The paper presents data on the increasing prevalence of sexually explicit deepfakes and discusses their harmful impacts. It then examines the relevant Commonwealth and NSW offences, which were introduced by the Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth) and the Crimes Amendment (Intimate Images) Act 2017 (NSW).

The paper identifies 3 gaps in NSW’s offences. Firstly, the non-consensual creation of sexually explicit deepfakes of adults is unprohibited in NSW. Secondly, the use of sexually explicit deepfakes to threaten, blackmail or extort someone in person may not be prohibited. Thirdly, showing a sexually explicit deepfake to another person may not be prohibited. These gaps are not covered by the Commonwealth offences because those offences apply only when the internet has been used to transmit sexually explicit material. The paper also considers Victoria’s counterpart provisions, which do apply to sexually explicit deepfakes.