Criminalising deepfake sexual material

The Australian Human Rights Commission (Commission) has provided a submission to the Senate Legal and Constitutional Affairs Committee (Committee) on the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (Bill).

Deepfakes

A 'deepfake' can be defined as a digital photo, video or sound file of a real person that has been edited to create an extremely realistic, but false depiction of them doing or saying something that they did not actually do or say.

‘Deepfake sexual material’, sometimes known as ‘deepfake pornography’, or a form of ‘intimate image or video’ refers to deepfakes that are sexual in nature. Such content may show or appear to show an individual naked or partially naked, their genitals or anal region, or engaging in sexual activity.

These materials are often created using tools and artificial intelligence (AI) which can ‘seamlessly blend the facial features of unsuspecting individuals onto explicit images or videos’, making it difficult to detect editing and manipulation.

Harm

Deepfake sexual materials can be used to humiliate, extort, or silence an individual, or for sexual gratification.

Women, girls, and gender diverse people are disproportionately targeted by such content. A 2023 study found that women make up 99% of the individuals targeted in deepfake pornography.

Persons with disability, First Nations peoples, the LGBTIQA+ community, and younger people aged between 16–29 are also heavily targeted by deepfake sexual material.

The Bill

The proposed Bill fills important gaps in the existing legal framework and is a key step towards ensuring that the law catches up with the developments in technology.

The Commission supports the application of criminal penalties for offences under section 474.17A and 474.17AA of the Bill (maximum 6 and maximum 7 years imprisonment respectively). 

These penalties are appropriately significant, reflecting the seriousness of offences, the severely detrimental impact they can have, and the deterrent effect against offending conduct.

To facilitate the effective application and enforcement of the amended Criminal Code, the Commission recommends practical education and training to ensure that the public is aware of the availability of new protections. This will ensure that these protections are appropriately applied by law enforcement and the judiciary. 

Recommendations

The Commission makes three recommendations on specific provisions of the Bill. To learn more, please read the full submission.