We successfully lobbied the New York Legislature to pass significant changes to the Political “AI” law that was enacted last April as part of the budget process. The Governor’s budget included a draconian political AI law that placed stations in the middle of litigation battles between political candidates where a candidate’s image or voice was included in an opposing candidate’s political communications.
The old law created a legal process where an aggrieved candidate could easily sue a station. A station would be responsible if it knew or should have known deceptive AI was used in political communications. A station could be required to label political content and be held responsible for court costs and attorney’s fees. Not only did this create liability, but it also conflicted with federal law.
Our goal was to reduce litigation risks and avoid conflicts with federal regulations. Here are the highlights:
Conflicts with Federal Law Resolved: The new legislation makes it clear that the NY law cannot conflict with Federal law. For example, federal law prevents stations from editing or placing labels on political ads purchased by a candidate's authorized campaign committee. The new legislation makes it clear that federal law controls.
Actual knowledge v. “Should have known”: The existing law can hold stations responsible if they “should have known” there was deceptive AI in a political communication. Under the new legislation, stations are only responsible if they have actual knowledge that a candidate’s image or voice in a political communication has been manipulated. This major change will help protect broadcasters.
News Exemption: The existing law requires stations to place the specific label, “This (image or voice) has been manipulated,” if the newscast includes materially deceptive content containing a candidate’s image or voice. The new legislation allows a station to use its own words to acknowledge that there are questions about the authenticity of the materially deceptive media. The new law states:
“The news exemption refers to materially deceptive media distributed by a bona fide news reporting entity for the purpose of news reporting or coverage, if the reporting clearly acknowledges through content or a disclosure, in a manner that can be easily read or heard by the average listener or viewer, that there are questions about the authenticity of the materially deceptive media;
We believe news reporting and coverage provisions should be read broadly. This news exemption is superior to the existing law.
Political Advertising: This is a huge change. The existing law requires stations to put labels on political ads that contain materially deceptive content that has been manipulated with AI or other electronic means. This can lead to a conflict with federal law. It also can harm the political advertising market. Political advertisers do not want to place labels on their political communications. The legislation requires a station to implement a policy regarding political AI. Stations must adopt a policy requiring political advertisers to include a disclosure label if the ad contains a manipulated deceptive image, video, or audio of a candidate. A copy of the policy would be given to an entity purchasing a political ad. There is no obligation to investigate. Stations would not be required to take any action if the advertisement contains a materially deceptive modified image. The obligation is limited to adopting a policy and communicating that to the entity purchasing the ad.
This old law remains in effect until the Governor signs the legislation. Although once signed, the new legislation applies retroactively, so any pending litigation will be dismissed.
Remember, this law is enforced by a private right of action. In other words, it is triggered when a candidate files a suit against a station. This means that judges across the state will be interpreting the language of the new law. The problem is that different judges may interpret provisions of the law differently. We are paying close attention as to how the legislation is implemented. Please let us know if you become involved in litigation.
The new legislation that passed is vastly superior to the current law. We want to thank all the stations that were involved in the extensive lobbying effort.
You can see an excellent memo outlining the new law by our Washington DC communications attorney Jack Goodman here.
You can see the text of the new legislation here.