Introduction

Increasingly seen around New South Wales, deepfake technology makes it possible to create digital media that’s super lifelike yet entirely fake. This tech, when used for sharing intimate images without permission or making deepfake porn, stirs up big legal and ethical worries.

Addressing these challenges necessitates a comprehensive understanding of the current legal framework and recent legislative efforts, such as the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (NSW). This guide explores when the use of deepfakes constitutes a criminal offence in NSW, examining existing laws like the Online Safety Act 2021 (Cth) and proposed amendments aimed at enhancing protections against the malicious use of deepfake technology.

What is Deepfake Technology?

Definition of Deepfakes

Deepfakes are digital photo, video, or sound files that have been manipulated using artificial intelligence (AI) to create highly realistic but false depictions of individuals performing actions or saying things they did not actually do or say. This technology leverages generative adversarial networks (GANs), where two neural networks compete to produce increasingly accurate fakes, making it challenging to distinguish them from genuine content.

Deepfake Sexual Material

Deepfake sexual material, often referred to as deepfake pornography, involves the creation of sexually explicit images or videos featuring individuals without their consent. These materials are created by seamlessly blending a person’s facial features onto existing explicit content using AI tools, resulting in highly convincing yet entirely fabricated depictions.

Key aspects of deepfake sexual material include:

• Non-consensual Creation and Sharing: The images or videos are produced and distributed without the individual’s permission, leading to significant emotional and reputational harm.
• Technological Sophistication: Advanced AI techniques make it difficult to detect alterations, increasing the risk of misuse and the challenges associated with legal prosecution.
• Disproportionate Targeting: Women, girls, and gender diverse individuals are overwhelmingly targeted, constituting 99% of those depicted in deepfake pornography.
• Legal and Social Implications: The non-consensual nature of deepfake sexual material raises significant legal concerns, prompting the development of new criminal offences to address its creation and distribution.

Deepfake sexual material serves various malicious purposes, including humiliation, extortion, and the perpetuation of harmful stereotypes, contributing to gender-based violence and other forms of abuse.

Crimes Associated with Deepfake Use

Fraud

Deepfakes can significantly enhance fraudulent activities by creating convincing fake identities and scenarios. Fraudsters may use deepfake technology to impersonate trusted individuals, such as company executives or public officials, to manipulate financial transactions or obtain sensitive information.

Key ways deepfakes facilitate fraud include:

• Identity Theft: Creating realistic synthetic identities to gain unauthorised access to accounts or secure loans.
• Phishing Schemes: Producing credible video or audio messages from legitimate sources to trick individuals into revealing personal information.
• Investment Scams: Generating false endorsements or statements from reputable figures to influence investment decisions.

These sophisticated methods make it increasingly difficult for victims to discern genuine communications from fraudulent ones, thereby amplifying the risk and impact of financial deceit.

Harassment

Deepfake technology is a potent tool for online harassment, enabling the creation of defamatory and offensive content aimed at individuals. Harassers can fabricate images or videos that falsely depict someone in compromising or offensive situations, leading to emotional distress and reputational damage.

Forms of harassment facilitated by deepfakes include:

• Revenge Porn: Distributing sexually explicit deepfakes without the person’s consent to shame or control them.
• Extortion: Threatening to release damaging deepfake content unless demands are met.
• Defamation: Creating false narratives through manipulated media to damage someone’s reputation in personal or professional spheres.

Legal repercussions for such actions are becoming more stringent with the introduction of laws targeting non-consensual sharing of deepfake sexual material, imposing significant penalties to deter perpetrators.

Defamation

Deepfakes pose a substantial threat to individuals’ reputations by allowing the creation and dissemination of false and damaging content. Defamatory deepfakes can depict a person engaging in illegal activities, making offensive statements, or participating in inappropriate behaviour, all of which can lead to serious reputational harm.

Legal considerations for defamation involving deepfakes include:

• False Imputations: Portraying individuals in situations that falsely imply wrongdoing or misconduct.
• Reputation Damage: Causing harm to a person’s standing in the community or professional field through fabricated media.
• Proving Harm: Demonstrating that the deepfake content has caused actual damage to the individual’s reputation, which may involve complex legal proceedings.

