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Emergency Act Signed into Law To Prevent Digital Impersonation of Certain Political Candidates

The rapid expansion of artificial intelligence deep fake technology has caused Arizona to take critical steps to help protect the integrity of upcoming elections. Calling it an “emergency measure that is necessary to preserve public peace, health or safety and is operative immediately as provided by law”, Arizona Governor Katie Hobbs signed H.B. 2394, making the digital impersonation of a candidate for public or political party office, without consent, unlawful. 

A candidate for public office or political party office who will appear on the ballot, or any Arizona citizen, can bring an action within 2 years after the person knows, or should have known with the exercise of reasonable diligence, that the digital impersonation was published. The primary remedy for violating this law is preliminary and permanent declaratory relief. 

To prevail, one must prove all of the following: (a) A digital impersonation of the person was published to one or more persons without the person’s consent; and (b) at the time of publication either the publisher did not reasonably convey to the person to whom the publication was made that the recording or image was a digital impersonation or that its authenticity was disputed, or that it would be obvious to a reasonable person that the recording or digital image was a digital impersonation. 

To obtain preliminary declaratory relief, in addition to those elements, a plaintiff must also prove at least one of the following: (1) the person is a candidate for public or political party office and an election is scheduled to be held within 180 days; (2) the digital impersonation depicts certain sexual activity or imagery; (3) the digital impersonation depicts the person engaging in a criminal act; or (4) absent preliminary relief the person can be reasonably expected to suffer significant personal or financial hardship or loss of employment opportunities or irreparable reputational harm.

Damages are also permitted if a plaintiff can prove several elements, some akin to the “Actual Malice” standard applied in the context of defamation.

The burden of proof for preliminary declaratory relief, injunctive relief, or damages is the heightened “clear and convincing evidence” standard. But to obtain permanent declaratory relief, the burden is a more relaxed “preponderance of the evidence” standard. The act, however, is to be “narrowly construed in favor of both free expression and open discourse on matters of public concern and artistic expression …."

If the digital impersonation was part of a paid advertisement, a lawsuit can only be brought against the person or entity that originated, ordered, placed, or paid for the advertisement. But, a provider of an interactive computer service may not be subject to a lawsuit under the act for publishing information that is provided by another information content provider. 

The timing for resolving a lawsuit under the act is swift. The superior court must rule on any motion for preliminary declaratory relief within just two days after the judicial officer presiding over the lawsuit receives the complaint and associated motion. 

This sweeping legislation is all new to Arizona and its implications, from enforcement to deterrence, will not be fully realized for some time. Even so, it is clear that the proliferation of artificial intelligence, and its misuse, has become the focus of legislative action and stern penalties exist for those who would use artificial intelligence to harm others. Arizona is among the first of several states to begin to legislate protections for those who could be harmed by the reckless use of technological advancement in the digital age to inflict reputational harm upon others in an effort to engineer election results. Whatever the impact this legislation has may be uncertain, but without question, those who publish political content, and those who are subject to being published in political content, have much to consider when it comes to what does and does not violate this new law.

Sherman & Howard’s Artificial Intelligence, Privacy, Cybersecurity and Emerging Technologies group is working to stay abreast of these new developments and the implications for our clients. This article is part of a series of client advisories that will discuss the potential benefits and drawbacks of generative AI in the workplace, relevant statutory and regulatory guidance, litigation risks, and other critical issues. If you’d like to subscribe to these advisories, click HERE.

This sweeping legislation is all new to Arizona and its implications, from enforcement to deterrence, will not be fully realized for some time. Even so, it is clear that the proliferation of artificial intelligence, and its misuse, has become the focus of legislative action and stern penalties exist for those who would use artificial intelligence to harm others.

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ai - privacy - cybersecurity - & emerging technologies, civil & commercial litigation, intellectual property, internal & government investigations, media & telecommunications, litigation trials & appeals