The Minnesota legislature has passed a bill aimed at combatting the dissemination of “deep fake” videos and images. The bill was passed 131 to zero and is expected to be signed into law by Governor Walz within days. Anticipating what is expected to be an explosion in the use of artificial intelligence (“AI”) to create and disseminate fake videos, the proposed law focuses on two particular concerns – fake videos depicting sexual acts of identifiable person and fake videos used in political campaigns.
PROHIBITION OF DEEP FAKE IMAGES DEPICTING SEXUAL ACTS
The law will define “deep fake” as “any video recording, motion-picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct substantially derivative thereof: (1) that is so realistic that a reasonable person would believe it depicts speech or conduct of an individual; and (2) the production of which was substantially dependent upon technical means, rather than the ability of another individual to physically or verbally impersonate such individual.
The new law will allow a cause of action (meaning a victim can assert a civil claim in court) against a person for the nonconsensual dissemination of a deep fake when a person disseminated the image with knowledge that the depicted individual did not consent to its public dissemination and the deep fake realistically depicts any of the following:
(i) the intimate parts of another individual presented as the intimate parts of the depicted individual;
(ii) artificially generated intimate parts presented as the intimate parts of the depicted individual; or
(iii) the depicted individual engaging in a sexual act; and
(3) the depicted individual is identifiable:
(i) from the deep fake itself, by the depicted individual or by another individual; or
(ii) from the personal information displayed in connection with the deep fake.
A victim bringing a civil action can seek general and special damages, including financial losses due to the dissemination of the deep fake; damages for mental anguish; an amount equal to any profit made from the dissemination of the deep fake; a civil penalty awarded to the plaintiff of an amount up to $100,000; and reasonable attorney fees. A victim can also seek a temporary or permanent injunction or restraining order to prevent further harm. The new law will also allow confidential filings to protect the privacy of the plaintiff.
The new law will also make it a crime to intentionally disseminate a deep fake when it realistically depicts the intimate parts of another individual presented as the intimate parts of the depicted individual; artificially generated intimate parts presented as the intimate parts of the depicted individual; or the depicted individual engaging in a sexual act; and the depicted individual is identifiable. A person found guilty of this crime may be sentenced to imprisonment for not more than three years or to payment of a fine of $5,000.
PROHIBITION OF DEEP FAKES IN ELECTIONS AND POLITICAL CAMPAIGNS
The law will also restrict the use of deep fake technology to influence an election, including races involving candidates for any federal, statewide, legislative, judicial, or local office including special districts, school districts, towns, home rule charter and statutory cities, and counties. This portion of the law defines “deep fake” as any video recording, motion-picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct substantially derivative thereof:
(1) that is so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct; and
(2) the production of which was substantially dependent upon technical means, rather than the ability of another individual to physically or verbally impersonate such individual.
Parodies on Saturday Night Live would not be prohibited but AI-generated videos of a candidate meant to convince viewers that the candidate said things she did not, would be prohibited. The new law means that a person who disseminates a deep fake or enters into a contract or other agreement to disseminate a deep fake is guilty of a crime if the person knows or reasonably should know that the item being disseminated is a deep fake and dissemination takes place within 90 days before an election; is made without the consent of the depicted individual; and is made with the intent to injure a candidate or influence the result of an election.
A person found guilty of this law may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both. The law will also allow a candidate injured by a violation to seek an injunction.
The law is set to become effective on August 1, 2023. Only California and Illinois have passed similar laws.
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About the Firm: The Minnesota privacy law attorneys at Trepanier MacGillis Battina P.A. can be reached at 612.455.0500. TMB is a law firm located in Minneapolis, Minnesota.