Victims of defamatory deepfakes may seek compensation through defamation laws, although challenges such as proving the origin of the deepfake and the intent behind its creation can complicate legal actions.

Current Legal Framework in Australia

Defamation Law

Defamation law in Australia offers some protection against the malicious use of deepfakes that harm an individual’s reputation. Deepfake content that falsely portrays someone in compromising situations can lead to defamation claims. For example, creating and distributing a deepfake video of a public figure engaging in illegal activities without their consent can be considered defamatory. Victims can seek compensation for the damage to their reputation and may also pursue injunctions to have the defamatory material removed. However, proving defamation with deepfakes can be challenging due to the difficulty in identifying the original creator and the rapid spread of digital content.

Copyright Law

Copyright law provides limited avenues for addressing deepfakes in Australia. While deepfakes often involve the manipulation of existing copyrighted material, such as a celebrity’s likeness, the copyright owner may have grounds to pursue infringement claims. Under the Copyright Act 1968 (Cth), the unauthorised use of someone’s likeness in a deepfake could constitute a breach of their copyright if the original image or video is protected. However, this protection is contingent upon the copyright holder taking legal action, which may not always be feasible for individuals affected by deepfakes. Additionally, copyright law does not specifically address the creation of deepfakes, making it a less effective tool for combating their malicious use.

Consumer Law

Consumer law in Australia can be applied to deepfakes that mislead or deceive consumers in commercial contexts. The Australian Consumer Law (ACL) prohibits misleading and deceptive conduct in trade or commerce, which includes the creation and distribution of deepfakes that falsely represent endorsements or affiliations with products and services. For instance, if a deepfake video falsely shows a celebrity endorsing a product, the company behind the product could face legal repercussions under the ACL for misleading consumers. However, the application of consumer law is limited to instances where the deepfake is used in a commercial setting, and proving the intent to deceive can be complex.

Criminal Code Amendment (Deepfake Sexual Material) Bill 2024

New Offences Introduced

The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (NSW) introduces specific offences aimed at curbing the misuse of deepfake technology for creating and distributing sexually explicit material without consent. These new offences target the deliberate creation of deepfake sexual content, ensuring that individuals who produce such material are held accountable under the law.

Furthermore, the Bill criminalises the distribution of deepfake sexual material, recognising the significant harm caused by non-consensual sharing of intimate images created using AI tools. By addressing both the creation and distribution aspects, the legislation ensures comprehensive coverage of malicious deepfake activities.

Additionally, the amendment introduces an aggravated offence for cases where the perpetrator both creates and distributes deepfake sexual material. This heightened offence reflects the increased severity of actions that involve both production and dissemination of harmful content, warranting stricter penalties to deter such behaviour.

Penalties and Legal Consequences

The Bill imposes substantial penalties to deter the creation and distribution of deepfake sexual material. Individuals convicted of sharing non-consensual deepfake sexually explicit material face imprisonment terms of up to six years, underscoring the serious nature of these offences.

For those who are found guilty of both creating and distributing deepfake sexual content, the Bill categorises this as an aggravated offence, carrying a higher penalty of up to seven years imprisonment. These enhanced penalties are intended to serve as a strong deterrent against the misuse of deepfake technology for sexual exploitation.

In addition to imprisonment, the legislation supports the reinforcement of existing legal mechanisms, such as increased funding for the eSafety Commissioner. This ensures effective enforcement of removal notices and empowers authorities to take decisive legal action against offenders.

The introduction of these penalties marks a pivotal advancement in the legal framework, aiming to protect individuals from the pervasive threat of deepfake abuse. Navigating the legal complexities of deepfake misuse can be challenging. If you need legal guidance on your rights and options, our team is here to assist. 

