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Definition of Deepfake?
Deepfake is artificial intelligent technology that uses machine learning called deep learning to digitally manipulate media photos, images or videos to duplicate a person into another person’s acts or conduct in an image or video, creating a realistic but fake media. This can include face or body swapping onto another person’s face or body thereby misrepresenting the truth.
Government to Introduce New Deepfake Porn Laws and Penalties
The federal government plans to introduce legislation targeting digitally altered ‘deepfake’ pornographic images, with offenders to face jail sentences for sharing and creating them.
A ‘deepfake’ can be a still image, video, or sound file. It refers to media in which a real person’s face or body has been altered or edited to create a false depiction so that they appear they are doing or saying something. They are often extremely realistic.
Deepfakes are created using artificial intelligence technology which utilises images or recordings of a person to model and create the desired content.
There has been an increase in the prevalence of deepfake images, prompting concerns from cybercrime experts that children and teenagers are increasingly being targeted by predators.
They have been used to create false pornographic videos, used as a tool for extortion (sextortion), sexual exploitation, intimidation, and harassment.
Notably, the eSafety Commissioner estimates that 90 per cent of deepfakes are explicit.
Deepfake Penalties for Non-consensual Sexual Images in Australia
Federal Attorney-General Mark Dreyfus noted that: “digitally created and altered sexually explicit material that is shared without consent is a damaging and deeply distressing form of abuse.”
The bill, which will be introduced shortly, will seek to ban the non-consensual sharing of sexualised deepfake images.
“The Government’s reforms will make clear that those who share sexually explicit material without consent, using technology like artificial intelligence, will be subject to serious criminal penalties.” said Dreyfus.
Once passed, the laws will criminalise sharing, and creating, any non-consensual deepfake pornographic image with another person.
This will include whether the sharing was via email or message as well as if posted on a platform.
The sharing of non-consensual deepfake sexually explicit material will carry a maximum penalty of six years imprisonment. Furthermore, if a person also created the deepfake shared without consent, there will be an aggravated offence that carries a higher penalty of seven years imprisonment.
These offences will only apply to sexual material depicting adults as child abuse material is dealt with under separate dedicated offences.
Presently, image-based abuse via electronic means, is nonetheless criminalised under Commonwealth legislation.
Section 474.17 of the Criminal Code Act 1995 (Cth) criminalises using a carriage service in a way that reasonable persons would regard as being menacing, harassing or offensive, in all the circumstances.
A carriage service refers to text, phone call, social media, and emails.
The offence is considered ‘aggravated’ where it involved the transmission, publication, distribution, advertisement, or promotion of private sexual material, as per section 474.17A. A maximum penalty of 5 years imprisonment is applicable.
Private sexual material is presently defined as material that depicts a person who is, or appears to be, 18 years of age or older and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons).
It also presently covers material which the dominant characteristic of which is the depiction of a sexual organ or the anal region of a person or the breasts of a female person who is, or appears to be, 18 years of age or older.
This is required to be in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.
New South Wales legislation also criminalises the recording and distribution of intimate images under Division 15C of the Crimes Act 1900 (NSW).
The Act defines an ‘intimate image’ as an image of a person’s private parts, or of a person engaged in a private act, in circumstances where a reasonable person would reasonably expect to privacy.
However, it also specifically covers images altered to appear to show this.
It is an offence to threaten to record or distribute an intimate image of another person without their consent whilst intending to cause that other person to fear that the threat will be carried out, as well as to intentionally distribute an intimate image of another person without their consent. The maximum penalty applicable is imprisonment for 3 years and/or a fine of $11,000 for both offences.
A person may threaten to distribute an image whether or not the image actually exists, with the prosecution also not required to prove that the person alleged to have been threatened actually feared that the threat would be carried out.
The threat involved may be explicit or implicit, as well as unconditional or conditional, including via requesting money.
The offender must know the person did not consent or be reckless as to whether the person consented to the distribution. A person consents to the distribution of an intimate image if the person freely and voluntarily agrees to the distribution of the intimate image.
It is emphasised that even if a person distributes an image of themselves, it is not by reason only of this fact, to be regarded as them having consented to any other distribution of the image.
Exceptions include where the conduct alleged to constitute the offence:
- was done for a genuine medical or scientific purpose,
- was done by a law enforcement officer for a genuine law enforcement purpose,
- was required by a court or otherwise reasonably necessary to be done for the purpose of legal proceedings.
Further exceptions include where a reasonable person would consider the conduct of the accused person acceptable, having regard to each of the following:
- the nature and content of the image,
- the circumstances in which the image was recorded or distributed,
- the age, intellectual capacity, vulnerability, or other relevant circumstances of the person depicted in the image,
- the degree to which the accused person’s actions affect the privacy of the person depicted in the image, and
- the relationship between the accused person and the person depicted in the image.
Where a person is found guilty of such an offence, the court may order that the offender take reasonable actions to remove, retract, recover, delete, or destroy any intimate image recorded or distributed by the person, within a specified period.
If they fail to do so, without reasonable excuse, a maximum penalty of 2 years imprisonment and/or a $550 fine is applicable, pursuant to section 91S(2).
What can I do if I am a Victim of Deepfake?
The Online Safety Act 2021 (Cth) provides an avenue for victims of non-consensual sexual deepfake images under section 75 to pursue legal action against anyone who distributes a deepfake pornographic media of the victim, in order to get it taken down. This Avenue may be pursued either by the victim individually or by the eSafety Commissioner in Australia. This may be in the form of a formal warning, take-down order and civil penalties for any failure to take the contents down.
Other options are to report it immediately to the police. This includes the police assistance line on 131 444.
You may also report the unauthorised deepfake image to other platforms, including the Australian Centre to Counter Child Exploitation, or the Image-based abuse project.
By Poppy Morandin and Jimmy Singh.
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