The new crime of transmitting sexually explicit Deepfakes – 5 key points you should know
/1. What is the new offence?
The new Commonwealth offence of ‘Using a carriage service to transmit sexual material without consent’ under section 474.17A Criminal Code Act 1995 (Cth), has commenced on 3 September 2024.
It includes targeting the sharing of non-consensual deepfake sexually explicit material.
2. What must the prosecution prove?
An offence is committed if:
1. The first person uses a carriage service to transmit material of another person; and
2. the other person is, or appears to be, 18 years of age or older; and
3. the material depicts, or appears to depict:
a. the other person engaging in a sexual pose or sexual activity (whether or not in the presence of other persons); or
b. a sexual organ or the anal region of the other person; or
c. if the other person is female—the other person’s breasts; and
4. the first person:
a. knows that the other person does not consent to the transmission of the material; or
b. is reckless as to whether the other person consents to the transmission of the material.
3. How does the offence apply to Deepfakes?
The offence provides that it is irrelevant whether the material transmitted is in an unaltered form, or has been or altered in any way, using technology.
This is noted to include images, videos or audio depicting a person that have been edited or entirely created using digital technology (including artificial intelligence), generating a realistic but false depiction of the person.
4. What is the penalty
The maximum penalty is 6 years.
The penalty increases to 7 years in certain situations, including if the person also created or altered the material.
5. What are the exclusions?
It is not an offence if:
a. transmitting the material is necessary for, or of assistance in:
i. enforcing a law of the Commonwealth, a State or a Territory; or
ii. monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
b. transmitting the material is for the purposes of proceedings in a court or tribunal; or
c. transmitting the material is for a genuine medical or scientific purpose; or
d. a reasonable person would consider transmitting the material to be acceptable, having regard to the following:
i. the nature and content of the material;
ii. the circumstances in which the material was transmitted;
iii. the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted, or appearing to be depicted, in the material;
iv. the degree to which the transmission of the material affects the privacy of the person depicted, or appearing to be depicted, in the material;
v. the relationship between the person transmitting the material and the person depicted, or appearing to be depicted, in the material;
vi. any other relevant matters.
Our Brisbane criminal lawyers have significant experience in computer crimes. If you are under investigation or facing charges related to deepfake content, early advice is crucial. Contact our experienced criminal lawyers today for a confidential discussion about your case.
