AI Sexual Deepfake Images And Audio Laws, Offences And Penalties

Recently, the NSW Government passed the Crimes Amendment (Intimate Image and Audio Material) Act 2025 (NSW) to strengthen protections against the non-consensual recording or sharing of sexual content by extending it to now criminalise:· The creation of intimate images or audio material that's digitally generated, where the material purports to be a genuine depiction of an identifiable real person, without that person's consent;· Alteration of material to be an intimate image or audio material without the consent of the person depicted, noting that distribution of altered images without consent is already criminal;· Distribution of an intimate image or audio material that's digitally generated, where the material purports to be a genuine depiction of an identifiable real person, without that person's consent;· Threatening to engage in any of the above behaviour. The previous intimate image laws (revenge porn) did not extent to material that's wholly digitally created by generative AI.

The new laws prohibit non-consensual creation and distribution of deepfake sexual images and material. The law acknowledges that this is just as harmful as real images recorded and shared without consent.

The second reading speech sets out the objectives of the amendments, which will be summarised in this article, along with a breakdown of all the current offences which criminalise the creation and sharing of intimate images without consent in NSW.

What are Deepfake Sexual Images?

Deepfake material, in the context of intimate images, refers to realistic depiction of sexually explicit material which is wholly created through generative AI technology without the consent of the person who the material is intended to represent. Deepfakes include images, video and audio, are intended to be realistic, and often are due to the rapid advancement in technology.

Reason for the New Intimate Image Deepfake Laws

In 2024 the eSafety Commissioner said that there had been an estimated 550% increase year on year since 2019 in the creation and distribution of deepfakes. Of those deepfakes, 98% were pornographic and 99% of those images were of women and girls.

The second reading speech to the Amendments notes that harm flowing from this material is not only the embarrassment; it can extend to serious psychological, physiological, professional and socio-economic impacts. Threats to make such material public can also cause harm of this nature, and the fear generated through threats is often used as a form of harassment, intimidation or coercion and control.

Are AI Deepfakes Sexual Images Illegal in Australia?

The main purpose or objective of the deepfake intimate image laws is to criminalise non-consensual sexually explicit deepfakes, including those created by generative AI. This reflects the and ensures that the criminal law in New South Wales remains relevant and continues to meet the community expectations during technological evolution. This is a recognition that such conduct is a type of abuse as it objectifies and dehumanises those who are depicted in it.

The Commonwealth Criminal Code 1995 ('the Commonwealth Code') already criminalises conduct that amounts to 'using a carriage service to transmit sexual material without consent under section 474.17Aof the Commonwealth Code. However, this law is limited because it only criminalises the "distribution" of intimate material without consent in connection with "the use of a carriage service". It does not criminalise the creation of sexual deepfake material without consent in circumstances it is not further distributed or where a carriage service is not used.

The new intimate image deepfake offences are not limited to circumstances where the offence occurs in connection to the use of a carriage service or where the material is distributed.

Prior to the new amendments, Part 3, Division 15C of the Crimes Act 1900 (NSW) already contained offences for the non-consensual recording or distribution of intimate images or threatening to record or distribute intimate images. These provisions were introduced in 2017, before the widespread availability of generative forms of AI. For this reason those laws did not criminalise the creation and sharing of sexually explicit deepfakes, only of real intimate images.

The new intimate image laws now also cover sexually explicit audio material in the same way as intimate images. This includes not just deepfake audio, but also real sexually explicit audio, or audio that has been altered to be sexually explicit.

The amendments introduce or alter a number of key definitions.

Meaning of "Intimate Image Material"

The previous definition of intimate image in section 91N of the Crimes Act 1900 (NSW) has been replaced.

The new term "intimate image material" is defined as:

"Any of the following images in circumstances in which a reasonableperson would reasonably expect to be afforded privacy":

• Animage of a person'sprivate parts or of aperson engaged in a private act,
• Animage that has been altered to appear to show a person'sprivate parts or aperson engaged in a private act,
• Animage of a simulated person'sprivate parts or of asimulated person engaged in a private act.

Meaning of "Intimate Audio Material"

The new amendments extend the law to criminalise the creation or sharing (or threats to do either of these things) intimate audio material in the same way as intimate images.

Intimate audio material is defined in 91N of the Crimes Act 1900 (NSW) as:

"Any audio that is sexual in nature or relates to engagement in a private act, in circumstances where a reasonable person would reasonably expect to be afforded privacy."

This definition will include real audio, altered audio and audio of a simulated person.

Meaning of "Simulated Person"

The term "simulated person" is defined in 91N of the Crimes Act 1900 (NSW) as:

"A person depicted in digitally generated material that either expressly purports to be a genuine depiction of an identifiable real person, or so closely resembles a real person that a reasonable person who knew the real person would consider it likely to be a genuine depiction of that person."

This definition covers images that are expressly billed as a depiction of the subject and where the subject is not expressly identified, but the fact that the image is designed to be a depiction of them is undeniable. The second reading speech states that this definition is designed to avoid a potential loophole whereby a defendant claims the resemblance is coincidental.

Meaning of "Consent" in Intimate Image or Audio Material Offences

For the purposes of these offences, the definition of consent is contained in section 91O of the Crimes Act 1900 (NSW).

