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AB-730 Elections: deceptive audio or visual media.(2019-2020)

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Date Published: 08/13/2019 10:00 AM
AB730:v96#DOCUMENT

Amended  IN  Senate  August 13, 2019
Amended  IN  Senate  June 25, 2019
Amended  IN  Senate  June 19, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 730


Introduced by Assembly Member Berman

February 19, 2019


An act to repeal and add Section 20010 of the Elections Code, relating to elections.


LEGISLATIVE COUNSEL'S DIGEST


AB 730, as amended, Berman. Elections: deceptive audio or visual media.
Existing law prohibits a person or specified entity from, with actual malice, producing, distributing, publishing, or broadcasting campaign material, as defined, that contains (1) a picture or photograph of a person or persons into which the image of a candidate for public office is superimposed or (2) a picture or photograph of a candidate for public office into which the image of another person or persons is superimposed, unless the campaign material contains a specified disclosure.
This bill would repeal these provisions and instead prohibit a person, committee, or other entity, within 60 days of an election at which a candidate for elective office will appear on the ballot, from knowingly or recklessly distributing distributing with actual malice materially deceptive audio or visual media of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate, unless the media includes a disclosure stating that the media has been manipulated. The bill would define “deceptive “materially deceptive audio or visual media” to mean an image or audio or video visual recording that has been intentionally manipulated in such a manner that it would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of the candidate depicted in the image or audio or video recording. to alter the appearance, speech, or conduct of a candidate so as to create a significant likelihood of causing a reasonable person to understand or experience the expressive content of the image or recording in a manner that is fundamentally different from the understanding or experience the person would have if the person were hearing or seeing the unaltered original version of the image or recording.
The bill would authorize a candidate for elective office whose voice or likeness appears in audio or visual media distributed in violation of this section or a registered voter to seek injunctive or other equitable relief prohibiting the distribution of deceptive audio or visual media. It would also authorize a candidate whose voice or likeness appears in deceptive audio or visual media to bring an action for general or special damages against the person, committee, or other entity that distributed the media, and would authorize the court to award a prevailing candidate party reasonable attorney’s fees and costs.
The bill would provide an exemption for entities that routinely broadcast or publish news and commentary of general interest, and that distribute prohibited deceptive audio or visual media for the purpose of disseminating newsworthy facts, if the broadcast or publication clearly states that the media does not accurately represent the speech or conduct of the candidate. exemptions for all of the following: (1) a broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast deceptive audio or visual media, unless certain conditions are met, (2) a broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts deceptive audio or visual media, if the broadcast clearly states that the deceptive audio or visual media does not accurately represent the speech or conduct of the candidate, and (3) 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 deceptive audio or visual media, if the broadcast or publication clearly states that the deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 Section 20010 of the Elections Code is repealed.

SEC. 2.

 Section 20010 is added to the Elections Code, to read:

20010.
 (a) Except as provided in subdivision (b), a person, committee, as defined in Section 82013 of the Government Code, or other entity shall not, within 60 days of an election at which a candidate for elective office will appear on the ballot, knowingly or recklessly distribute with actual malice distribute materially deceptive audio or visual media, as defined in subdivision (e), of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.
(b) (1) The prohibition in subdivision (a) does not apply if the audio or visual media includes a disclosure stating: “This _____ has been manipulated.”
(2) The blank in the disclosure required by paragraph (1) shall be filled with whichever of the following terms most accurately describes the media:
(A) Image.
(B) Video.
(C) Audio.
(3) (A) 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.
(B) If the media consists of audio only, the disclosure shall be read at the beginning of the audio, in a clearly spoken manner and in a pitch that can be easily heard by the average listener. listener, at the beginning of the audio, at the end of the audio, and, if the audio is greater than two minutes in length, then also interspersed within the audio at intervals of not greater than two minutes each.
(c) (1) A candidate for elective office whose voice or likeness appears in a deceptive audio or visual media distributed in violation of this section or a registered voter may seek injunctive or other equitable relief prohibiting the distribution of audio or visual media in violation of this section. An action under this paragraph shall have priority over other civil matters. be entitled to precedence in accordance with Section 35 of the Code of Civil Procedure.
(2) A candidate for elective office whose voice or likeness appears in audio or visual media distributed in violation of this section may bring an action for general or special damages against the person, committee, or other entity that distributed the audio or visual media. The court may also award a prevailing plaintiff 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.
(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.
(d) (1) This section shall not be construed to alter or negate any rights, obligations, or immunities of an interactive service provider under Section 230 of Title 47 of the United States Code.

(2)This section does not apply to a broadcasting station, including a cable or satellite television operator, 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 deceptive audio or visual media prohibited by this section for the purpose of disseminating newsworthy facts, if the broadcast or publication clearly states that the deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.

(e)As used in this section, “deceptive audio or visual media” means an image or audio or video recording that has been intentionally manipulated in such a manner that it would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of the candidate depicted in the image or audio or video recording.

(2) (A) This section does not apply to a broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast deceptive audio or visual media, unless all of the following is true of the broadcasting station, including a cable or satellite television operator, programmer, or producer:
(i) It knew or should have known the deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.
(ii) It failed to clearly state that the deceptive audio or visual media violates this section, unless otherwise prohibited by federal law.
(B) This section does not apply to a broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts deceptive audio or visual media prohibited by this section if the broadcast clearly states that the deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.
(C) This section does not apply to 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 deceptive audio or visual media prohibited by this section, if the broadcast or publication clearly states that the deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.
(e) As used in this section, “materially deceptive audio or visual media” means an image or an audio or visual recording that has been intentionally manipulated to alter the appearance, speech, or conduct of a candidate so as to create a significant likelihood of causing a reasonable person to understand or experience the expressive content of the image or recording in a manner that is fundamentally different from the understanding or experience the person would have if the person were hearing or seeing the unaltered original version of the image or recording.
(f) 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.