Are deepfakes illegal in Australia?

Introduction

In Australia, at a federal level, image-based sexual abuse has been criminalised across the country. In addition, a person who shares intimate images or videos without consent may be liable to a civil penalty. Every state and territory in Australia has also criminalised image-based sexual abuse, except Tasmania.

Although Australia’s image-based sexual abuse laws do not specifically and expressly refer to ‘deepfakes’ or AI-generated fake pornographic videos, the non-consensual distribution of deepfakes would fall within Australia’s federal image-based sexual abuse laws, and are likely to fall within most, if not all, of Australia’s state and territory image-based abuse laws (further discussion below). As such, the non-consensual distribution of deepfakes would be illegal in Australia.

A brief outline of Australia’s image-based abuse laws are included below, as well as a discussion of their applicability to deepfakes.

Terminology

Image-based sexual abuse (also referred to as technology-facilitated abuse or technology-enabled abuse) refers to the non-consensual sharing, recording, and threatening to share or record intimate images or videos, including images or videos that have been altered, for example, photoshopped images or deepfakes.

Deepfake abuse is a form of image-based sexual abuse, and refers to the non-consensual sharing of AI-generated fake pornographic videos (or altered intimate videos).

Commonwealth

Commonwealth civil penalty regime

In 2018, the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 (Cth) came into force to ‘combat the non-consensual sharing of intimate images‘ by amending the Enhancing Online Safety Act 2015 (Cth).

These laws make it illegal for individuals to post, or make a threat to post, an intimate image of another person without consent on a ‘social media service’ (Facebook, Messenger, Instagram, YouTube, Twitter), ‘relevant electronic service’ (email, SMS/MMS), ‘designated internet service’ (websites and peer to peer file services). Civil penalty: 500 penalty units or $110,000 as at August 2021): s 44B.

If a person contravenes the above section (s 44B): the commissioner may issue a formal warning: s 44C; issue a removal notice to remove the material from the service: s 44E; or issue a remedial direction: s 44K.

These laws also empower the eSafety Commissioner to issue a social media service with a removal notice for non-consensual intimate images or videos posted on their service. Failure to comply with a removal notice may result in a civil penalty of 500 units ($555,000 for body corporates as at the date of publication of this article): s 44G.

Under the Enhancing Online Safety Act, an intimate image means an image or video that depicts or appears to depict a private activity, a person’s private parts, or a person without attire of religious or cultural significance. It is also immaterial whether the intimate images or videos have been altered (s 9B(5)).

Private parts (s 9B(2)) includes:

  • a person’s genital or anal area (bare or covered by underwear); or
  • a person’s breasts if the person is female or a transgender or intersex person identifying as female.

Private activity (s 9B(3)) includes depictions of a person:

  • in a state of undress;
  • using the toilet;
  • showering;
  • having a bath;
  • engaged in a sexual act of any kind not ordinarily done in public; or
  • engaged in any other like activity

Depictions of people without attire of religious or cultural significance includes material of a person without attire of religious of cultural significance where because of the person’s religious or cultural background, the person consistently wears that attire whenever the person is in public: s 9B(4).

Given that the definition of intimate image includes altered intimate videos, deepfakes that depict any of the above would be captured within these laws.

Commonwealth criminal laws

The Enhancing Online Safety Act also amended Australia’s criminal laws in the Criminal Code Act 1995 (Cth) (‘Criminal Code’).

Under these criminal laws, it is an offence to:

  • distribute private sexual material, punishable by imprisonment of 5 years: s 474.17A(1) of the Criminal Code.

Repeat offenders may be facing 7 years imprisonment: s 474.17A(4).

Private sexual material means material that depicts a person engaged in, or appears to be engaged in, a sexual pose or sexual activity in certain circumstances that give rise to an expectation of privacy. It also includes material depicting a sexual organ, or anal region of a person, or the breasts of a female: s 473.1 of the Criminal Code.

