Bill Text: CA AB2839 | 2023-2024 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Elections: deceptive media in advertisements.

Spectrum: Partisan Bill (Democrat 12-0)

Status: (Introduced) 2024-05-06 - Re-referred to Com. on APPR. [AB2839 Detail]

Download: California-2023-AB2839-Introduced.html

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CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 2839

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Introduced by Assembly Member Pellerin

February 15, 2024

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An act to amend Section 35 of the Code of Civil Procedure, and to add Section 20012 to the Elections Code, relating to elections.

LEGISLATIVE COUNSEL'S DIGEST

AB 2839, as introduced, Pellerin. Elections: deceptive media in advertisements.

Existing law prohibits certain distribution of materially deceptive audio or visual media of a candidate within 60 days of an election at which the candidate will appear on the ballot, unless the media includes a disclosure stating that the media has been manipulated, subject to specified exemptions. Existing law authorizes a candidate whose voice or likeness appears in audio or visual media distributed in violation of these provisions to file specified actions, and it requires a court to place such proceedings on the calendar in the order of their date of filing and give the proceedings precedence.

This bill would prohibit a person, committee, or other entity from knowingly distributing an advertisement or other election communication, as defined, that contains certain materially deceptive and digitally altered or digitally created images or audio or video files, as defined, with the intent to influence an election or solicit funds for a candidate or campaign, subject to specified exemptions. The bill would apply this prohibition within 120 days of an election and, in specified cases, 60 days after an election. The bill would authorize a recipient of a materially deceptive and digitally altered or digitally created image or audio or video file distributed in violation of this section, or a candidate or committee participating in the election, to file a civil action to enjoin the distribution of the media and to seek damages against the person, committee, or other entity that distributed it. The bill would require a court to place such proceedings on the calendar in the order of their date of filing and give the proceedings precedence.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 35 of the Code of Civil Procedure, as amended by Section 1 of Chapter 343 of the Statutes of 2023, is amended to read:

35.

 (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, actions under Section 20010 or 20012 of the Elections Code, and actions under Chapter 2 (commencing with Section 21100) of Division 21 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b) This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.

SEC. 2.

 Section 35 of the Code of Civil Procedure, as amended by Section 2 of Chapter 343 of the Statutes of 2023, is amended to read:

35.

 (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, actions under Section 20012 of the Elections Code, and actions under Chapter 2 (commencing with Section 21100) of Division 21 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b) This section shall become operative January 1, 2027.

SEC. 3.

 Section 20012 is added to the Elections Code, to read:

20012.

 (a) The Legislature finds and declares as follows:

(1) California is entering its first-ever artificial intelligence (AI) election, in which disinformation powered by generative AI will pollute our information ecosystems like never before. Voters will not know what images, audio, or video they can trust.

(2) In a few clicks, using current technology, bad actors now have the power to create a false image of a candidate accepting a bribe, or a fake video of an elections official “caught on tape” saying that voting machines are not secure, or generate an artificial robocall in the Governor’s voice telling millions of Californians their voting site has changed.

(3) In the lead-up to the 2024 presidential elections, candidates and parties are already creating and distributing deepfake images and audio and video content. These fake images or files can skew election results, even if they use older methods of distribution, such as mail, television, telephone, and text, and undermine trust in the ballot counting process.

(4) In order to ensure California elections are free and fair, California must, for a limited time before and after elections, prevent the use of deepfakes and disinformation meant to prevent voters from voting and deceive voters based on fraudulent content.

(b) (1) A person, committee, or other entity shall not, during the time period set forth in subdivision (c), with the intent to influence an election or solicit funds for a candidate or campaign, knowingly distribute an advertisement or other election communication containing materially deceptive and digitally altered or digitally created images or audio or video files of any the following:

(A) A candidate portrayed as doing or saying something that the candidate did not do or say.

(B) An officer holding an election or conducting a canvass portrayed as doing or saying something in connection with the election that the officer holding an election or conducting a canvass did not do or say.

(C) An elected official portrayed as doing or saying something in connection with the election that the elected official did not do or say.

(D) A voting machine, ballot, voting site, or other elections-related property or equipment portrayed in a materially false way.

(2) Notwithstanding subparagraph (A) of paragraph (1), a candidate may portray themself as doing or saying something that the candidate did not do or say, but only if the image or audio or video file includes a disclosure stating “This ____ has been manipulated.” and complies with the following requirements:

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

(i) Image.

(ii) Audio.

(iii) Video.

(B) (i) 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.

(ii) 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.

(c) The prohibition in subdivision (b) applies only during the following time periods:

(1) One hundred twenty days before any election.

