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AB-602 Deceptive recordings: civil actions.(2019-2020)

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Date Published: 03/28/2019 09:00 PM
AB602:v98#DOCUMENT

Amended  IN  Assembly  March 28, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 602


Introduced by Assembly Member Berman

February 14, 2019


An act to add Section 644 1708.87 to the Penal Civil Code, relating to deceptive recordings.


LEGISLATIVE COUNSEL'S DIGEST


AB 602, as amended, Berman. Crimes: deceptive recordings. Deceptive recordings: civil actions.
Existing law creates a civil cause of action for using the name, voice, signature, photograph, or likeness of another person, without their consent, in any manner, for the purpose of advertising, selling, or soliciting.
Existing law also creates a civil cause of action for capturing or attempting to capture, in a manner that is offensive to a reasonable person, any type of image or recording of a person engaging in a private, personal, or familial activity.

Existing law prohibits the distribution of an intimate image, as described, of an identifiable person that was taken under circumstances in which the persons agreed or understood that the image was to remain private.

This bill would prohibit the creation of a deceptive recording, as defined, with intent to distribute, as specified. This bill would also prohibit the willfull distribution of a deceptive video, as specified. The bill would make the violation of these prohibitions a misdemeanor. The bill would exempt from prosecution an internet service, as described, that hosts content posted by other parties.

By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

This bill would make a person who creates a deceptive recording, as defined, with the intent to distribute the recording or who willfully distributes a deceptive recording that the person knows or reasonably should have known is a deceptive recording, knowing that the recording defames the subject of the recording, liable for general and special damages that are proximately caused by those actions. The bill would exempt from liability an internet service that hosts content that is uploaded or posted by parties that are not employed by or affiliated with the internet service, subject to certain conditions, and would make the bill’s provisions inapplicable to a broadcasting station, a regularly published newspaper, and specified others who broadcast or publish a deceptive recording for the purpose of disseminating newsworthy facts.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YESNO   Local Program: YESNO  

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


SECTION 1.

 Section 1708.87 is added to the Civil Code, immediately following Section 1708.85, to read:

1708.87.
 (a) A person who creates a deceptive recording with the intent to distribute the recording, knowing that the recording defames the subject of the recording, is liable for general and special damages that are proximately caused by the creation of the deceptive recording.
(b) A person who willfully distributes a deceptive recording that the person knows, or reasonably should have known, is a deceptive recording, knowing that the recording defames the subject of the recording, is liable for general and special damages that are proximately caused by the person’s willful distribution of the deceptive recording.
(c) An internet service that hosts content that is uploaded or posted by persons that are not employed by or affiliated with that internet service shall not be liable under this section for any deceptive recording viewable on that internet service that has been uploaded or posted by that person that is not employed by or affiliated with that internet service.
(d) This section shall not apply to a broadcasting station, including a cable or satellite television operation, programmer, or producer, 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 broadcasts or publishes a deceptive recording for the purpose of disseminating newsworthy facts.
(e) As used in this section, “deceptive recording,” sometimes referred to as a “deepfake,” means any audio or video recording that has been created or altered in such a manner that it falsely appears to a reasonable observer to be an authentic recording of a person’s speech or actions. A deceptive recording does not include either of the following:
(1) A recording that is satire or parody.
(2) A recording that, because of context, content, or a clear disclosure, would not cause a reasonable person to believe that it is an authentic recording.

SECTION 1.Section 644 is added to the Penal Code, to read:
644.

(a)A person who creates a deceptive recording with the intent to distribute the recording, knowing that the recording is likely to deceive any person who views the recording, or likely to defame, slander, or embarass the subject of the recording, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment.

(b)A person who willfully distributes a deceptive recording that the person knows, or reasonably should have known, is a deceptive recording, knowing that the recording is likely to deceive any person who views the recording, or to defame, slander, or embarass the subject of the recording, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment.

(c)An internet service that hosts content that is uploaded or posted by parties that are not employed by or affiliated with that internet service shall not be prosecuted under this section for any deceptive recording viewable on that service that has been uploaded or posted by a party that is not employed by or affiliated with that internet service.

(d)As used in this section, a “deceptive recording,” sometimes referred to as a deepfake, means any audio or video recording that has been created or altered in such a manner that it falsely appears, to a reasonable observer, to be an authentic recording of a person’s actual speech or actions. A deceptive recording does not include any recording that is satire or parody, or that otherwise, because of content, context, or a clear disclosure, would not cause a reasonable person to believe that it is real.

SEC. 2.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.