OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 410 Bill Analysis
135th General Assembly
Click here for H.B. 410’s Fiscal Note
Version: As Introduced
Primary Sponsor: Rep. J. Miller
Effective date:
Emily E. Wendel, Attorney
SUMMARY
▪ Defines “deepfake media” as an image or an audio or video recording that (1) is created
with the intent to deceive, and (2) appears to depict a real person speaking or acting in a
manner that the person did not actually speak or act.
▪ Requires a person who knowingly creates and disseminates deepfake media for the
purpose of influencing an election to disclose that fact in the deepfake media.
▪ Prescribes specific disclosure requirements for images, audio recordings, and videos.
▪ Prohibits any person from knowingly creating and disseminating deepfake media for the
purpose of influencing the results of an election during the period beginning 90 days
before the day of the election and ending on the day of the election.
▪ Allows a person who is harmed by a violation of the bill to sue the violator for
compensatory and punitive damages, in addition to pursuing any other cause of action
available under the law, such as a defamation lawsuit.
DETAILED ANALYSIS
Deepfake election materials
Definition of deepfake media
The bill defines “deepfake media” as an image or an audio or video recording that (1) is
created with the intent to deceive, and (2) appears to depict a real person speaking or acting in
a manner that the person did not actually speak or act.1
1 R.C. 3517.24(A).
November 4, 2024
Office of Research and Drafting LSC Legislative Budget Office
The term “deepfake” usually refers to media created using artificial intelligence tools that
are widely available on the Internet. These tools can make it easier for a person to create a false
image, video, or sound clip, compared to other methods. Perhaps most famously, some deepfake
generators allow a user to edit a video of a person by swapping the person’s face with another
person’s face. Other generators enable a user to create media simply by entering a text
instruction.
However, the bill also applies more widely to any type of media that is manipulated or
artificially created, such as a manually retouched photo or an audio clip of an impersonator.
Disclosure requirement
The bill requires a person who knowingly creates and disseminates deepfake media, or
knowingly creates and causes deepfake media to be disseminated, for the purpose of influencing
an election to disclose that fact in the deepfake media as follows:2
▪ An image must be accompanied by a written statement that the image has been
manipulated. The statement must be in a font size that is easily readable by a typical
viewer and that is not smaller than the largest text accompanying the image.
▪ An audio recording must include a spoken statement at the beginning and end of the
recording that the audio recording has been manipulated. The statement must be spoken
in a manner that is easily intelligible to a typical listener. If the audio recording is more
than four minutes long, the statement also must be included at least every two minutes
during the recording.
▪ A video must include, for the entire duration of the video, a written statement that the
video recording has been manipulated. The statement must be in a font size that is easily
readable by a typical viewer and that is not smaller than the largest text accompanying
the video.
Pre-election blackout period
The bill prohibits any person from knowingly creating and disseminating deepfake media,
or from knowingly creating and causing deepfake media to be disseminated, for the purpose of
influencing the results of an election during the period beginning 90 days before the day of the
election and ending on the day of the election.3 The blackout period applies to deepfake media
regardless of whether it contains a disclosure as described above. (See “First Amendment
issues,” below.)
Enforcement
Under the bill, a person who is harmed by a violation of the bill may sue the violator for
compensatory and punitive damages. (Courts impose compensatory damages to make a victim
whole for financial losses the victim incurred, while they impose punitive damages in order to
2 R.C. 3517.24(B).
3 R.C. 3517.24(C).
P a g e |2 H.B. 410
As Introduced
Office of Research and Drafting LSC Legislative Budget Office
punish the violator.) This cause of action is in addition to any other cause of action available under
statutory or common law (see “Existing remedies for false campaign speech,” below).
The bill does not impose any criminal or administrative penalty for violating the bill’s
provisions. Ordinarily, a violation of the Election Law is a first degree misdemeanor unless the
law specifies a different penalty. And, other provisions of the Campaign Finance Law are
enforceable through an action brought before the Ohio Elections Commission.4
Existing remedies for false campaign speech
Defamation Law
Under continuing law, a candidate whose political campaign is harmed by a falsehood,
including deepfake media as contemplated under the bill, might bring a defamation action
against the person who disseminated the falsehood. Defamation is a cause of action found in the
common law (that is, law originating in historical court decisions), and encompasses both libel,
which involves the written word, and slander, which involves oral speech.5
Generally, in order for a public figure such as a candidate to prove a defamation claim, all
of the following must be true:6
▪ The speaker made a false statement of fact about the candidate to a third party.
▪ The speaker was not covered by an applicable privilege, such as the privilege that covers
a legislator who is carrying out legitimate legislative activities.
▪ The speaker’s actions harmed the candidate, such as by damaging the candidate’s
reputation.
▪ The speaker acted with actual malice, meaning that the speaker knew that the statement
was false or acted with reckless disregard for whether it was false. (In defamation cases
not involving a public figure or a matter of public concern, the person harmed generally
must prove only that the speaker acted negligently.)