(2) For elections officials and items set forth in subparagraphs (B) and (C) of paragraph (1) of subdivision (b), 120 days before any election through 60 days after the election, inclusive.

(d) (1) A recipient of a materially deceptive and digitally altered or digitally created image or audio or video file distributed in violation of this section, or a candidate or committee participating in the election, may seek injunctive or other equitable relief prohibiting the distribution of the materially deceptive and digitally altered or digitally created image or audio or video file in violation of this section. The court shall also award a prevailing plaintiff reasonable attorney’s fees and costs. An action under this paragraph shall be entitled to precedence in accordance with Section 35 of the Code of Civil Procedure.

(2) A recipient of a materially deceptive and digitally altered or digitally created image or audio or video file distributed in violation of this section, or a candidate or committee participating in the election, may bring an action for general or special damages against the person, committee, or other entity that distributed the materially deceptive and digitally altered or digitally created image or audio or video file in violation of this section. The court shall also award a prevailing party reasonable attorney’s fees and costs. This subdivision shall not be construed to limit or preclude a plaintiff from securing or recovering any other available remedy at law or equity.

(3) 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.

(e) (1) This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts any materially deceptive and digitally altered or digitally created image or audio or video file 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 the materially deceptive audio or visual media does not accurately represent any actual event, occurrence, appearance, speech, or expressive conduct.

(2) This section does not apply to 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 any materially deceptive and digitally altered or digitally created image or audio or video file prohibited by this section, if the publication clearly states that the materially deceptive and digitally altered or digitally created image or audio or video file does not accurately represent any actual event, occurrence, appearance, speech, or expressive conduct.

(3) This section does not apply to a materially deceptive and digitally altered or digitally created image or audio or video file that constitutes satire or parody.

(f) For purposes of this section, the following definitions apply:

(1) “Advertisement” means any general or public communication that is authorized or paid for the purpose of supporting or opposing a candidate for elective office or a ballot measure and that is broadcast by or through television, radio, telephone, or text, or disseminated by print media, including billboards, video billboards or screens, and other similar types of advertising.

(2) “Committee” means a committee as defined in Section 82013 of the Government Code.

(3) “Election communication” means any general or public communication not covered under “advertisement” that is broadcast by or through television, radio, telephone, or text, or disseminated by print media, including billboards, video billboards or screens, and other similar types of communications, that concerns any of the following:

(A) A candidate for office or ballot measure.

(B) Voting or refraining from voting in an election.

(C) The canvass of the vote.

(4) (A) “Materially deceptive and digitally modified or created image or audio or video file” means an image or an audio or video file that has been intentionally manipulated in a manner such that all of the following conditions are met:

(i) The image or audio or video file is the product of digital manipulation, artificial intelligence, or machine learning, including deep learning techniques, that merges, combines, replaces, or superimposes content onto an image or an audio or video file, creating an image or an audio or video file that appears authentic, or generates an inauthentic image or an audio or video file that appears authentic.

(ii) (I) The image or audio or video file represents a false portrayal of a candidate for elective office, an elected official, an elections official, or a voting machine, ballot, voting site, or other elections property or equipment.

(II) For the purposes of this clause, “a false portrayal of the candidate for elective office, an elected official, an elections official, or a voting machine, ballot, voting site, or other elections property or equipment” means the image or audio or video file would cause a reasonable person to have a fundamentally different understanding or impression of the expressive content of the image or audio or video file than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video file.

(iii) The person, committee, or other entity distributed the image or audio or video file knowing the portrayal of the candidate for elective office, the elected official, the elections official, or the voting machine, ballot, voting site, or other elections property or equipment was false or with a reckless disregard for the true portrayal of the candidate, the elected official, the elections official, or the voting machine, ballot, voting site, or other elections property or equipment. This clause is presumed when an image or audio or video file has been intentionally manipulated to represent a false portrayal of the candidate for elective office, the elected official, the elections official, or the voting machine, ballot, voting site, or other elections property or equipment, but may be rebutted.

(B) “Materially deceptive and digitally modified or created image or audio or video file” does not include any image or audio or video file that contains only minor modifications that do not lead to significant changes to the perceived contents or meaning of the content. Minor changes include changes to brightness or contrast of images, removal of background noise in audio, and other minor changes that do not impact the content of the image or audio or video file.

(5) “Officer holding an election or conducting a canvass” has the same meaning as in Section 18502.

(6) “Recipient” includes a person who views, hears, or otherwise perceives an image or audio or video file that was initially distributed in violation of this section.

(g) The provisions of this section apply regardless of the language used in the advertisement or solicitation. If the language used is not English, the disclosure required by paragraph (2) of subdivision (a) shall appear in the language used in the advertisement or solicitation.

(h) 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.