The Proposed Federal Offence of Sharing Deepfake Adult Porn in Australia

Federal attorney general Mark Dreyfus has introduced legislation that proposes new criminal offences to prevent the sharing of nonconsensual sexually explicit material online, including deepfakes, and making these offences consistent across the nation.

Indeed, it’s the images created by artificial intelligence to appear like a real person, deepfakes, that are being targeted.

So, if a person who presses share in response to an online post on a social media platform that appears to depict someone having sex, they could be sent away for up to six years.

And as with most of our criminal laws, the offences apply to all regardless of the offender’s age or any other of attribute. And after an ABC journalist raised whether kids might be gaoled over this, the AG agreed it could happen but retorted “by and large, children are not gaoled in Australia”.

Dreyfus introduced the laws this month, while Labor has been prioritising measures framed as online misinformation and disinformation laws that appear to be aimed at content that’s dissenting, while our eSafety commissioner has only recently made a grab at asserting global jurisdiction over the net.

But the clampdown on the internet was already underway last October, when a huge global grassroots movement for Palestine sprung up in opposition to the evidence of the genocide Israel is perpetrating appearing all over the web, despite the official version propagating a myth.

So, while deepfake porn, or presenting AI imagery that makes an individual appear to be partaking in sex in real life is harmful to that victim, when scrutinising Dreyfus’ laws it’s hard not to consider that they’re more about demonising the web, than any practical prevention to stop deepfakes circulating.

AG misleads public in his use of incident to support proposal

When Dreyfus introduced the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 on 5 June, his seconding reading speech about it, his press release regarding laws to “combat sexually explicit deepfakes” and his initial ABC interview gave no concrete recent event warranting the laws.

But as luck would have it, on 12 June, news broke that a Bacchus Marsh Grammar male teenage student had been arrested by Victoria police over his having created deepfake porn imagery involving 50 female high students, who attend the same school.

So, by the time Dreyfus conducted a 14 June ABC interview, he was able to say, “I’ve introduced legislation last week to make it absolutely clear that those who share digitally created sexually explicit material without consent will be subject to serious criminal penalties of up to 7 years.”

Yet, the 50 girls affected by what this male teenager did, are likely, considering they’re high school students, under the age of 18. And as the bill’s explanatory memorandum outlines the new laws don’t cover those under 18, as that’s already criminalised under federal child abuse material law.

Child abuse material online offences are contained under division 474 subdivision D of the Criminal Code Act 1995 (Cth). And a few offences likely capture the above behaviour, including using a carriage service for child abuse material, contrary to section 474.22 of the Code.

This offence, which carries up to 15 years inside, captures the actions of accessing, transmitting, making available, publishing, distributing, advertising, promoting or soliciting child abuse material online.

The is also captured by state and territory legislation across the nation, including section 91H of the Crimes Act 1900 (NSW), which makes it an offence punishable by a maximum penalty of 10 years in prison to produce, disseminate or possess child abuse material. 

And in terms of the state of Victoria and the Bacchus Marsh incident, that state already has laws in place to deal with these crimes, including provisions that stipulate deepfakes.

Section 51C of the Crimes Act 1958 (Vic) makes it an offence to produce child abuse material, including when it has been artificially produced. This offence can see some liable to up to 10 years inside.

And as for sharing or distributing an “intimate image” in Victoria, that behaviour is outlawed under section 53S of the Crimes Act , and it carries up to  3 years imprisonment.

Much ado about nothing

And while the attorney general is marketing the government’s proposal as an important and necessary step in the fight against deepfake porn, the fact of the matter is an existing federal offence already criminalises such conduct.

In that regard, section 474.17 of the Criminal Code Act 1995 makes it an offence punishable by 5 years in prison to use a carriage service – such as the internet – in a way which a reasonable person would regard as menacing, harassing or offensive in the circumstances.

The key word in the present context is ‘offensive’, which on any reasonable interpretation captures conduct involving the manipulation of a real person’s image to sexualise them before sharing it with others.

So, while the maximum penalties for the proposed offences are slightly higher, and the proposed offence is more targeted, there is an argument that it is both unnecessary and insignificant given the current state of the law.

The guts of the bill

The crux of the proposed legislation is that it revokes and replaces the current 474.17A Criminal Code offence of aggravated offences involving private sexual material – using a carriage service to menace, harass or cause offence with the new offence of using a carriage service to transmit sexual material without consent.

The current offence and the drafted crime both carry six years. And transmitting here is taken to mean sharing.

The provisions in the section specify that the material can be computer generated, although besides this, it could be argued that the current law might already criminalise deepfake porn.

The old offence criminalises “private sexual material”, whilst the proposed new crime outlines in more detail that the law covers a sexual pose or act, or the depiction of the anal area, genitalia or the breasts of a woman. And it underscores that this can be generated artificially created material.

Dreyfus’ new offence stipulates that the person in question in the deepfake porn must appear over 18, or else it’s a child abuse material crime, which earlier lawmakers found unnecessary to stress.

The Deepfake Bill also creates two new aggravated offences, which would be contained under new section 474.17AA of the Criminal Code.

The first aggravated crime pertains to a person who commits the new sharing offence and has also been issued with at least three penalty notices in relation to the Online Safety Act 2021 (Cth) section 75 offence of posting an intimate image or having failed to remove content online under section 91.

And both of these offences can see the accused put away for up to 7 years.

A dangerous place for all

These offences are not only draconian in their scope and perhaps unnecessary given preexisting law, but they appear like kneejerk tough-on-crime laws that states roll out all the time. However, what the nation’s chief lawmaker is urgently responding to at present certainly isn’t clear.

But in terms of demonising the web, these proposed laws would further have this effect in a more subtle way, as those who have ever used social media realise it’s easy to accidentally share someone else’s post. And while it doesn’t happen all the time, when it does one only realises sometime later.

So, while the new deepfake porn proposal doesn’t only criminalise the act of sharing on social media, but it equally applies to emailing such material to an associate, these laws certainly do turn the simple act of scrolling through a newsfeed into a potentially liberty eroding pastime.

And on wading through the Dreyfus bill, it becomes apparent that the nonconsensual sharing deepfake porn offence can involve a sexual pose of a person who looks over 18 and being reckless to whether the person gives consent, and that includes when the offender doesn’t even think about.

So, in the brave new online world the AG and the rest of the Albanese crew are currently creating, there are people spreading misinformation and disinformation, they’re producing hardcore porn which could feature any of us, and there’s the potential to actually press share and be sent to gaol.