Consent is present only if the person subject of the recording, creation, distribution or alteration of the intimate image video or audio material if the person "freely and voluntarily agrees" to the recording, creation, distribution, or alteration.

The subsection also expressly notes:

• Consent on a particular occasion is not by reason only of that fact to be regarded as evidence of consent on another occasion.
• Consent to a particular person or in a particular way is not, by reason only of that fact, to be regarded as evidence of consent to another person or in another way.
• A person who distributes intimate image or audio material of themselves is not, by reason only of that fact, to be regarded as having consented to any other distribution of the intimate image or audio material.
• A person does not consent to the recording, creation, alteration or distribution of intimate image or audio material if:
• Theperson is under the age of 16 years or does not otherwise have the capacity to consent, including because of cognitive incapacity
• Theperson does not have the opportunity to consent because the person is unconscious or asleep
• Theperson consents because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
• Theperson consents because the person is unlawfully detained.
• There is no limit on the grounds on which it may be established that aperson does not consent to the recording, creation, alteration or distribution of intimate image or audio material.

Penalties for AI Deepfake Sexual Image Offences | Recording and Distributing Intimate images or Audio Material

Record intimate image or audio material without consent – 91P

In order to be guilty of the offence of section 91P Crimes Act the prosecution must prove each of the following elements beyond reasonable doubt:

• That you intentionally recorded an intimate image or audio material of another person
• The other person did not consent
• You knew the other person did not consent, or you were reckless as to where the other person consented to the recording

The maximum penalty for this offence is 100 penalty units or 3 years imprisonment or both.

Altering images or audio or using simulated person to create intimate image or audio material – s 91 PA

In order to be guilty of the offence of section 91PA(1) Crimes Act of altering an image or audio of another person, the prosecution must prove each of the following elements beyond reasonable doubt:

• That you intentionally altered an image or audio of another person so that the image or audio is intimate image or audio material
• The other person did not consent to the alteration
• You knew that the other person did not consent to the alteration or you were reckless about whether the other person consented to the alteration

In order to be guilty of the offence of section 91PA(2) Crimes Act of creating an intimate image or audio of a simulated person, the prosecution must prove each of the following elements beyond reasonable doubt:

• That you intentionally created an intimate image or audio material of a simulated person
• Without the consent of the real person whom the image or audio is meant to represent
• You knew the real person did not consent or you were reckless about whether the real person consented to the creation

The maximum penalty for these offences is 100 penalty units or 3 years imprisonment or both

Distributing intimate images or audio without consent – 91Q

In order to be guilty of the offence of section 91Q Crimes Act of distributing an intimate image or audio without consent, the prosecution must prove each of the following elements beyond reasonable doubt:

• That you intentionally distributed intimate images or audio material of another person
• The other person did not consent
• You knew the other person did not consent, or you were reckless as to whether they consented to the distribution

The maximum penalty for these offences is 100 penalty units or 3 years imprisonment or both

Threaten to record, create, alter, or distribute intimate image or audio material – 91R

In order to be guilty of the offence of section 91R Crimes Act of threatening to record, create, alter or distribute intimate images or audio material, the prosecution must prove each of the following elements beyond reasonable doubt:

1. You threatened to do any of the following:
   • Record intimate image or audio material of another person
   • Alter an image or audio of another person, so that the image or audio is "intimate image or audio material"
   • Create "intimate image or audio material" of a "simulated person."
   • Distribute "intimate image or audio material" of another person
2. The other person, being the real person whom the image or audio represents, did not consent
3. You intended to cause that other person to fear that the threat will be carried out

A threat may be made by any conduct, and may be explicit or implicit, and conditional or unconditional. A threat can be made irrespective of whether the intimate image or audio material actually exists.

The prosecution is not required to prove that the person alleged to have been threatened actually feared that the threat would be carried out.

The maximum penalty is 3 years imprisonment, a file of 100 penalty units, or both.

Defences to AI Deepfake Sexual Image Offences Under section 91T

Section 91T Crimes Act sets out a number of exceptions to the offences for recording or distribution of intimate images, which include:

• That the conduct was done for genuine medical or scientific purposes
• That the conduct was done by a law enforcement officer for genuine law enforcement purposes
• That the conduct was required by a court or reasonably necessary for the purpose of legal proceedings
• That a reasonable person would consider the conduct acceptable, with reference to, among other things, the age, intellectual capacity, vulnerability or other relevant circumstances of the depicted person, and the degree to which the accused person's actions affect the privacy of the person depicted in the image.

These exceptions do not apply to the offence under of threatening to engage in the relevant conduct. As the second reading speech to the amendments explain, this is because such threats cannot have a legitimate purpose, as they are only to intimidate, coerce or control another person.

What To Do if You Are a Victim of Deepfake Abuse

Section 91S Crimes Act enables a court, following a guilty finding, to order the offender to take reasonable actions to remove, retract, recover, delete or destroy relevant material connected to that conviction, in a period specified by the court.

A person guilty of threatening to commit those offences above may be ordered by the court to take reasonable action to remove, retract, recover, delete or destroy any intimate image or audio material threatened to be distributed by the offence within a period specified by the court.

Failing to comply with such an order, without reasonable excuse, is a criminal offence that carries a maximum penalty of 2 years imprisonment or a fine of 50 penalty units, which is $5,500, or both.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.