Penalties and Legal Consequences

Existing Penalties

Under the current legal framework in Australia, several laws address the misuse of deepfake technology, each carrying specific penalties:

• Criminal Code 1995: Section 474.17(1) makes it an offence to use a carriage service in a menacing, harassing, or offensive manner. This offence carries a maximum penalty of three years imprisonment. For aggravated offences, where additional factors are present, the penalty increases to five years imprisonment.
• Online Safety Act 2021 (Cth): Section 75 of the Online Safety Act 2021 (Cth) prohibits the posting of intimate images of a person without their consent online. This is a civil offence that attracts a maximum fine of 500 penalty units. Enforcement is managed by the eSafety Commissioner, who can issue removal notices and formal warnings to perpetrators.
• State Legislation: Certain Australian states, such as Victoria and South Australia, have introduced specific summary offences addressing the non-consensual sharing of intimate images and deepfake pornography. While the exact penalties vary, these laws reinforce the protection against deepfake misuse at the state level.

Proposed Aggravated Offences

The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (NSW) introduces enhanced penalties to address the creation and distribution of deepfake sexual material more effectively:

• Primary Offence: Sharing non-consensual deepfake sexually explicit material is now classified as a criminal offence, carrying a maximum penalty of six years imprisonment. This amendment recognises the severe emotional and reputational harm caused by such actions.
• Aggravated Offence: When an individual both creates and distributes deepfake sexual material without consent, the offence is considered aggravated. This carries a higher penalty of up to seven years imprisonment, reflecting the increased severity of combining creation and distribution with malicious intent.

These proposed changes aim to deter the malicious use of deepfake technology by imposing stricter penalties on perpetrators, thereby enhancing the legal protections available to victims.

Challenges in Prosecuting Deepfake Offences

Identification and Proof

One of the primary challenges in prosecuting deepfake offences is identifying the creators and proving their intent. Perpetrators often utilise anonymising technologies like VPNs to obscure their digital footprints, making it difficult to trace deepfakes back to them. Additionally, victims frequently do not know the identity of those responsible for sharing non-consensual deepfake pornography, which complicates the gathering of evidence and establishing malicious intent. The process of digital forensics and expert analysis required to authenticate and analyse deepfakes further adds to the complexity of these cases.

Jurisdictional Issues

Jurisdictional complications arise due to the cross-border nature of deepfake distribution. If a deepfake is created or distributed from outside of Australia, enforcing the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (NSW) or other Australian laws becomes problematic. International cooperation is often necessary but can be hindered by varying legal standards and enforcement capabilities among countries. This means that deepfake perpetrators can exploit jurisdictional loopholes, making it challenging for Australian law enforcement and the judiciary to pursue legal action against offenders operating from foreign jurisdictions.

Case Study: Deepfakes in a School Setting

A recent incident in Sydney highlights the real-world implications of deepfake technology, particularly its potential for misuse among young people. A high school senior was investigated by police after allegedly creating deepfake pornographic images of female students. The student is also accused of creating fake social media profiles of the victims. The NSW Department of Education is assisting police with their investigation, emphasising that such behaviour is not tolerated.

The Education Minister described the incident as “abhorrent” and assured that the student would face serious disciplinary action, while the police investigation will focus on potential criminal charges. The Department has also referred the matter to the eSafety Commissioner, underscoring the growing concern about the harmful potential of deepfakes and the need for effective legal and regulatory responses. This case underscores the vulnerability of individuals to deepfake abuse, even within school communities, and the urgent need for preventative measures and robust legal frameworks.

Conclusion

Deepfake technology has introduced significant challenges within the legal landscape of New South Wales, particularly concerning the creation and distribution of non-consensual deepfake sexual material. The existing legal framework, including the Criminal Code 1995 (Cth) and the Online Safety Act 2021 (Cth), provides some measures against the misuse of deepfakes, but these laws are currently insufficient to address the evolving threats posed by this technology. The introduction of the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (NSW) marks a pivotal step towards closing these legal gaps by establishing new offences and enhancing penalties for perpetrators, thereby offering stronger protection for victims.

If you or someone you know has been affected by deepfake misuse or requires legal guidance on digital privacy and online safety, our experienced team is here to help. Contact our law firm today to discuss your options and protect your rights.

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