Is it a Crime to Produce, Possess or Distribute AI Generated Child Pornography?

AI image generators, which use cutting edge algorithms to create unique, photo-realistic images are quickly becoming popular within creative industries.

But as with all new technologies, they can also be used for nefarious purposes.

Arrest for producing child pornography via AI technology

Police in Spain have recently arrested a man, who allegedly used AI image software to generate “deep fake” child abuse material in the form of child pornography for his personal use.

The case has sparked debate about the law when it comes to using AI technology to generate sexualised but ‘fake’ images of children; specifically, whether it against the law to produce, possess, publish or share such material.

So, how does the law treat such material here in New South Wales, and indeed in Australia?

Child pornography laws here

Criminal laws against child pornography exist at both a state or territory, and at a national level.

At a Federal level, the Criminal Code Act 1995 (Cth), which applies throughout Australia, contains several offences prohibiting the production, distribution and accessing of material that sexualises children.

Under section 474.23 of the Code, it is a criminal offence to possess, control, produce, supply or obtain child abuse material either for personal use or use by another. This carries a maximum penalty of 15 years imprisonment.

At a State level,  section 91H of the Crimes Act 1900 (NSW) makes it an offence to produce, disseminate or possess child abuse material. This carries a maximum penalty of 10 years imprisonment.

There are defences and exceptions to both Commonwealth and New South Wales offences where the material is for artistic, journalistic or medical purposes or otherwise for a public benefit. However, the production of material for the sexual gratification of oneself or others is clearly criminalised throughout Australia.

Definition of child abuse material in the Commonwealth legislation

“Child abuse material” is defined by the Criminal Code Act 1995 (Cth) as that which depicts a person, or a representation of a person, who is, or appears to be, in a way that reasonable persons would regard as offensive:

1. Under 18 years of age, and
2. A victim of torture, cruelty or physical abuse.

Or:

Material that describes a person who is, or is implied to be, in a way that reasonable persons would regard as offensive:

1. Under 18 years of age, and
2. A victim of torture, cruelty or physical abuse.

Or:

Material that depicts a person, or a representation of a person who is, or appears to be, in a way that reasonable persons would regard as offensive:

1. Under 18 years of age, and
2. Engaged in, or appearing to be engaged in, a sexual pose or sexual activity whether or not in the presence of other persons, or in the presence of a person engaged in, or appearing to be engaged in, a sexual pose or sexual activity.

Or:

Material whose dominant characteristic is the depiction, for a sexual purpose, in a way that reasonable persons would regard as offensive:

1. A sexual organ or anal region of a person who is, or appears to be, under 18 years of age, or a representation of such a sexual organ anal region, or
2. The breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age.

Or:

Material that describes in a way that reasonable persons would regard as offensive,

Or:

A person who is, or is implied to be, under 18 years of age and who is:

1. Engaged in, or implied to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or
2. In the presence of a person engaged in, or implied to be engaged in, a sexual pose or sexual activity.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

1. A sexual organ or anal region of a person who is, or is implied to be, under 18 years of age, or
2. The breasts of a female person who is, or is implied to be, under 18 years of age.

Or:

Material that is a doll or other object intended to be used to simulate sexual intercourse that resembles:

1. A person who is, or appears to be, under 18 years of age, or
2. Part of the body of such a person.

Definition of child abuse material of child abuse material in New South Wales

“Child abuse material” is defined by the Crimes Act 1900 (NSW) as anything which depicts:

• A child that is the victim of torture, cruelty or physical abuse, or
• A child engaged in a sexual pose or a sexual activity, or
• A child in the presence of another person that is engaged in a sexual pose or sexual activity, or
• The private parts of a child.

Cartoons fall within the definition

In the case of McEwen v. Simmons, the NSW Supreme Court made clear that child abuse material encompasses depictions of real children as well as fictional characters and drawings that depict someone who appears to be under the age of 18.

In that case, the Court upheld a conviction for possessing child abuse material conviction depicting sexualised cartoons of children from popular television show, The Simpsons.

The issue in dispute was whether the cartoon characters fell within the definition of a ‘person’ under the NSW offence. 

The Court ultimately found that offence was made out because ‘person’ includes fictional or imaginary characters, whether or not they are a realistic representation.

What about AI generated material?

Based on this precedent, AI generated imagery will fall within the definition of child abuse material if it depicts a person under the age of 18 years in a sexualised manner.

Indeed, definitions of child sexual abuse material under by Federal, State and Territory laws are broader than many may think, and can even encompass written descriptions.

This means that using text-based programs, such as Chat GPT to generate storylines involving child abuse themes purely for sexual gratification (rather than an artistic purpose) could fall within the scope of child pornography laws. 

In the New South Wales Court of Criminal Appeal case of R v Jarrold, the defendant had been convicted of the production of ‘child pornography’ for communications in a chat room describing intercourse with underage males.

In the course of the man’s sentencing appeal, the court remarked that “whether or not the material discussed in the communications was the result of fantasies or accounts of actual events was irrelevant”.

The problem with “deepfakes”

Deepfake pornography is where a real picture, video or sound bite is generated to make it appear a person is doing or saying something sexual they’re not. 

The generation of deepfake pornography of another person without their consent is illegal, even if the person “deepfaked” is over the age of 18.

Several offences against “revenge porn” exist under the Crimes Act 1900 (NSW) which criminalise the recording or distribution of intimate images without a person’s consent. 

Section 91P of the Crimes Act makes it an offence punishable by up to 3 years’ imprisonment and/or a fine of $11,000 for a person to intentionally record an intimate image of another person without that other person’s consent, while knowing or being reckless to the fact that the other person did not consent.

Section 91Q of the Crimes Act prescribes the same maximum penalty for anyone who intentionally distributes an intimate image of another person without that other person’s consent, while knowing or being reckless to the fact that the other person did not consent.

And section 91R prescribes the same penalty for anyone who threatens to record or distribute an intimate image without consent, intending the other person to fear the threat would be carried out.

The definition of “intimate image” under the act encompasses note just actual private images of a person, but also: “an image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy”. This means that “deepfakes” fit within the scope of revenge porn laws.

NSW courts will also be empowered to issue “take down” orders, which will force offenders “to take reasonable steps to recover, delete or destroy images taken or distributed without consent”. 

Disobeying this order could lead to a penalty of up to two years in prison and/or a fine of $5500.