Legislature grapples with three bills to address ‘deepfake’ videos

Citing a growing problem with people who take an image of a person, usually a celebrity, and super-impose it on the body of someone else known as a “deepfake”, the legislature has introduced three bills aimed at ending or at least crippling the practice. All have First Amendment implications.

The first, AB 602 by Assemblyman Mark Berman (D-Los Altos), as introduced, would have established misdemeanor liability for a person who creates a deceptive recording with the intent to distribute it, knowing that the recording is likely to deceive a person who views it, or is likely to defame, slander, or embarrass the subject of the recording.

After meeting with CNPA staff and several other groups, the author is poised to amend the bill to apply existing defamation standards to a person who creates the recording.

SB 564, by Senator Connie Leyva (D-Chino), is sponsored by the Screen Actors Guild (SAG). The bill would create a cause of action for a person who suffers harm resulting from the intentional creation and disclosure of sexually explicit material without his or her consent. The bill would also allow a plaintiff in these actions to use a pseudonym in pleadings.

SB 564 would exempt from liability any person who discloses the material in the course of reporting unlawful activity, in the course of a legal proceeding, or if the person is a member of law enforcement. Also exempt would be someone who discloses the material in relation to a matter of legitimate public concern, in a work of political or newsworthy value, or similar work or for the purposes of commentary or criticism. The bill also states sexually explicit material is not of newsworthy value because the depicted individual is a public figure.

The third bill, AB 1280 by Assemblyman Tim Grayson (D-Concord), would define a “deepfake” as a recording that has been created or altered in a manner that it falsely appears to be an authentic record of the actual speech or conduct of the individual depicted in the recording.

The bill would create a new crime when a person creates or distributes, without the subject’s consent, a deepfake that depicts a person engaging in sexual conduct. AB 1280 also would criminally prohibit a person from creating or distributing, without the depicted person’s consent, a deepfake with the intent that the deepfake coerce or deceive any voter into voting for or against a candidate or measure in an election that is occurring within 60 days.

None of the bills have yet been set to be heard by a policy committee but hearings will likely be scheduled some time in the next few weeks.