In the rapidly evolving digital age, deepfake technology has presented unprecedented challenges, blurring the lines between reality and fabrication in often harmful ways. As these technologies become more accessible and their applications more invasive, the need for stringent legal frameworks becomes crucial. Enter the Deepfake Sexual Material Bill, a legislative effort aimed at combating the misuse of deepfakes in creating and distributing non-consensual sexual content.
This blog post will delve into the specifics of the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 introduced in NSW, examining its implications, the protections it seeks to offer victims, and the broader impact on digital content creation.
Understanding the Deepfake Sexual Material Bill 2024
A deepfake is the product of advanced Artificial Intelligence (AI) algorithms that analyse and synthesise vast amounts of data to generate a photo, video or sound file of a person and create an extremely realistic but false depiction of them doing or saying something that they did not actually do or say.
Consequently, such material has garnered widespread attention for its potentially harmful uses, which present unique challenges to national security and law enforcement. It has also called for a refinement of Australia’s criminal laws.
What Is the Deepfake Sexual Material Bill?
The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 seeks to deal with the harmful consequences of AI-generated sexual material.
The Deepfake Sexual Material Bill amends the Criminal Code Act 1995 to strengthen criminal offences targeting the creation and non-consensual sharing of sexually explicit material online, including altered sexually explicit material.
Objectives of the Bill
As per the explanatory memorandum, the objectives of The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 are directed towards protecting an individual’s privacy and reputation by now also prohibiting the non-consensual sharing of altered sexual material online.
The reforms also form part of the government’s response to gender violence, as these sexually explicit deepfakes have overwhelmingly targeted females.
Legal Implications of the Deepfake Sexual Material Bill
The offences in the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 are to impose serious penalties for those who share sexually explicit material without consent, whether the material depicts a real person or is digitally created.
Penalties and Consequences
These new offences will be subject to serious criminal penalties, with a maximum penalty of 6 years imprisonment for sharing non-consensual sexually explicit media of a person depicted or if it appears to depict a person. Where a person created a deepfake that is shared without consent or has 3 or more civil penalties under the Online Safety Act 2021, there is an aggravated offence, which carries a higher penalty of a maximum of 7 years imprisonment.
Protection for Victims
Within the explanatory memorandum, Attorney-General Mark Dreyfus said digitally created and altered sexually intimate images was a “deeply distressing” form of abuse, particularly against women and girls. This insidious behaviour of sharing sexually explicit media is also used to degrade and dehumanise others, particularly women, and, therefore, can perpetuate harmful gender stereotypes and drive gender-based violence.
Consequently, the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 will hold perpetrators to account for causing harm through the sharing of deepfake pornography without consent and ensure Australia’s laws keep pace with new technology.
Impact on Technology and Media
The use of AI technology, especially Deepfake material, can manipulate public opinion and erode trust in media and public sources. Consequently, regulations are put in place for platforms that contain this material and users of these technologies.
Responsibilities for Tech Companies
Technology companies have a responsibility to prevent the misuse of deepfakes and implement measures to detect and remove manipulated content.
Whilst the Online Safety Act 2021 (Cth) does not specifically refer to material generated by an AI system, the legislation is worded broadly enough to capture AI-generated sexual material depicting a human. Consequently, the Act imposes civil penalties on service providers who fail to comply with takedown orders, with the penalty being up to 500 units.
Implications for Content Creators
Content creators will be required to disclose their AI-generated content to comply with the social media platform’s objectives of ensuring transparency and making it easier for users to verify the authenticity of the media they encounter.
Comparisons with Existing Laws
Whilst current law does prohibit the production and sharing of intimate images without a person’s consent within the Crimes Act 1900 (NSW), the Commonwealth Criminal Code, the Online Safety Act and the powers of the eSafety Commissioner, they have failed to account for the advancement of other forms of production and creation of sexual material that occur in the online world, such as deepfake porn, by lacking the specificity to include technological generated material in its provisions.
Gaps Addressed by the New Bill
The proposed new laws provided by the Bill fill an existing gap in the Commonwealth Criminal Code’s existing offences regarding image-based abuse by creating new laws and, subsequently, new criminal offences for material created or altered using generative AI, including deepfake images.
Accordingly, the new provisions created by the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 repeals section 474.17A of the Criminal Code Act that makes it an offence to transmit private sexual material through a carriage service with intent to menace, harass or cause offence and replaces it with the offence of:
Where a person uses a carriage service to transmit sexual material which depicts (or appears to depict) another person when:
1. The person knows the other person does not consent to the transmission; or
2. The person is reckless as to whether the other person consents to the transmission.
Explicit sexual material means the material depicts, or appears to depict a person in a sexual pose, engaged in sexual activity or the sexual organs, anal or breast regions of a human.
This means the new offences apply regardless of whether the material is unaltered or has been created or altered in any way using technology. There are exceptions for where the new offence will apply, including a broad exception where ‘a reasonable person would consider transmitting the material to be acceptable’ regarding a number of factors.
The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 provisions will also introduce two aggravated offences in section 474.17AA of the Commonwealth Criminal Code where:
1. An offender has already been subject to 3 or more civil penalty orders relevant to the Online Safety Act 2021; or
2. The offender was ‘responsible for the creation or alteration of the material’.
These provisions will apply to sexual material depicting adults, with child abuse material continuing to be dealt with comprehensively in a separate division of the Criminal Code Act.
Key Takeaways
- The Deepfake Sexual Material Bill aims to address the creation and distribution of non-consensual deepfake sexual content.
- Deepfake technology can manipulate videos to create realistic but fake portrayals of individuals.
- The bill introduces criminal penalties for those who create, share, or threaten to share deepfake sexual material without consent.
- Victims of deepfake sexual content can face severe emotional and reputational harm.
- The bill emphasizes the need for updated legal frameworks to keep pace with technological advancements and protect individuals' privacy and dignity.
Have You Been Charged with a Criminal Offence in NSW?
If you are being charged with a criminal offence in NSW, it is vital that you seek legal advice and legal representation. An experienced criminal defence lawyer will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Criminal Defence Lawyers now.
Written By
Drew Hamilton
Drew Hamilton is founding partner at Hamilton Janke Lawyers. Admitted to the Supreme Court of New South Wales as a Solicitor and also listed on the High Court of Australia register.
