Artificial Intelligence and Criminal Law and Responsibility in Australia

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Artificial intelligence (AI) has and continues to create an abundant of new opportunities as well as concerning challenges to businesses, individuals and the law. This articles delves into two main issues that AI creates that significantly impacts on humans, businesses and the law, namely, the creation and distribution of deepfake porn, and the issue of attaching criminal responsibility for the actions of artificial intelligence.

Table Of Contents

Criminal Responsibility and AI
AI Deepfake Porn
Getting Non-consensual Sexual Images Removed

Criminal Responsibility and AI

Criminal responsibility attaches to those who commit a voluntary and intentional act, realising the possibility of it causing harm to another person yet doing it anyway, without consent and without a lawful excuse that ends up causing harm to a victim.

One example is the criminal offence of common assault. Common assault in New South Wales carries a penalty of up to two years imprisonment and/or $5,500 fine. It can result in a conviction (criminal record). A person will be guilty of common assault if the prosecution can prove each of the above outlined elements beyond reasonable doubt. If there is evidence of a lawful excuse such as self-defence, then the prosecution bears the onus to negate the reasonable possibility of that beyond reasonable doubt-otherwise the accused person will be acquitted on the grounds of the lawful excuse of self-defence.

Another example is the offence of negligent driving occasioning harm or even death. Depending on the harm caused, this carries heavy criminal penalties including imprisonment. For a person to be guilty of negligent driving, the prosecution must prove beyond reasonable doubt each of the following essential elements of the offence:

The accused person voluntarily and intentionally drove the motor vehicle,
He or she did so in such a way that it departed from the standard of care of the ordinary prudent driver in those circumstances,
The harm was caused by the person’s negligence.

If an AI robot or an AI motor vehicle malfunctions and thereby commits an act or omits to act in circumstances it should have acted thereby causing harm or death to a human being, the legal issue arising is who to attach the criminal responsibility to. Will it attach to the manufacturer or the human being who owns it?

These are pressing issues that require pre-emptive thinking and planning by the Government and law makers.

AI Deepfake Porn

Deepfake is an artificial intelligent technology using machine learning to manipulate media digitally in order to duplicate a realistic but fake media such as audio, video and/or photo. It can replace a face of body onto another face or body. The effect of it is the misrepresenting of what the audience ends up viewing and hearing.

While this creates positive opportunities, it also creates significant obvious concerns, in particular, for deepfake porn victims.

Digitally created and altered sexually explicit audio, video and/or photos being shared without consent is a very concerning, sinister type of abuse. The Government is introducing new laws prohibiting the sharing of non-consensual deepfake images or materials, attracting maximum penalties of up to 6 years imprisonment in Australia.

The new laws will also apply heavier penalties for an offender who before sharing the image(s), created it with a maximum penalty of 7 years imprisonment.

There already are laws protecting victims of child abuse material and even adult image-based abuse via electronic means under the federal laws of Australia. However the above new laws on non-consensual deepfake sexually explicit materials focuses mainly on adult victims involving deepfake AI technology.

The following are laws and penalties that already exist concerning similar behaviour:

Section 474.17 Criminal Code Act 1995 (Cth): prohibits using a carriage service in a way that reasonable people would regard as harassing, offensive or menacing in all the circumstances. This carries a maximum penalty of 3 years imprisonment.
Section 474.17A Criminal Code Act 1995 (Cth): prohibits transmission, publication distribution, advertisement, or promotion of private sexual material in the context of committing the above s474.17 offence. This carries a maximum penalty of 5 years imprisonment.
Section 91P Crimes Act 1900 (NSW): criminalises the intentional recording of an intimate image of another person without consent and knowing that the person did not consent to the recording or being reckless as to whether the person consented to the recording. This carries a penalty of up to 3 years imprisonment and/or up to $11,000 fine.
Section 91Q Crimes Act 1900 (NSW): criminalises the intentional distribution of an intimate image of another person, without consent, and knowing the person did not consent to the distribution or being reckless as to whether the person consented to it. This carries a penalty of up to 3 years imprisonment and/or up to $11,000 fine.

Getting Non-consensual Sexual Images Removed

A person found guilty of the above section 91P or 91Q offence(s) can be ordered by the court to take reasonable steps to remove, retract, recover, delete or destroy any intimate image recorded or distributed by the person within a period specified by the court. A failure to comply with such a court order without reasonable excuse will have a penalty of up to 2 years imprisonment and/or $5,500 fine.

A further avenue is available via section 75 of the Online Safety Act 2021 (Cth) where victims of non-consensual sexual deepfake images can pursue legal action against anyone who distributes a deepfake pornographic image of a victim for purposes of getting it removed. Either the victim or eSafety Commissioner can pursue this. Civil penalties can apply for failure to comply with a take-down order.

Other platforms exist for reporting purposes, including the Australian Centre to Counter Child Exploitation, or Image-based abuse project.

AI creates many challenges now and into the future for humans and the law. Failure to keep up will create serious issues of injustice and directly affect the community’s trust in the criminal justice system.

For more on this topic, get in touch with our criminal lawyers Sydney team today.

Published on 09/11/2024