In many cases, a candidate harmed by deepfake media, as defined under the bill, currently
could bring a defamation action against its creator and could be awarded damages in the same
manner as under the bill. The elevated “actual malice” standard probably would be met in cases
covered by the bill because the bill applies only to a person who creates deepfake media with
the intent to deceive.
But, the bill goes further by (1) prohibiting the dissemination of deepfake media during
the 90 days before an election, (2) requiring deepfake media that is disseminated at other times
4 R.C. 3599.40. See also R.C. 3517.153, not in the bill.
5See R.C. Chapter 2739, not in the bill; Restatement (Second) of Torts, Division 5 – Defamation (1977);
and Ohio Constitution, Article II, Section 12.
6 New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964);
Curtis Publishing Co. v. Butts, 388 U.S. 130, 155
(1967); Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 755 (1985); Varanese v. Gall, 35 Ohio St.3d
78 (1988); and Robb v. Lincoln Publishing, 114 Ohio App.3d 595 (12th Dist. Ct. App. 1996).
P a g e |3 H.B. 410
As Introduced
Office of Research and Drafting LSC Legislative Budget Office
to include a disclosure, and (3) potentially restricting parody that would not be considered a false
statement of fact under the Defamation Law. As is explained below under “First Amendment
issues,” a court might examine these additional restrictions if the bill were challenged.
False Campaign Statements Law
Currently, the Revised Code prohibits any person from knowingly or recklessly
disseminating a false statement about a candidate that is designed to promote the candidate’s
election, nomination, or defeat, or a false statement that is designed to promote the adoption or
defeat of a ballot issue. Violators are subject to an administrative fine or a criminal penalty. But,
the False Campaign Statements Law is not being enforced because in 2016, a federal appeals
court ruled that the law violates the First Amendment.7
Right of Publicity Law
Ohio’s existing Right of Publicity Law prohibits the unauthorized use of an individual’s
persona if it has commercial value and is used for a commercial purpose. A person may bring a
civil action to recover damages or to obtain an injunction if the person’s right of publicity is
infringed. But, the Right of Publicity Law does not apply to the use of an individual’s persona (1)
in connection with any political campaign and in compliance with the Election Law, or (2) in
connection with any news, public affairs, sports broadcast, or account.8 The use of an individual’s
persona for the purpose of influencing an election, as contemplated by the bill, probably would
fall under those exceptions.
First Amendment issues
To the extent that the bill is more restrictive than the existing Defamation Law, the bill
might be vulnerable to a challenge under the First Amendment. As mentioned above, the bill’s
provisions go beyond the current Defamation Law in three areas: (1) requiring disclosure
statements, (2) applying to parody, and (3) instituting a 90-day blackout period before an
election.
The U.S. Supreme Court has ruled that the First Amendment applies to false statements
as well as true statements. Prohibitions against false campaign speech are content-based
restrictions on core political speech, and therefore are subject to strict scrutiny under the First
Amendment. To be upheld, a law targeting false campaign speech must use the least restrictive
means available to serve the state’s compelling interest in preventing fraud or defamation in the
context of elections.9 A reviewing court might consider whether the bill is the least restrictive
means available to address false campaign speech, or whether the existing Defamation Law is
7 R.C. 3517.156, 3517.21, 3517.22, and 3517.922(V), not in the bill, and Susan B. Anthony List v. Driehaus,
814 F.3d 466 (6th Cir. 2016).
8 R.C. 2741.02, not in the bill.
9 United States v. Alvarez, 567 U.S. 709, 717 (2012) and Susan B. Anthony List at 473.
P a g e |4 H.B. 410
As Introduced
Office of Research and Drafting LSC Legislative Budget Office
sufficient to do so. A federal court reviewing a California law on the same topic recently issued a
preliminary injunction against the enforcement of the law based on this test.10
Past court decisions suggest that a reviewing court might pay special attention to the
aspects of the bill that restrict parody and that prohibit speech before it is spoken, rather than
punishing it later. These types of restrictions on speech have previously been ruled
unconstitutional in other contexts.11
HISTORY
Action Date
Introduced 02-12-24
ANHB0410IN-135/ar
10 Kohls v. Bonta, 2024 U.S. Dist. LEXIS 179933, Case No. 2:24-CV-02527 (E.D. Cal. October 2, 2024).
11 Regarding parody, see Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990); Novak v. City of Parma, 932
F.3d 421, 427 (6th Cir. 2019); Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279 (1995); and Corso
Ventures LLC v. Paye, 2023-Ohio-127 (10th Dist. Ct. App. 2023). Regarding prior restraints on speech, see
Freedman v. Maryland, 380 U.S. 51, 58 (1965); Nebraska Press Association v. Stuart, 427 U.S. 539, 559
(1976); Bey v. Rasawehr, 161 Ohio St.3d 79, 90 (2020); and Pestrak v. Ohio Elections Commission, 926 F.2d
573, 578 (6th Cir. 1991).
P a g e |5 H.B. 410
As Introduced


Statutes affected:
As Introduced: 3599.40