Ruqayyah Snyder
Deepfakes, or AI-generated realistic images of real people doing or saying things they never did, have become a cause for concern in Australia, especially in cases of image-based sexual abuse. While there have been no prosecutions for deepfake abuse, there have been instances of litigation under the Online Safety Act 2021. However, existing laws are considered inadequate, and there is a push for new deepfake-specific laws. In 2024, the Criminal Code Amendment (Deepfake Sexual Material) Bill was passed, making it a criminal offence to create and distribute AI-generated sexually explicit deepfakes without consent.
| Characteristics | Values |
|---|---|
| Current status of deepfake laws in Australia | No specific legislation targeting the use of deepfake material |
| Existing laws that can be applied to deepfakes | Defamation, copyright, and consumer laws |
| Challenges in enforcing defamation laws | Courts' reluctance to grant injunctions, difficulty in detecting deepfakes, and identifying their source |
| Applicability of copyright laws | Contingent on ownership of original material, complicated by AI and machine learning |
| Consumer law protection | Australian Consumer Law (ACL) prohibits deceptive conduct, including deepfakes |
| State-level initiatives | Victoria and South Australia have introduced summary offences for non-consensual sharing of intimate images |
| Federal legislation | Criminal Code Amendment (Deepfake Sexual Material) Bill criminalizes creation and distribution of sexually explicit deepfakes |
| International efforts | China, the European Union, and select US states have legislative initiatives |
| Prosecution challenges | Difficulty in tracing perpetrators, especially with VPNs and foreign actors |
| Victim reporting barriers | Reluctance due to self-blame, perception of insignificance, and lack of physical harm |
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What You'll Learn
Deepfake pornography
Deepfakes are AI-generated or digitally altered pornographic images that are realistic and can easily be mistaken for real photos or videos. They can be created within minutes using publicly available technology. The sharing of such content can be challenging to prosecute due to the use of VPNs, which can mask the perpetrator's IP address and identity. Additionally, if the perpetrator is outside Australia, they are not subject to Australian laws. Victims may also be reluctant to report deepfake pornography due to fears of blame or the perception that it is not a serious offence.
In some Australian states, specific offences involving image-based abuse have been legislated. For example, Victoria and South Australia have introduced summary offences addressing the non-consensual sharing of intimate images in response to deepfake pornography. In 2023, Anthony Rodondo was sued by the eSafety Commissioner for publishing deepfake pornographic images of several women on his website. Despite receiving a removal notice, Rodondo failed to remove the images and was ordered by the Federal Court of Australia to take down the images and refrain from posting or sending any more intimate images.
To address the limitations of existing laws, Australia has proposed new legislation specifically targeting the use of generative AI for creating non-consensual deepfake pornography. The new laws will make it illegal to share any non-consensual deepfake pornographic content with another person, regardless of the platform or audience size. The proposed legislation aims to establish that sharing and creating deepfake pornography is harmful behaviour that will be treated as a criminal offence. Under the new laws, sharing such content will carry a penalty of six years' imprisonment, with an additional year for those who create the images.
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Defamation laws
While Australia lacks specific legislation targeting the use of deepfake material, victims of deepfakes may find recourse under existing defamation laws. Defamation laws in Australia currently encompass digitally altered images, suggesting that they could be extended to cover deepfakes.
Defamation law in Australia requires that, for an action to be brought, the material in question must meet the following criteria:
- Publication: The material must be published to at least one third party.
- Identification: The material must identify the allegedly defamed person (either directly or indirectly).
- Defamation: The material must be defamatory to the ordinary, reasonable person.
Some material is inherently defamatory, and the more "real" a deepfake appears, the more likely it is to be considered defamatory. For example, in the case of Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, the publication of a nude photo of a well-known rugby league player was held to be defamatory.
In the context of deepfakes, a defamation action may be brought by the individual who is the subject of the material, assuming that the material is defamatory. However, the effectiveness of defamation law in curbing the dissemination of deepfakes is limited by the difficulty of quickly securing injunctive relief. Interlocutory injunctions, which would be the most effective way of preventing the spread of online material, are particularly rare in defamation cases in Australia. Additionally, finding the source of deepfake content can be challenging and may prevent a defamation action from being possible.
In addition to defamation law, the Australian Consumer Law (ACL) may offer protection against deepfakes. The ACL prohibits deceptive conduct in trade or commerce and provides for compensation for consumers who have been misled by deepfake content. However, the applicability of the ACL is limited to the realm of trade or commerce.
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Copyright laws
The use of deepfake technology in Australia is currently not covered by a single piece of legislation. However, there are several existing legal avenues that can be used to address the creation and dissemination of deepfake content, including copyright law.
Copyright law in Australia may provide a potential avenue for addressing the ramifications of deepfake manipulation. The intricate interplay of AI and machine learning in deepfake creation complicates the determination of copyright ownership, as legal protection traditionally extends to works with human authors. As deepfake technology advances, copyright law's defence against violations weakens.
In the context of deepfakes, copyright issues can be divided into two stages: the training stage and the output stage. At the training stage, if AI models use images taken without consent to train their systems, this could constitute copyright infringement as it involves making copies. However, the existence of the model itself is unlikely to be a copyright infringement.