While the definition of ‘private sexual material’ does not expressly mention image or video, nor whether it is immaterial whether such material is altered, it does state that ‘private sexual material’ means material that ‘depicts a person engaged in, or appears to be engaged in’ a range of situations. This disjunction might suggest that deepfake videos that depict a person appearing to be engaged in a range of activities would fall within these laws.

Western Australia

In 2019, the Criminal Law Amendment (Intimate Images) Act 2019 (WA) introduced the offences of distributing an intimate image or video without consent, and threatening to distribute an intimate image or video without consent, into the Criminal Code Act Compilation Act 1913 (WA) (‘Criminal Code Act’).

In Western Australia:

  • Distributing intimate images without consent is punishable by imprisonment for 3 years, or a summary conviction penalty of imprisonment for 18 months and a fine of $18,000: s 221BD(2) of the Criminal Code Act.
  • Threatening to distribute an intimate image or video is also an offence, and is punishable in certain circumstances by imprisonment for 7 years (ss 338, 338A(f)(ii), 338B, and 338C).

Western Australia also empowers a court to issue a rectification order, meaning that if a person is charged with an intimate image offence, the court may order the persons to delete, destroy, or remove the intimate image: s 221BE(2).

In Western Australia, intimate image means an image or video, including material that has been created or altered, that shows (s 221BA):

  • a person’s genital or anal area;
  • the breasts of a female, transgender or intersex person identifying as female; or
  • a person engaged in a private act (in a state of undress, using the toilet, showering, or bathing, or engaged in a sexual act).

Given that the definition of intimate image includes altered intimate videos, deepfakes would be captured within these laws.

New South Wales

In 2017, the Crimes Amendment (Intimate Images) Act 2017 (NSW) introduced offences to record, distribute, and threaten to record or distribute an intimate image or video without consent into the Crimes Act 1900 (NSW).

In New South Wales:

  • Distributing intimate images or videos is punishable by imprisonment of 3 years, or 100 penalty units ($110,000), or both: s 91Q
  • Recording intimate images or videos is punishable by imprisonment of 3 years, or 100 penalty units ($110,000), or both: s 91P
  • Threatening to distribute or record an intimate image or video is punishable by 100 penalty units ($110,000) or imprisonment for 3 years, or both: s 91R.

Unlike Western Australia’s laws which empowers a court to order that a person charged with an intimate image offence destroy such material, the law in New South Wales empowers a court to issue a rectification order where a person is found guilty of an offence of distributing or recording intimate images or videos without consent.

In New South Wales, intimate image is defined as an image or video of a person’s private parts or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy: s 91N(1).

The definition of intimate image also includes an image or video that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy: s 91N(1).

Given that the definition of intimate image includes altered intimate videos, deepfakes would be captured within these laws.

Victoria

In Victoria, under the Summary Offences Act 1966 (Vic), it is an offence to:

  • Intentionally distribute an image that has been visually captured of another person’s genital or anal region, punishable by 2 years imprisonment: s 41C.
  • Intentionally distribute an intimate image and the distribution is contrary to community standards of acceptable conduct: s 41DA.
  • Threaten to distribute an intimate image and the distribution is contrary to community standards of acceptable conduct: s 41DB.

It should be noted that ‘intimate image’ in Victoria’s laws means an image or video depicting (s 40):

  • a person engaged in sexual activity;
  • a person in an manner or context that is sexual; or
  • the genital or anal region of a person, or in the case of a female, the breasts.

This statutory definition of ‘intimate image’ does not appear to expressly include altered material. Although this definition might be interpreted to also include altered depictions, and in those circumstances, deepfakes would fall within these laws.

In terms of Victoria’s offence of distributing visually captured material, ‘visually capture’ in relation to a person’s genital or anal region, means capturing an image or video of that region by a camera or any other means in such a way that a recording is made of those images or those images are otherwise capable of being distributed: s 40.

In terms of deepfakes, it could be argued that given the definition of ‘visually capture’, Victoria’s offence of visually capturing another person’s genital or anal region might apply to deepfakes that capture a person’s genital or anal region by a camera or other means in such a way that it is capable of being distributed.

