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The Criminalisation of Sexually Explicit Deepfake Images

The digital alteration and manipulation of video, also known as deepfaking, has become more and more sophisticated and convincing in recent years.

A report by Deeptrace into the phenomenon – dating back to 2019 – was able to locate 14,678 deepfake videos online; 96% of which were pornographic. But are deepfakes illegal?

Due to the proliferation of content of this kind, along with the severity of the impact on its victims, local and international lawmakers and enforcers have been required to crack down on illegal activity involving the use of deepfake imagery.

New deepfake legislation, passed on 16th April 2024, targets the creators of sexually explicit video manipulations.

In this article, the team at DPP Law will explore this new deep fake law, discuss what constitutes a sexually explicit deepfake and explain where to seek legal advice on the matter.

Introduction to The New Law

The creation of sexually explicit images without consent is already considered a crime, with deepfake imagery joining a selection of other offences – such as “upskirting” and “revenge pornography” – to be punishable by law.

Specifically, it is a criminal offence to:

Intentionally take or record an intimate image or film without consent or a reasonable belief in consent
Take or record an intimate image or film without consent and

with intent to cause alarm, distress or humiliation; or
for sexual gratification.

Forming a new part of the Criminal Justice Bill, the new deepfake legislation introduced in April 2024 authorises the bringing of charges against anyone who creates sexually explicit deepfake imagery or video – regardless of any intention to allow wider access.

If the deepfake goes on to be shared with others, the potential penalties are more severe.

We’ll detail the sentencing guidelines for this new offence shortly – but first, we must define exactly what is considered a sexually explicit deepfake by law.

What Constitutes a Sexually Explicit Deepfake?

Simply put, a sexually explicit deepfake is a piece of media – usually video footage – that has been manipulated to replace one or more of the individuals shown with another individual not originally pictured.

The aim of the content of this kind is usually to convince those who see it that the latter individual is a genuine subject of the images.

The use of AI has made today’s deepfakes (a word that combines the terms “deep learning” and “fake”) exceptionally convincing.

For this reason, manipulating material of this kind to include the likeness of an unknowing and/or unwilling real individual is equivalent to taking or recording “an intimate image or film without consent”.

It can cause extreme emotional trauma including alarm, humiliation or distress – and may damage the victim’s reputation or career prospects. The creation of deepfakes featuring children also feeds into the ongoing issue of child pornography.

Legal Implications

If you have been accused of creating sexually explicit deepfake imagery without the consent of the subject, you may face an unlimited fine should you be charged.

However, if it is found that the imagery you allegedly created has been shared with others, you may face a prison sentence.

There is currently no guidance on the maximum sentence for the production of sexually explicit deepfakes. However, related offences – those of disclosing or threatening to disclose private sexual images and of voyeurism, which covers crimes such as “upskirting” – both come with a maximum custodial term of two years.

For this reason, if you are accused of an offence of this kind, you must seek legal advice as a matter of urgency.

The legal process

As soon as you suspect that you may be accused of creating sexually explicit deepfake imagery, you must seek advice from a specialist deepfake solicitor.

The criminal defence lawyers at DPP Law have more than three decades’ worth of experience in representing individuals who are the subject of false accusations, including the creation and distribution of explicit images without consent.

If you have been falsely accused, your solicitor should be able to help you collect enough evidence to prove that no further action should be taken by the authorities. If insufficient evidence is provided, you may receive a caution.

However, due to the seriousness of the offence, it is very likely that – if it is found that you have a case to answer – you may well be summoned to court, where you could face a significant penalty.

Once you have instructed a solicitor, they will be able to accompany you to interviews and help to collect evidence to prove your innocence. They will also support and advise you throughout any investigation and can build a strong defence with which they may represent you should your case be taken to court.

To find out more, or to instruct a solitaire from DPP Law regarding potential accusations or charges of sexually explicit deepfake production or distribution, simply get in touch with us today.