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Ofcom’s new draft guidance for ‘a safer life online for women and girls’ as part of its OSA consultation process
Caroline Sheldon
It is continuously becoming harder to distinguish between real and fake information online. We have seen a significant increase in the use of artificial intelligence and deep learning software to generate audios, videos and images, and in particular sexually explicit images. With the enactment of the Online Safety Act, we have also seen a shift in the legislation governing this space, and it seems that we may see further changes in the near future.
Below are some frequently asked questions in relation to deepfakes and the current rules surrounding them.
What is a deepfake?
A deepfake is an image, video or sound that has been convincingly altered by digital technology to misrepresent someone as doing or saying something that they did not actually do or say.
Is it illegal to create a deepfake?
Many deepfakes are innocuous, but their legality depends on (1) what they depict and (2) the intention behind their creation.
If the deepfake is sexually explicit and depicts a child (i.e. someone under the age of 18) then, under the Criminal Justice Act 1988, it would be illegal to make, possess and/or distribute it to other people, as it would qualify as “indecent images”.
The law around indecent images covers not only indecent photographs, but also “pseudo-photographs”, and the courts have previously confirmed that deepfakes are encompassed by that term.
Whilst it is currently legal to create sexually explicit deepfakes of adults without their consent, there is legislation being considered by Parliament which would make them illegal.
Under the new Data (Use and Access) Bill, a person creating or requesting the creation of a purported intimate image of an adult without that adult’s consent and reasonable belief they were consenting would be committing an offence. Importantly, under this new legislation there is no requirement to show that the deepfakes were created with a specific intent, such as causing alarm, distress or humiliation.
Finally, even if these deepfakes are not sexually explicit, there should be consideration as to the purpose for their creation.
Fraud is defined under section 2 for the Fraud Act 2006 as dishonestly making a false representation intending to make a gain for themselves or cause loss to another, and if a deepfake was used for this purpose, then it could be considered fraudulent. One recent example is that scammers have increasingly been using deepfakes to assist in their communications thus making it harder to distinguish between the real and the fake ones - in these circumstances the creation of these deepfakes would be illegal.
Is it illegal to share a deepfake?
Similarly, it would depend on the content of the deepfake:
If the deepfake is an intimate image of a child, then it would be illegal to share it.
If the deepfake is an intimate image of an adult, and that adult has not given consent for the image to be shared and/or there was no reasonable belief they had consented, then it would also be illegal to share it.
Previously there needed to be an intention to cause alarm, distress and humiliation behind the sharing of such an image, but the law was changed by the Online Safety Act and now no specific intention is required. By way of example, this means that if someone shares a sexually explicit deepfake with you that they created of an adult, and you simply forward it on without that adult’s consent, then regardless of your intentions, you would also be committing a criminal offence.
Finally, as set out above, if you share a deepfake with a fraudulent intent, then this would also be illegal.
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