Queensland

In Queensland, under the Criminal Code Act 1988 (Qld), it is an offence to:

  • Distribute an intimate image without consent and in a way that would cause the other person distress, punishable by 3 years imprisonment: s 223.
  • Observe or visually record another person in breach of a person’s privacy in a private place, or engaged in a private act, without consent. Punishable by 3 years imprisonment: s 227A(1).
  • Observe or visually record another person’s genital or anal region without consent. Punishable by 3 years imprisonment: s 227A(2).
  • Distribute prohibited visual recordings without consent: s 227B. ‘Prohibited visual recording’ means a recording of a person in a private place engaged in a private act, or of a person’s genital or anal region: s 207A.
  • Threaten to distribute intimate images or prohibited visual recordings without consent, punishable by imprisonment for 3 years: s 229A

Similar to New South Wales, a court may order rectification for a convicted, not charged, person to destroy such material: s 229A.

Intimate image means an image or video, even if it has been altered, that depicts (s 207A):

  • a person engaged in an intimate sexual activity that is not ordinarily done in public;
  • a person’s genital or anal regions (bare or covered in underwear); or
  • if the person is female or a transgender or intersex person who identifies as person – the breasts.

Given that the definition of intimate image includes altered intimate videos, deepfakes would be captured within these laws.

South Australia

In South Australia, under the Summary Offences Act 1953 (SA), it is an offence to:

  • Distribute an invasive image without consent, punishable by imprisonment of 2 years or $10,000 for a person over the age of 17: s 26C
  • Threaten to distribute an invasive image of a person and intends to arouse a fear that the threat will be carried out, punishable by imprisonment for 1 year of $5,000: s 26DA.
  • Engage in humiliating or degrading filming, punishable by imprisonment for 1 year: s 26B
  • Engage in indecent filming, punishable by imprisonment for 2 years or $10,000 : s 26D

An invasive image means an image or video, including altered material by digital or other means, that depicts a person engaged in a private act, or a state of undress: s 26A(1) – (3).

Given that the definition of invasive image includes altered intimate videos, deepfakes would be captured within these laws.

Australian Capital Territory

In the Australian Capital Territory, under the Crimes Act 1900 (ACT), it is an offence to:

  • Distribute an intimate image without consent, punishable by imprisonment for 3 years or 300 penalty units ($48,000), or both: s 72C.
  • Threaten to capture or distribute an intimate image, punishable by imprisonment for 3 years, or 300 penalty units ($48,000), or both: s 72E.

Intimate image means an image or video, including altered images or videos (s 72A), of:

  • a person’s genital or anal region;
  • the breasts of a female or transgender or intersex person who identifies as female;
  • a person engaged in a private act; or
  • a person in a sexual manner or context.

Given that the definition of intimate image includes altered intimate videos, deepfakes would be captured within these laws.

Northern Territory

In the Northern Territory, under the Criminal Code Act 1983 (NT), it is an offence to:

  • Distribute an intimate image without consent, punishable by imprisonment for 3 years: s 208AB.
  • Threaten to distribute an intimate image without consent, punishable by 3 years: s 208AC.

A court may also order rectification for a person found guilty of an intimate image abuse offence (Div 7A) to destroy that material: s 208AE.

Intimate image means an image or video that depicts or has been altered to depict (s 208AA):

  • a person engaged in a sexual act not ordinarily seen in public;
  • a person in a manner or context that is sexual;
  • the genital or anal region (bare or covered by underwear); or
  • the breast (bare or covered by underwear) of a female or transgender or intersex person who identifies as female.

Given that the definition of intimate image includes altered intimate videos, deepfakes would be captured within these laws.

Tasmania

No specific image-based sexual abuse laws.

Disclaimer: this article is not intended to constitute legal advice. And the author welcomes any feedback or suggestions. Any typographical errors or inaccuracies are the fault of the author.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s