S2544

An Act establishing criminal penalties for the production and dissemination of deceptive audio or visual media and supplementing Title 2C of the New Jersey Statutes.

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

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

“Deceptive audio or visual media” means any video recording, motion picture film, sound recording, electronic image, photograph, or any technological representation of speech or conduct substantially derivative thereof that appears to authentically depict any speech or conduct of a person who did not in fact engage in the speech or conduct 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” means to sell, manufacture, 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 for pecuniary gain or not.

b. A person commits a crime of the third degree if, without license or privilege to do so, the person generates or creates, or causes to be generated or created, a work of deceptive audio or visual media for an unlawful purpose.

The trier of fact may infer that the deceptive audio or visual media was generated or created for an unlawful purpose if the work is subsequently used as part of a plan or course of conduct to commit one or more of the following offenses:

(1) harassment, pursuant to N.J.S.2C:33-4;

(2) cyber harassment, pursuant to section 1 of P.L.2013, c.272 (C.2C:33-4.1);

(3) theft by deception, pursuant to N.J.S.2C:20-4;

(4) theft by extortion, pursuant to N.J.S.2C:20-5;

(5) false incrimination or reports, pursuant to N.J.S.2C:28-4; or

(6) invasion of privacy, pursuant to section 1 of P.L.2003, c.206 (C.2C:14-9).

c. A person commits a crime of the third degree if, without license or privilege to do so, the person discloses a work of deceptive audio or visual media that the person knows or reasonably should know was created in violation of subsection b. of this section without clearly identifying it as a work of deceptive audio or visual media.

In addition to any term of imprisonment imposed pursuant to N.J.S.2C:43-6 and notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $30,000 may be imposed for a violation of this subsection.

d. A person who violates the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be liable to the individual depicted in the deceptive audio or visual media, who may bring a civil action in the Superior Court. The court may award:

(1) actual damages, but not less than liquidated damages computed at the rate of $1,000 for each violation of P.L. , c. (C. ) (pending before the Legislature as this bill);

(2) punitive damages upon proof of willful or reckless disregard of the law;

(3) reasonable attorney's fees and other litigation costs reasonably incurred; and

(4) such other preliminary and equitable relief as the court determines appropriate.

A conviction for a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be a prerequisite for a civil action brought pursuant to this subsection. The civil action authorized by this subsection shall be in addition to, and not in lieu of, any other civil action, injunctive relief, or other remedy available at law, including, but not limited to, a civil action for common law defamation, libel, slander, invasion of privacy, false light, misappropriation of identity, intrusion of privacy, or public disclosure of private facts.

e. A final judgment rendered in favor of the State in any criminal proceeding shall estop the person from denying the same conduct in any civil action brought pursuant to this section.

f. (1) This section shall not be construed to alter or negate any rights, obligations, or immunities of an interactive computer service provider pursuant to 47 U.S.C. s.230.

(2) Criminal and civil penalties imposed pursuant to this section shall not apply to the news media or a news agency, as those terms are defined in section 2 of P.L.1977, c.253 (C.2A:84A-21a), unless the news media or news agency broadcasts or publishes a work of deceptive audio or visual media, created in violation of this section, that the news media or news agency knows was created in violation of this section and fails to clearly identify the work as deceptive audio or visual media.

2. This act shall take effect immediately.

STATEMENT

This bill establishes criminal penalties for production or dissemination of deceptive audio or visual media, commonly known as “deepfakes.”

The bill defines deceptive audio or visual media as “any video recording, motion picture film, sound recording, electronic image, photograph, or any technological representation of speech or conduct substantially derivative thereof that appears to authentically depict any speech or conduct of a person who did not in fact engage in the speech or conduct 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.”

The bill establishes a crime of the third degree if a person, without license or privilege to do so, generates or creates, or causes to be generated or created, deceptive audio or visual media for an unlawful purpose. The bill provides that the trier of fact may infer that the deceptive audio or visual media was generated or created for an unlawful purpose if the work is subsequently used as part of a plan or course of conduct to commit one or more of the following:

(1) harassment;

(2) cyber harassment;

(3) theft by deception;

(4) theft by extortion;

(5) false incrimination or reports; or

(6)invasion of privacy.

The bill also establishes a crime of the third degree if a person, without license or privilege to do so, discloses a work of deceptive audio or visual media that the person knows or should reasonably know was created in violation of the provisions of this bill without clearly identifying it as a work of deceptive audio or visual media. A crime of the third degree is ordinarily punishable by a term of three to five years imprisonment, a fine of up to $15,000, or both. However, the bill provides that a court may impose a fine of up to $30,000.

Under the bill, a person would be liable to the individual depicted in the deceptive audio or visual media, who may bring a civil action in the Superior Court. The bill further provides that a conviction is not to be a prerequisite for a civil action. The civil action authorized by this bill is to be in addition to, and not in lieu of any other civil action, injunctive relief, or other remedy available at law. The bill further provides that a final judgment rendered in favor of the State in any criminal proceeding prevents the person from denying the same conduct in any civil action brought under the bill.

The bill provides that it should not be construed to alter or negate any rights, obligations, or immunities of an interactive computer service provider pursuant to 47 U.S.C. s.230. The bill also provides that criminal and civil penalties imposed pursuant to the bill only apply to the news media or a news agency if the news media or agency broadcasts or publishes a work of deceptive audio or visual media that the news media or agency knows was created in violation of the bill, and fails to clearly identify the work as deceptive audio or visual media.