A4985

An Act concerning deceptive media content about a candidate for elective public office and supplementing chapter 34 of Title 19 of the Revised Statutes.

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

1. a. Except as provided in subsection b. of this section, a person shall not, within 60 days of an election at which a candidate, as defined in section 3 of P.L.1973, c.83 (C.19:44A-3), will appear on the ballot, distribute, with actual malice, materially deceptive audio or visual media content of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.

As used in this section, “materially deceptive audio or visual media content” means an image or an audio or video recording of a candidate’s appearance, speech, or conduct that has been intentionally manipulated in a manner such that the image or audio or video recording would falsely appear to a reasonable person to be authentic and would cause a reasonable person to have a fundamentally different understanding or impression of the expressive content of the image or audio or video recording than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video recording. “Person” shall have the meaning prescribed for that term under R.S.1:1-2.

b. Subsection a. of this section shall not apply if the audio or visual media content includes a disclosure stating: “This content has been manipulated.” The disclosure shall specify whether the content that has been manipulated is in the form of an image, video, or audio.

For visual media content, the text of the disclosure shall appear in a size and typeface that is easily readable by the average viewer. If the visual media content includes other text, the size of the text of the disclosure shall be no smaller than the largest font size of other text appearing in the visual media content.

For visual media content that is video, the disclosure shall appear for the duration of the video.

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

c. A candidate whose voice or likeness appears in materially deceptive audio or visual media content distributed in violation of this section may seek injunctive or other equitable relief prohibiting the distribution of audio or visual media content in violation of this section, bring an action for general or special damages against the person or other entity that distributed the materially deceptive audio or visual media content, or both. In any civil action alleging a violation of this section, the plaintiff shall bear the burden of establishing the violation through clear and convincing evidence.

The court may award a prevailing party reasonable attorney’s fees and costs.

This subsection shall not be construed to limit or preclude a plaintiff from securing or recovering any other available remedy.

d. This section shall not apply to:

(1) a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts materially deceptive audio or visual media content 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 content;

(2) a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast materially deceptive audio or visual media content;

(3) 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 content prohibited by this section, if the publication clearly states that the materially deceptive audio or visual media content does not accurately represent the speech or conduct of the candidate; or

(4) materially deceptive audio or visual media content that constitutes satire or parody.

e. This section shall not be construed to alter or negate any rights, obligations, or immunities of an interactive service provider under Section 230 of Title 47 of the United States Code (47 U.S.C. s.230).

2. This act shall take effect and shall expire on January 1, 2022.

STATEMENT

This bill would prohibit a person or other entity, within 60 days of any election at which a candidate for elective public office will appear on the ballot, from distributing with actual malice materially deceptive audio or visual media content of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate, unless the content includes a disclosure stating that the content has been manipulated. The bill would expire on January 1, 2022.

The bill defines “materially deceptive audio or visual media content” to mean an image or audio or video recording of a candidate’s appearance, speech, or conduct that has been intentionally manipulated in a manner such that the image or audio or video recording would falsely appear to a reasonable person to be authentic

and would cause a reasonable person to have a fundamentally different understanding or impression of the expressive content of the image or audio or video recording than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video recording.

The bill would authorize, until January 1, 2022, a candidate for elective public office whose voice or likeness appears in audio or visual media content distributed in violation of the bill to seek injunctive or other equitable relief prohibiting the distribution of the deceptive audio or visual media content. It would also authorize a candidate whose voice or likeness appears in the deceptive audio or visual media to bring an action for general or special damages against the person or other entity that distributed the content, and would authorize the court to award a prevailing party reasonable attorney’s fees and costs.

The bill would provide exemptions for all of the following:

(1) a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast materially deceptive audio or visual media content;

(2) materially deceptive audio or visual media content that constitutes satire or parody,

(3) a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts materially deceptive audio or visual media content 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 that there are questions about the authenticity of the materially deceptive audio or visual media content; and

(4) 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 the materially deceptive audio or visual media content, if the publication clearly states that the materially deceptive audio or visual media content does not accurately represent the speech or conduct of the candidate.