Criminal Code Amendment (Deepfake Sexual Material) Bill 2024
The Law Council of Australia provided a submission to Senate Legal and Constitutional Affairs Legislation Committee in response to the review of the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (the Bill).
The Law Council is mindful of the gravity of technologically facilitated image-based sexual abuse and is concerned by its growing prevalence.1 In particular, non-consensual intimate images generated by deepfake technology may impact multiple human rights – including an individual’s right to privacy.2 Such material also has the potential to cause serious physical or psychological harm to individuals interfering with the right to security of person. The United Nations Special Rapporteur on the right to privacy recently observed that ‘[t]echnologically facilitated violence combines issues of gender inequality, sexualized violence, Internet regulation, Internet anonymity and privacy’ and ‘[c]ybermisogyny has been manifested on popular social media platforms’.3
As technology evolves, the Law Council recognises the need to reevaluate the adequacy of Australia’s criminal laws to ensure that the specific harms caused by non-consensual sharing of intimate images (including deepfake material) are minimised. A recent report of the United Nations Secretary-General noted that:4
Virtual reality and the metaverse are creating new digital spaces for misogyny and sexual violence. The emergence of new forms of violence has been exacerbated by the growth of artificial intelligence such as deepfake pornographic videos and their negative impact on women’s and girls’ professional and personal lives.
That report also recommended that states recognise violence against women and girls in digital contexts as a human rights violation and as forms of gender-based violence against women and girls and that states should introduce effective criminal laws to prohibit all forms of violence in digital contexts.5
In principle, the Law Council agrees that there must be well-drafted, clear and certain criminal offences at the Commonwealth level to denounce, deter and mitigate the harms arising from the creation and non-consensual sharing of technologically facilitated image-based sexual abuse (including material that has been created or altered using technology such as deepfakes). The purpose of this submission is to identify areas that require further justification – and recommend certain improvements to address our most pressing proportionality concerns with the Bill.
Read the full submission below.
1 United Nations Women and World Health Organisation, Report of the meeting of the Expert Group: Technology-facilitated violence against women: Towards a common definition (15-16 November 2022, New York), 4 proposed the following definition of technology-facilitated violence against women:
…any act that is committed, assisted, aggravated, or amplified by the use of information communication technologies or other digital tools, that results in or is likely to result in physical, sexual, psychological, social, political, or economic harm, or other infringements of rights and freedoms.
2 International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976), Art. 17. See further, United Nations Office of the High Commissioner for Human Rights, Taxonomy of Human Rights Connected to Generative AI (Report, 30 November 2023).
3 United Nations Human Rights Council, Report of the Special Rapporteur on the right to privacy 40th Session Agenda Item 3 UN Doc A/HRC/40/63 (16 October 2019), 13 [70] and [73].
4 United Nations General Assembly, Report of the Secretary-General—Intensification of efforts to eliminate all forms of violence against women and girls 75th Session Item 26 UN Doc A/77/302 (18 August 2022), 4 [8].
5 Ibid, 17 [64].
Last Updated on 22/08/2024