publication, that routinely carries news and commentary of general interest, and that broadcasts or publishes any deceptive audio or visual media prohibited by this section solely for the purpose of disseminating newsworthy facts; provided that if the deceptive nature of the work is known or verified, the broadcast or publication shall clearly contain a disclaimer which is either shown or read aloud that identifies the deceptive audio or visual media.

(5) It shall not be a violation of this section to disclose any deceptive audio or visual media to law enforcement officers in connection with a criminal investigation or prosecution of a violation of this section; pursuant to a subpoena or court order requiring the disclosure of a work of deceptive audio or visual media; 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.

STATEMENT

Prohibitions

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

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

The bill does not apply to interactive computer service providers, cloud services providers, or commercial 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 video streaming 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.