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  • Writer's pictureGeoff Harrison

Deepfake Pornography


Criminal Barrister, Criminal Lawyer, Criminal Solicitor, Best Criminal Barrister, Best Criminal Lawyer, Best Criminal Solicitor, Deepfake, Deepfake pornography, s474.17A

Published by Geoff Harrison | 23 June 2024


As outlined in the explanatory memorandum to the legislation, the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 introduces s474.17A, which targets the creation and non-consensual sharing of sexually explicit material online, including material that has been created or altered using technology such as deepfakes. Deepfakes refer to images, videos or sound files, generated using AI, 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. As technology advances AI and machine learning even further, the sophistication of deepfake techniques increases, making it almost impossible to detect deepfake material.


The maximum penalty is 6 years imprisonment or 7 years imprisonment if the offence is specially aggravated.


Other Sources:


Cases:


Extracted Legislation:


Criminal Code Act 1995 (Cth)


474.17 Using a carriage service to menace, harass or cause offence


(1) A person commits an offence if:


(a) the person uses a carriage service; and


(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.


Penalty: Imprisonment for 5 years.


(2) Without limiting subsection (1), that subsection applies to menacing, harassing or causing offence to:


(a) an employee of an NRS provider; or


(b) an emergency call person; or


(c) an employee of an emergency service organisation; or


(d) an APS employee in the Department administered by the AFP Minister acting as a National Security Hotline call taker.


474.17A Aggravated offences involving private sexual material--using a carriage service to menace, harass or cause offence


Standard aggravated offence


(1) A person commits an offence against this subsection if:


(a) the person commits an offence (the underlying offence ) against subsection 474.17(1); and


(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and


(c) the material is private sexual material.


Penalty: Imprisonment for 6 years.


(2) There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.


(3) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.


Special aggravated offence


(4) A person commits an offence against this subsection if:


(a) the person commits an offence (the underlying offence ) against subsection 474.17(1); and


(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and


(c) the material is private sexual material; and


(d) before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:


(i) contraventions of subsection 75(1) of the Online Safety Act 2021;


(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act.


Penalty: Imprisonment for 7 years.


(5) There is no fault element for the physical element described in paragraph (4)(a) other than the fault elements (however described), if any, for the underlying offence.


(6) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (4)(a) if the person has a defence to the underlying offence.


(7) Absolute liability applies to paragraph (4)(d).


Note: For absolute liability, see section 6.2.


Double jeopardy etc.


(8) A person who has been convicted or acquitted of an offence (the aggravated offence ) against subsection (1) may not be convicted of an offence against subsection 474.17(1) or subsection (4) of this section in relation to the conduct that constituted the aggravated offence.


(9) Subsection (8) does not prevent an alternative verdict under section 474.17B.


(10) A person who has been convicted or acquitted of an offence (the aggravated offence ) against subsection (4) may not be convicted of an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.


(11) Subsection (10) does not prevent an alternative verdict under section 474.17B.


(12) A person who has been convicted or acquitted of an offence (the underlying offence ) against subsection 474.17(1) may not be convicted of an offence against subsection (1) or (4) of this section in relation to the conduct that constituted the underlying offence.


When conviction must be set aside


(13) If:


(a) a person has been convicted by a court of an offence against subsection (4) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:


(i) contraventions of subsection 75(1) of the Online Safety Act 2021 ;


(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act; and


(b) one or more of those civil penalty orders are set aside or reversed on appeal; and


(c) if the civil penalty orders covered by paragraph (b) had never been made, the person could not have been convicted of the offence; and


(d) the person applies to the court for the conviction to be set aside;


the court must set aside the conviction.


(14) If:


(a) a person has been convicted by a court of an offence (the aggravated offence ) against subsection (4); and


(b) the court sets aside the conviction under subsection (13);


the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.


474.17B Alternative verdict if aggravated offence not proven


(1) If, on a trial for an offence (the aggravated offence ) against subsection 474.17A(1), the trier of fact:


(a) is not satisfied that the defendant is guilty of the aggravated offence; but


(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 474.17(1);


it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.


(2) If, on a trial for an offence (the aggravated offence ) against subsection 474.17A(4), the trier of fact:


(a) is not satisfied that the defendant is guilty of the aggravated offence; but


(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 474.17(1) or subsection 474.17A(1);


it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1) or subsection 474.17A(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.


"private sexual material" means:


(a) material that:


(i) depicts a person who is, or appears to be, 18 years of age or older and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); and


(ii) does so in circumstances that reasonable persons would regard as giving rise to an expectation of privacy; or


(b) material the dominant characteristic of which is the depiction of:


(i) a sexual organ or the anal region of a person who is, or appears to be, 18 years of age or older; or


(ii) the breasts of a female person who is, or appears to be, 18 years of age or older;


where the depiction is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.


Note: For material that relates to a person who is, or appears to be, under 18 years of age, see:


(a) the definition of child abuse material; and


(b) the offences relating to child abuse material in Subdivision D.


"producing" data, or material that is in the form of data, has the meaning given by section 473.3.


ONLINE SAFETY ACT 2021 - SECT 75 Posting an intimate image

Posting an intimate image


(1) A person (the first person ) who is an end - user of:


(a) a social media service; or


(b) a relevant electronic service; or


(c) a designated internet service;


must not post, or make a threat to post, an intimate image of another person (the second person ) on the service if:


(d) the first person is ordinarily resident in Australia; or


(e) the second person is ordinarily resident in Australia.


Civil penalty: 500 penalty units.


Consent


(2) Subsection ( 1) does not apply if the second person consented to the posting of the intimate image by the first person.


Note: In proceedings for a civil penalty order against a person for a contravention of subsection ( 1), the person bears an evidential burden in relation to the matter in this subsection ( see section 9 6 of the Regulatory Powers (Standard Provisions) Act 2014 ).


Depiction of second person without attire of religious or cultural significance


(3) Subsection ( 1) does not apply if:


(a) the intimate image is covered by subsection 1 5 (4) because it depicts, or appears to depict, the second person without particular attire of religious or cultural significance; and


(b) the first person did not know that, because of the second person's religious or cultural background, the second person consistently wears that attire whenever the second person is in public.


Note: In proceedings for a civil penalty order against a person for a contravention of subsection ( 1), the person bears an evidential burden in relation to the matter in this subsection ( see section 9 6 of the Regulatory Powers (Standard Provisions) Act 2014 ).


Exempt provision of the intimate image


(4) Subsection (1) does not apply if :


(a) in the case of a post of the intimate image --the resulting provision of the intimate image on the service is an exempt provision of the intimate image; or


(b) in the case of a threat to post the intimate image --assuming that the threat had been carried out, the resulting provision of the intimate image on the service would be an exempt provision of the intimate image .


Note: In proceedings for a civil penalty order against a person for a contravention of subsection (1), the person bears an evidential burden in relation to the matter in this subsection ( see section 9 6 of the Regulatory Powers (Standard Provisions) Act 2014 ).


ONLINE SAFETY ACT 2021 - SECT 91 Compliance with removal notice

Compliance with removal notice


A person must comply with a requirement under a removal notice given under section 88, 89 or 90 to the extent that the person is capable of doing so.


Civil penalty: 500 penalty units.

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