Sexually explicit deepfakes and the criminal law in NSW
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Research Analyst, Parliamentary Research Service
This 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.
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Key points
- Deepfakes are highly realistic but false images, video, audio or text. They were developed in 2017 and have since proliferated. In 2023, sexually explicit deepfake videos accounted for 98% of the 95,820 deepfake videos that were online. Most of the victims depicted in sexually explicit deepfakes are women.
- Sexually explicit deepfakes are associated with emotional, personal and societal harms, and have been viewed as a form of image-based sexual abuse and AI-facilitated abuse.
- In 2022, Victoria introduced offences that prohibit producing, distributing or threatening to distribute intimate images of adults. The definition of intimate images covers sexually explicit deepfakes.
- In 2024 Commonwealth offences were introduced to prohibit a person from using a carriage service, such as the internet, to transmit sexually explicit deepfakes of adults.
- NSW does not have offences that expressly prohibit the production and distribution of sexually explicit deepfakes of adults. The most relevant offences were introduced in 2017 and prohibit the recording and distribution of intimate images.
- Consequently, it is doubtful whether the production of sexually explicit deepfakes of adults is prohibited in NSW. The in-person distribution of sexually explicit deepfakes, and threats to do so, may also not be prohibited in NSW, depending on whether a particular deepfake was altered or generated anew.
- The limitations and uncertainties relating to NSW’s intimate image offences could be remedied if they were amended along the lines of the new Commonwealth and Victorian offences.
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