Manipulated Media: Examining California’s Deepfake Bill

A.B. 730, 2019 Leg., Reg. Sess. (Cal. 2019) (Elections: deceptive audio or visual media).

On October 3, 2019, California Governor Gavin Newsom signed A.B. 730 into law. The legislation, written by Assemblyman Marc Berman (D-Palo Alto), forbids maliciously distributing or creating “materially deceptive” media about any candidate within 60 days of an election and will remain in effect until January 1, 2023 (unless modified by a future statute). Inspired by the recent video manipulation trend nicknamed “deepfakes,” the law considers a doctored photo, video, or audio clip to be deceptive if a “reasonable person” would have a “fundamentally different understanding or impression” of it relative to the original content. Political candidates affected by such media can pursue both damages and equitable relief, such as an injunction to halt the dissemination of the content, under the law.

Compliance with this new law extends not only to individual candidates but also to political committees and organizations. There is no liability, however, for the broadcasters and websites paid to disseminate such doctored media so long as they provide clear disclosures to the public alongside the content. The amended Elections Code establishes this disclosure criteria.

Critics of the legislation have expressed concerns that the law might restrict free speech. Although the legislation does provide exceptions for deceptive media that is satirical in nature, the Institute for Free Speech (“IFS”) called the California law a “bad omen,” focusing on the impact the law could have on parody and political commentary. IFS also notes that a wide range of creators could be affected by such legislation, “from random Facebook accounts and YouTubers all the way up to the largest platforms hosting the content.” The California Broadcasters Association and the California News Publishers Association both oppose A.B. 730 as well, contending that the law might prompt broadcasters to refrain from running political ads out of fear of airing unverified, deceptive content. Conversely, advocates of efforts to restrict deepfakes point to the confined scope of such interventions, given that they only apply to content in electoral contexts. California is not the first state to prohibit deceptive political media. Most notably, Texas actually criminalized “deepfakes” in its Elections Code in September. As other states, and the United States Congress, weigh options to combat manipulated media ahead of the 2020 elections, this is certainly not the last we will hear of efforts to control “deepfakes.”