Artificial intelligence has transformed how digital content is created and consumed. One of the most controversial developments is deepfake technology. “Deepfakes” or digital forgeries are realistically altered videos, images, and audio recordings that appear to show real people saying or doing things they never actually did. Deepfake technology may be used for valid purposes such as commentary, parody, satire, teaching, and research. However, AI-generated content can also be used inappropriately to deceive, humiliate, or violate the privacy of individuals depicted in deceptive audio or video.
New Jersey lawmakers passed deepfake legislation that established criminal penalties and civil penalties for certain harmful uses of such technologies. The New Jersey deepfake law addresses situations where deceptive audio or visual media is used to commit or further other crimes.
If you are facing accusations related to technological deepfakes, an experienced criminal defense lawyer can explain the laws and help protect your rights.
What Are Deepfakes?
Deepfakes are a form of digitally manipulated media. They are primarily created with artificial intelligence and machine learning technology. These tools analyze large datasets of real images, videos, or sound recordings, and then generate new media that convincingly mimic a real person’s appearance, movements, voice, or speech patterns.
New Jersey law uses the term “deceptive audio or visual media.” This includes any technological representation that appears to realistically depict a person engaging in speech or conduct that they did not actually perform, if that depiction was created primarily through technical means rather than human impersonation. AI-generated deepfakes can take many forms, including:
- Videos showing a person saying or doing something they never did in real life
- Images of someone in fake or misleading settings
- Deepfake pornography
- Audio recordings replicating a person’s voice
- Forged documents
Many uses for this technology are completely legal. Deepfakes may appear in satire, parody, movies, education, research, and artistic expression. Issues arise when the technology is used to harm others, whether by deception or exploitation. New Jersey deepfake laws focus on harmful deepfakes, such as forged intimate visual depictions of an underage person engaged in sexual acts.
What Is New Jersey’s Deepfake Law?
New Jersey’s deepfake law criminalizes deepfakes when someone uses AI-generated media to attempt or further the commission of another crime or criminal offense. In the most basic terms, deepfake technology is illegal when it is used to commit other criminal acts. The statute applies when a person knowingly creates or uses deceptive media to facilitate crimes such as:
- Harassment
- Cyber-harassment
- Fraud and theft offenses
- Sexual offenses
- Threats or improper influence in political matters
- False public alarms
- Hazing
- Crimes involving the known exploitation of children
A person commits a third-degree crime if they create a deepfake for the purpose of committing or advancing another crime, or with knowledge that it will be used for that purpose. A person also commits a third-degree crime if they solicit or use a deepfake for that same criminal purpose. It’s a fourth-degree crime when a person knowingly or recklessly discloses a deepfake that was created in violation of the statute, even if they were not the original creator.
New Jersey law also creates a civil cause of action. It provides legal recourse for victims to seek monetary damages and court-ordered relief.
Legal vs. Illegal Uses of Deepfakes
New Jersey’s deepfake law distinguishes between lawful expression and criminal misuse. Not all deepfakes are illegal. In fact, the statute has strong First Amendment protections. These are designed to safeguard issues such as creativity and journalism.
Legal Uses of Deepfakes
The law does not apply to content that a reasonable person would understand to be:
- Satire
- Parody
- Criticism or commentary
- News reporting
- Teaching
- Scholarship
- Research
Furthermore, the law specifically exempts:
- Internet service providers
- Social media platforms
- Cloud service providers
- Streaming services
- Media outlets
- Broadcasters
- Advertising platforms
However, this only applies when their role is limited to hosting or publishing content. They cannot have had direct involvement in creating illegal deepfakes.
Illegal Uses of Deepfakes
Deepfakes cross into illegal territory when they are used to facilitate criminal conduct. Examples include:
- Creating a fake video of revenge porn to harass or threaten someone
- Using a deepfake voice recording to scam victims out of money
- Manipulating authentic, intimate visual depictions or fabricating explicit forged images to extort or coerce someone
- Creating audio or video depictions of sexual abuse or sexual exploitation of children
- Producing false political advertising or deceptive media to illegally influence political activity
- Using manipulated images to commit identity theft or fraud
The key factor is whether the alleged perpetrator had a criminal purpose. The law focuses on how the deepfake is used, not merely on its existence.
