The Criminalization of Deepfakes

Author: Benjamin Brown

On 3 September 2024, new laws were enacted across Australia criminalising the creating, modifying and sharing of deepfake sexual material online.

Deepfake material (‘deepfakes’) is media, such as images or videos, of real people which have been digitally altered to create a realistic but false depiction of them doing or saying something they did not say or do. The use of sexual deepfakes have been criminalised across other states in Australia, however the criminalisation on a Commonwealth level aims to address the gaps currently existing in the law.

In the second reading speech on 5 June 2024, the law was enacted to recognise “the damaging and deeply distressing form of abuse,” and keep pace with new and emerging technologies.

The Criminal Code 1995 was updated to reflect the rise of deepfake media online, amending sections 474.17A and 747.17AA, dealing with using a carriage service to transmit sexual material without consent.

As such, the Prosecution need to prove, beyond reasonable doubt, that the defendant:

1. Used a carriage service (eg message, social media post) to transmit material of another person;
2. The other person being depicted is above 18 years of age;
3. The material depicted is of sexual activity, the other person engaged in a sexual pose, the other persons genitalia or, if female, the breasts of the other person; and
4. Knew this material is being transmitted without consent or is reckless as to their consent.

It is now specified that is irrelevant if the material has been altered or has been created using technology.

The offence is aggravated in circumstances where:

1. 3 or more civil penalty in respect of posting intimate images and/or not complying with removal notices
2. The image was created and/or altered by the defendant

The maximum penalty is 6 years imprisonment and, when aggravated, is 7 years imprisonment.

It should be noted that the Criminal Code already recognises the use of deepfake sexual material in respect of children through the definition of child abuse material.

It is important to understand that as a Commonwealth Offence, there are special provisions in respect to Sentencing and sentencing options may differ to that of a state offence. You should seek legal advice in respect of this offence.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.