Deepfakes and Intimate Image Abuse (WA)

In recent years, many states and territories have amended their criminal laws in response to the rising prevalence of digital abuse involving deepfake images. In Western Australia, the Criminal Code Act Compilation Act 1913 contains offences that explicitly apply to instances of the distribution of deepfake pornography. This comprehensive legislation provides crucial protections against image-based sexual abuse and non-consensual sharing of intimate content. As technology continues to evolve, understanding these laws becomes increasingly important for both potential victims and those who may inadvertently engage in illegal conduct. This page outlines the laws on deepfakes and intimate image abuse as they stand in WA.

What are deepfakes?

Understanding AI-Generated Content

Deepfakes are AI-generated images that appear to show a person doing or saying something that they never did or said. This sophisticated technology uses artificial intelligence algorithms, particularly deep learning neural networks, to create convincing fake content by superimposing existing images and videos onto source material. In the last several years, it has become very easy to create deepfake content using applications that do not require a high level of skill or technical expertise.

Common Uses of Deepfake Technology

Deepfake content may be created for a range of purposes. It may be used to create disinformation such as videos of politicians giving speeches they never gave, or to conduct a scam by impersonating someone. They can also be used to create pornographic content featuring real people without their consent. Unfortunately, the most prevalent use of deepfake technology has been for creating non-consensual pornographic material, which constitutes a serious form of image-based sexual abuse.

Deepfakes can also be used for legitimate purposes such as satire and comedy, film production, educational content, and artistic expression. However, the potential for misuse has led to significant legal and ethical concerns.

Harms caused by deepfakes

Personal and Psychological Impact

The creation and dissemination of deepfake content can cause a range of harm including social and psychological harm to the person depicted, financial loss, and a loss of confidence in the media through a perception that content generally cannot be viewed as authentic. Victims often experience severe emotional distress, anxiety, depression, and feelings of violation similar to those experienced by survivors of sexual assault.

Statistical Overview and Gender-Based Violence

AI technology has made digital abuse very easy to commit and difficult to trace. 98% of deepfakes have been found to be pornographic, with 99% of the persons depicted being women and girls. This alarming statistic highlights how deepfake technology has become a tool for gender-based violence and harassment. The ease of creation means that perpetrators can target victims with minimal technical knowledge, while the realistic nature of the content can cause lasting damage to reputations, relationships, and mental health.

What is an 'intimate image'?

Legal Definition Under WA Law

Section 221BA of the Act defines an 'intimate image' as a still or moving image, in any form, that shows, in circumstances in which the person would reasonably expect to be afforded privacy:

• the person's genital or anal area
• the breasts of a female; or
• the person engaged in a private act; and
• includes an image, in any form, that has been created or altered to appear to show any of those things.

Key Elements of the Definition

The definition is deliberately broad and includes both authentic images and artificially created or manipulated content. The crucial element of "reasonable expectation of privacy" means that the context in which the image was originally taken or created is relevant. This comprehensive definition ensures that deepfake pornographic content falls squarely within the scope of intimate image abuse laws, regardless of whether the depicted person ever actually posed for such images.

Distribution of intimate images

The Primary Offence

Under section 221BD of the Act, a person commits an offence if they distribute an intimate image of another person without the consent of the other person. The term "distribute" is interpreted broadly and includes sharing, posting online, sending via social media, email, or messaging platforms, and any other form of dissemination.

Penalties and Consequences

This offence has a maximum penalty of imprisonment for three years. If the matter is finalised by a magistrate, the maximum penalty that applies is imprisonment for 18 months and a fine of $18,000. These significant penalties reflect the serious nature of intimate image abuse and its impact on victims. Courts also consider aggravating factors such as the extent of distribution, the relationship between parties, and any commercial motivation.

Creation and Possession Offences

Beyond Distribution

While distribution is the primary offence, Western Australian law also recognises that the creation and possession of intimate images without consent can constitute criminal behaviour. Under section 221BC, it is an offence to take, capture, or create an intimate image of another person without their consent, which explicitly covers the creation of deepfake pornographic material.

Threat to Distribute

Section 221BE creates an additional offence for threatening to distribute an intimate image. This recognises that the threat alone can cause significant psychological harm and is often used as a form of coercive control. The maximum penalty for this offence is imprisonment for two years, acknowledging the serious impact such threats can have on victims.

Defences and Legal Considerations

Available Defences

The Criminal Code provides several defences to intimate image offences. These include situations where the distribution was necessary for law enforcement purposes, court proceedings, or medical treatment. Additionally, there are protections for journalism and other legitimate public interest activities, though these defences are narrowly construed.

Consent and Other Factors

Consent is a crucial element in these offences, and it must be informed and ongoing. Previous consent does not automatically extend to future distribution, and consent can be withdrawn. The prosecution must prove beyond reasonable doubt that the accused knew or ought reasonably to have known that the person depicted did not consent to the distribution.

Other jurisdictions

National Approaches

Different states and territories have taken different approaches to legislating about digital abuse involving deepfakes. Some jurisdictions have introduced specific offences relating to the production and dissemination of deepfakes, while others rely on their existing criminal laws to prosecute this behaviour.

Comparative Legislation

In Victoria and South Australia, criminal legislation explicitly refers to AI-generated content, while other states rely on broader definitions that include 'altered images'. This patchwork of laws across Australia highlights the ongoing challenges in keeping pace with rapidly evolving technology while ensuring consistent protection for victims nationwide.

Frequently Asked Questions