Penalties for Violating Deepfake Laws
Violations of New Jersey’s deepfake law carry serious criminal and financial consequences. For example, third-degree crimes carry penalties of three to five years in prison and fines of up to $15,000. Fourth-degree crimes can be punished with up to 18 months in prison and fines of up to $10,000. The court may also give you enhanced fines, up to $30,000, for violations involving deceptive audio or visual media.
The statute also allows for consecutive sentencing. A deepfake-related conviction doesn’t “merge” with the underlying offense. If you are sentenced to two counts of a third-degree penalty, you could serve six to 10 years in prison. Courts may give you separate and consecutive sentences for both crimes.
Victims may also bring civil lawsuits, regardless of whether criminal charges are filed. Courts may award:
- Actual damages (a minimum of $1,000 per knowing or reckless violation)
- Punitive damages
- Attorney’s fees and litigation costs
- Injunctive and equitable relief
This combination of criminal penalties and civil liability can result in financial and legal consequences for anyone convicted of criminal offenses involving deepfakes. Working with an experienced criminal defense lawyer is the best way to protect yourself and fight the charges.
How Do Prosecutors Prove Deepfake Charges?
To secure a conviction, prosecutors must prove that the defendant meant to commit an unlawful act or further another crime. Alternatively, prosecutors can prove that the defendant knew the deepfake media would be used by someone else for an illicit purpose.
There are various ways the prosecution can prove that something was a deepfake and that you had the required intent. For example, they may use:
- Digital forensic analysis of files, metadata, and device histories
- IP address tracking and account activity
- Social media posts and other digital communications
- Expert testimony explaining AI generation techniques
- Statements made by the accused or other relevant parties
Because deepfake cases involve sophisticated computer technology online platforms, prosecutors often need expert witnesses to explain how manipulated media was created—and to establish that it is not authentic. Intent is typically the most contested issue. Prosecutors look for communications, financial demands, or patterns of behavior that show an alleged criminal purpose for the generation and distribution of such images.
Defenses Against Deepfake Charges
The exact defense in your deepfake case will depend on the specific facts and the evidence available. There are multiple defenses available, particularly when prosecutors overreach or misinterpret digital evidence. Some of the most common defenses include:
- Lack of criminal intent: Demonstrating that the deepfake media was created for satire, education, parody, or creative expression rather than criminal use.
- Statutory exemptions: Demonstrating that the deepfake and conduct fall under protected categories, such as research or news reporting.
- Consent: Showing the depicted individual consented to the creation or distribution.
- Misidentification: Challenging claims about who actually created or shared the content.
- Insufficient evidence: Attacking weak forensic methods or unreliable expert testimony.
Because these cases are substantially dependent on technical evidence, experienced defense attorneys often consult forensic experts to help dismantle the prosecution’s claims.
How a Criminal Defense Lawyer Can Help
Deepfake charges involve cutting-edge technology and complex criminal statutes. You will need a seasoned criminal defense attorney to protect your legal rights and build a strong defense. Fortunately, a knowledgeable defense lawyer can:
- Evaluate whether your alleged conduct falls within the N.J. criminal code
- Challenge digital forensic evidence
- Protect your rights during the investigation and questioning
- Negotiate for dismissal, downgraded charges, or diversionary programs
- Build a compelling defense strategy for trial
Early intervention is important. Having legal representation can help you avoid making damaging statements and preserve crucial evidence.
Our New Jersey Criminal Defense Lawyers Are Ready to Help You
If you are under investigation or have been charged under New Jersey’s deepfake law, the defense attorneys at The Law Offices of Jonathan F. Marshall are ready to help. The law firm offers free consultations for New Jersey residents accused of serious crimes. Our legal team has over 250 years of combined experience defending criminal charges throughout New Jersey.
When you turn to The Law Offices of Jonathan F. Marshall for help, you get a team of 20 attorneys dedicated exclusively to criminal defense. Our certified criminal trial attorneys and former municipal court prosecutors bring their long-standing local courtroom experience to every case. One former client said, “Jonathan did an incredible job for me. It’s not only his knowledge and skills that are so impressive, but his ability to make you feel so comfortable. Jonathan is a regular person who you can talk to like any other person. It’s nice to have such a talented lawyer working for you who you can feel so comfortable with. He is definitely special, and you would be wise to hire him.”
Contact The Law Offices of Jonathan F. Marshall today for a free consultation. Take the first step toward protecting your rights and your future.
