Swift action required: SA BEST introduces bill to close 'Blank Space' in deepfake laws

Today, SA-BEST will be introducing a nation-leading bill to amend the Summary Offences Act 1953 covering the creation, distribution and threat to distribute artificially generated invasive images (‘deepfakes’).

The recent surge in the creation and distribution of deepfake content is the result of significant advances in artificial intelligence capabilities.

As such, the state must meet the moment and ensure its legislation is updated in accordance with developments in technology to best protect South Australians.

Offences named in the Summary Offences Act are currently limited to the depiction of invasive images and indecent filming.

The bill creates new offences related to the creation, distribution and threat to distribute artificially generated invasive and sexually explicit images where these images resemble an actual person – in other words, deepfake.

The bill also increases penalties for existing filming and sexting offences to match the new deepfake penalties in cases where a person’s actual image has been altered and used in the creation, distribution or threat to distribute sexually explicit pictures as opposed to a deepfake of a person that is generated wholly by artificial intelligence.

Under the proposed changes, it will be a defence to a charge against the proposed offences only where the person has consented to the creation and or distribution of the images. 

The consent provisions will not apply to somebody charged with an offence against a minor, or vulnerable persons, or where consent was obtained under duress or deception.

Those found guilty of distributing deepfakes will now be met with a maximum $20,000 penalty or imprisonment for 2 years.

If the deepfake purports to depict a real person who is under the age of 17 years, the maximum penalties will rise to $40,000 or imprisonment for 4 years.

Crucially, the creation of deepfakes will now incur a maximum penalty of $10, 000 or imprisonment for 1 year; where the depicted person is under the age of 17 years, the maximum penalty will be $20,000 or imprisonment for 2 years.

Accordingly, existing penalties for sexting and indecent filming offences will be doubled to match penalties for deepfake offences.

Deepfakes represent a frightening demonstration of the power of artificial intelligence.

These proposed laws are the first of their kind in Australia. The horse has already bolted but they provide an opportunity to reign it in.

We've seen how effective existing sexting laws have been already, particularly amongst minors.

This is our chance to do the same with sexualised deepfakes.  

Quotes attributable to the Hon. Connie Bonaros MLC

"The world is changing and we must adapt to it. AI has made humiliation at the click of a button possible with the advent of deepfake technology. We need to make sure our laws keep pace with emerging threats. 

"For all AI’s positive utility, there too exists the potential for misuse and criminal activity. This isn’t some eighth-grader using ChatGPT to help write an assignment. What we are talking about is a crime with motives to humiliate and denigrate.

"The conversation around the world about deepfakes is getting louder as it becomes more difficult than ever to determine what’s real and what isn’t. Changing our laws to reflect the alarming recent rise of deepfake content will not only heighten public awareness of a truly contemporary issue, it will educate young people on the matter too and send a clear message about what is and what is not okay. 

“Our ‘love story’ with all things technology has reached new and frightening heights. We have to be ‘fearless’ in how we respond. AI has highlighted ‘all too well’ just how much we need ‘taylor’ made laws to close the deepfake ‘blank space’.

"Make no mistake, AI is being used to create deepfake revenge porn and deeply disturbing, sexually explicit images of minors. And schools are becoming breeding grounds for its distribution. The degree to which it's happening ought to be enough to put the fear of life in parents across Australia.

"Overwhelmingly, it is women and young girls who are the targets here. And chances are its happening a lot more than we know because kids are reluctant to talk about it. These laws should serve as a template and precedent for other states to follow.