At the output stage, if a deepfake is created by attaching someone's face to an existing video, the copyright owner of the original clip may have a valid copyright claim. This is because they own the copyright to the work depicting their face or recording their voice. However, there is currently no law in Australia that recognises IP rights in one's own face or voice per se, creating a gap in the law. This means that Australian IP law does not immediately protect an individual from being the subject of a deepfake unless they can prove that it reproduces a substantial part of a copyright-protected work.
While copyright law can be a tool to address deepfake manipulation, it is important to note that it may not always be effective in curbing the dissemination of deepfakes due to the challenges in detecting and attributing the source of such content.
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Criminal Code Amendment (Deepfake Sexual Material) Bill
The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 is a proposed legislation in Australia that aims to address the growing concern surrounding the use of deepfake technology to create and disseminate sexual content without consent. The bill seeks to strengthen existing laws and introduce new offences to better address the harms caused by deepfake sexual material.
Currently, there are gaps in Australian legislation regarding deepfake sexual content. While the Online Safety Act 2021 provides some measures to address this issue, it is not enough to prevent all forms of harm. There have been instances where individuals have been charged under the Online Safety Act, but the lack of specific deepfake legislation makes prosecution difficult.
The proposed bill aims to address these deficiencies by creating clear and certain criminal offences at the Commonwealth level. It will specifically target the non-consensual creation and sharing of deepfake sexual material, with penalties of up to six years' imprisonment for the primary offence. The bill also introduces an aggravated offence with a penalty of seven years' imprisonment for those responsible for both creating and disseminating deepfake sexual content.
The Law Council of Australia has played a critical role in scrutinising the proposed legislation, emphasising the need for well-drafted and clear offences. They have also made several recommendations, including a review of the proposed penalties, which may be disproportionate when compared to similar offences in state and territory laws. The Law Council has also recommended that the Attorney-General continue working towards harmonised offences across Australian jurisdictions and that consent should be sought from the CDPP prior to commencing prosecutions against children under 16 years of age.
The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 is a significant step forward in recognising the harms caused by deepfake sexual material and seeking to hold perpetrators accountable. By introducing specific offences and penalties, the bill aims to deter and mitigate the creation and dissemination of deepfake sexual content, providing better protection for victims.
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Inadequate legislation
In recent years, there has been a growing concern about the proliferation of deepfake pornography in Australia. Deepfakes are AI-generated or digitally altered realistic images or videos of real persons that show them doing or saying something they never did or said. While some Australian states have introduced summary offences involving image-based abuse and the non-consensual sharing of intimate images, the existing laws are generally considered inadequate for dealing with deepfakes.
One of the main issues with the current legislation is that it does not specifically address the creation and possession of pornographic deepfakes. The penalties are applied for the 'capture' of intimate imagery, but as deepfakes are created and not captured, they often fall outside the scope of these legal provisions. This loophole allows perpetrators to circumvent existing laws and avoid prosecution.
Another challenge with the current legislation is the difficulty in prosecuting the distribution of deepfakes. Even with updated criminal legislation, it can be challenging to trace the source of deepfake content and identify the perpetrator, especially if they are located outside of Australia. Additionally, victims of deepfake abuse may be reluctant to report the crime due to fears of blame or a perception that it is not a serious offence.
The lack of specific deepfake legislation in Australia has led to calls for legislative changes to address this gap. In response, the Australian government has recently introduced the Criminal Code Amendment (Deepfake Sexual Material) Bill, which criminalizes the sharing of non-consensual AI-generated sexually explicit deepfakes. However, some argue that more needs to be done to address the creation and possession of deepfakes, as well as their use in non-sexual contexts, such as political deception.
While the recent legislative changes are a step in the right direction, it is important for lawmakers to remain vigilant and adaptive in the face of rapidly evolving deepfake technology. The complexity of regulating deepfakes requires a comprehensive legal approach that considers detection, dissemination control, and attribution. By staying proactive and collaborative, lawmakers can work towards effectively addressing the harms caused by deepfakes and protecting the interests of Australian citizens.
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Frequently asked questions
Creating deepfake content is not explicitly illegal in Australia. However, the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 has introduced new criminal penalties for the sharing of non-consensual deepfake sexually explicit material.
The intricate interplay of artificial intelligence and machine learning in deepfake creation complicates the determination of copyright ownership and the identification of the source of the content. Additionally, the rapid progression of technology challenges the ability of legal frameworks to adapt and regulate deepfake content effectively.
Victims of deepfake content can pursue legal action under existing legal frameworks, including defamation, copyright, and consumer laws. Defamation laws encompass digitally altered images, while copyright laws provide recourse to the original creators of the footage. The Australian Consumer Law (ACL) also prohibits deceptive conduct, offering compensation for consumers misled by deepfake content.
There is a recognition that legislative changes are necessary to adequately protect victims of deepfake abuse. The Australian government has introduced the Criminal Code Amendment (Deepfake Sexual Material) Bill, which criminalizes the sharing of non-consensual deepfake sexually explicit material. Additionally, there is a review of the Online Safety Act and proposed measures to address doxing and the role of technology in spreading harmful content.
