Public Citizen Model State Law on Deceptive and Fraudulent Deepfakes in Election Communications

(a) For purposes of this section, “synthetic media” means an image, an audio recording, or a video recording of an individual’s appearance, speech, or conduct that has been created or intentionally manipulated with the use of generative adversarial network techniques or other digital technology in a manner to create a realistic but false image, audio, or video.

(b) For purposes of this section, “a deceptive and fraudulent deepfake” is synthetic media that depicts a candidate or political party with the intent to injure the reputation of the candidate or party or otherwise deceive a voter that:

(1) Appears to a reasonable person to depict a real individual saying or doing something that did not actually occur in reality; or

(2) Provides a reasonable person a fundamentally different understanding or impression of the appearance, action, or speech than a reasonable person would have from an unaltered, original version of the image, audio recording, or video recording.

(c) Except as provided in subdivision (d), a person, corporation, committee, or other entity shall not, within 90 days of an election at which a candidate for elective office will appear on the ballot, distribute a synthetic media message that the person, corporation, committee or other entity knows or should have known is a deceptive and fraudulent deepfake, as defined in subdivision (b), of a candidate or party on the state or local ballot.

(d) (1) The prohibition in subdivision (c) does not apply if the audio or visual media includes a disclosure stating: “This _____ has been manipulated or generated by artificial intelligence.”

(2) The blank in the disclosure required by sub-paragraph (1) shall be filled with whichever of the following terms most accurately describes the media:

(A) Image.

(B) Video.

(C) Audio.

(3) For visual media, the text of the disclosure shall appear in a size that is easily readable by the average viewer and no smaller than the largest font size of other text appearing in the visual media. If the visual media does not include any other text, the disclosure shall appear in a size that is easily readable by the average viewer. For visual media that is video, the disclosure shall appear for the duration of the video.

(4) If the media consists of audio only, the disclosure shall be read in a clearly spoken manner and in a pitch that can be easily heard by the average listener, at the beginning of the audio, at the end of the audio, and, if the audio is greater than two minutes in length, interspersed within the audio at intervals of not greater than two minutes each.

(e) (1) Use of deceptive and fraudulent deep fake to influence an election; penalty. A candidate whose appearance, action, or speech is depicted through the use of a deceptive and fraudulent deepfake in violation of subdivision (c) may seek injunctive or other equitable relief prohibiting the publication of such deceptive and fraudulent deepfake.

(2) A person may also be held liable by the election enforcement agency of civil penalties for violating subdivision (c) without the appropriate disclosures and fined as follows:

(A) if the person commits the violation within five years of one or more prior convictions under this section, to payment of a fine of not more than $10,000;

(B) if the person commits the violation with the intent to cause violence or bodily harm, to payment of a fine of not more than $5,000; or

(C) in other cases, to payment of a fine of not more than $1,000.

(3) This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts a deceptive and fraudulent deepfake prohibited by this section as part of a bona fide newscast, news interview, news documentary, or on-the-spot coverage of bona fide news events, if the broadcast clearly acknowledges through content or a disclosure, in a manner that can be easily heard or read by the average listener or viewer, that there are questions about the authenticity of the materially deceptive audio or visual media, or in cases where federal law requires broadcasters to air advertisements from legally qualified candidates.

(4) This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast a deceptive and fraudulent deepfake and has made a good faith effort to establish the depiction is not a deceptive and fraudulent deepfake, or in cases where federal law requires broadcasters to air advertisements from legally qualified candidates.

(5) This section does not apply to an internet website, 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 publishes materially deceptive audio or visual media prohibited by this section, if the publication clearly states that the materially deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.

(6) This section does not apply to materially deceptive audio or visual media that constitutes satire or parody.

(f) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.