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 page outlines the laws on deepfakes and intimate image abuse as they stand in WA.
What are deepfakes?
Deepfakes are AI-generated images that appear to show a person doing or saying something that they never did or said. 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.
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.
Deepfakes can also be used for legitimate purposes such as satire and comedy.
Harms caused by deepfakes
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.
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.
What is an ‘intimate image’?
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.
Distribution of intimate images
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.
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.
Other jurisdictions
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, and others rely on their existing criminal laws to prosecute this behaviour.
In Victoria and South Australia, criminal legislation explicitly refers to AI-generated content, while other states rely on broader definitions that include ‘altered images’.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.