United States - Michigan - Deceptive Media Prohibition (HB 5144)

Overview

Public Act 265 of 2023, originating from House Bill 5144, amends the Michigan Election Law (1954 PA 116, MCL 168.1 to 168.992) by adding Section 932f. This section specifically addresses the distribution of materially deceptive media, commonly referred to as 'deepfakes,' in the context of elections. The act prohibits the distribution of such media within a critical 90-day period before an election if the distributor knows it falsely represents an individual, intends to harm a candidate's electoral prospects or reputation, and aims to deceive voters into altering their voting behavior.

Definitions

• Materially deceptive media: Defined as any image, audio, or video that falsely depicts an individual engaging in speech or conduct in which they did not in fact engage, where a reasonable viewer or listener would incorrectly believe the depicted individual engaged in the speech or conduct, and which was produced by artificial intelligence.
• Depicted individual: Refers to the person whose likeness or voice is falsely represented in the materially deceptive media.
• Election: Includes any primary election.
• Artificial intelligence: The act specifies that 'artificial intelligence' is defined in section 2 of the Michigan Campaign Finance Act, 1976 PA 388, MCL 169.202. (Analysis of related bills indicates this definition covers machine-based systems that make predictions, recommendations, or decisions, influencing environments, and using machine and human inputs to perceive, abstract perceptions into models, and use model inference to formulate options for information or action.)

Governance and Institutional Framework

Public Act 265 of 2023 (MCL 168.932f) establishes a legal and judicial framework for enforcing prohibitions against the distribution of materially deceptive media in Michigan elections. The statute designates specific entities authorized to initiate civil enforcement actions. These authorized plaintiffs include the attorney general, any depicted individual falsely represented in materially deceptive media, a candidate for office who has been injured or is likely to be injured by the media's distribution, and any organization representing the interests of electors likely to be deceived by the content.

Jurisdiction over civil actions for permanent injunctive relief is assigned to Michigan circuit courts. A plaintiff may file suit either in the circuit court for the county in which a party to the alleged violation resides or in the circuit court for the county where the materially deceptive media could deceive and influence electors in an upcoming election. To prevent procedural abuse, the statute mandates an initial judicial screening: upon the filing of a complaint for injunctive relief, the circuit court must review the filing to determine whether it is frivolous. If the court finds the complaint frivolous, it must suspend the defendant's duty to respond and order the plaintiff to show cause why the suit should not be dismissed.

The statute restricts certain judicial remedies by expressly prohibiting plaintiffs from seeking preliminary injunctive relief in these actions, permitting only permanent injunctive relief following full court review. The administrative and enforcement structure relies on the state judicial system and the attorney general, alongside private rights of action for affected individuals and organizations, rather than creating a specialized regulatory agency or commission.

Key Focus Areas

The core prohibition applies under specific conditions: the person distributing the media knows it falsely represents an individual; the distribution occurs within 90 days before an election; the person intends the distribution to harm a candidate's reputation or electoral prospects and it is reasonably likely to cause that result; and the person intends to change voting behavior by deceiving electors into believing the depicted individual engaged in the speech or conduct, and it is reasonably likely to cause that result.

However, the prohibition does not apply if the materially deceptive media includes a clear and conspicuous disclosure stating that the media has been manipulated or generated by artificial intelligence. For visual media, this disclosure must be easily readable and displayed for the entire duration. For audio media, it must be read clearly in the same language as the rest of the audio.

Implementation Framework

Any candidate or political party committee can file a complaint for injunctive relief in the appropriate circuit court to prevent the distribution of materially deceptive media. Upon filing, the court must review the complaint for frivolousness. If deemed frivolous, the court will suspend the defendant's obligation to respond and order the plaintiff to show cause why the complaint should not be dismissed.

Monitoring and Evaluation

The act does not explicitly detail specific mechanisms for ongoing monitoring and evaluation by a state agency, beyond the judicial process for injunctive relief and the application of criminal penalties.

Penalties, Liability, and Appeals

Section 168.932f establishes both criminal penalties and civil liability mechanisms for the unlawful distribution of materially deceptive media within 90 days prior to an election. Criminal liability is structured based on the offender's prior conviction history under the section. A first violation is classified as a misdemeanor, punishable by imprisonment for not more than 90 days, a fine of not more than $500.00, or both. If a person commits a violation within five years of a prior conviction under this section, the offense escalates to a felony punishable by imprisonment for not more than five years, a fine of not more than $1,000.00, or both.

In addition to criminal penalties, the statute provides for civil injunctive remedies. The attorney general, depicted individuals, injured candidates, or voter representation organizations may seek permanent injunctive relief in circuit court. To obtain a permanent injunction, the plaintiff must prove by clear and convincing evidence that the defendant knew the media falsely represented the depicted individual. Preliminary injunctive relief is explicitly prohibited. The statute also establishes fee-shifting rules: if a plaintiff other than the attorney general is awarded permanent injunctive relief, the court may award costs and attorney fees to the plaintiff.

To deter groundless litigation, the law imposes strict liabilities on plaintiffs who file frivolous complaints. If the court determines a complaint for injunctive relief is frivolous, it must order the plaintiff to show cause why the action should not be dismissed. Upon dismissal of a frivolous complaint, the court may award costs and attorney fees to the defendant and issue appropriate sanctions against the plaintiff and the plaintiff's attorney under Michigan court rules or the court's inherent authority.

Relationship to Other Instruments

This act is an amendment to the Michigan Election Law (1954 PA 116). It is part of a package of bills (including HB 5141, 5143, and 5145) aimed at regulating artificial intelligence and manipulated media in political campaigns. Specifically, HB 5143 (Public Act 263 of 2023) defines 'artificial intelligence' for purposes of the Michigan Campaign Finance Act, which this act references. HB 5145 (Public Act 266 of 2023) makes complementary changes to the Code of Criminal Procedure.

International Alignment

As a state-level law in the United States, this act does not directly address international alignment. However, similar legislative efforts are being undertaken in other jurisdictions globally to address the impact of AI-generated deceptive content on democratic processes.

Implementation Timeline

Sources and References