Insufficient protection for victims of 'deepfake' media

The Online Safety Act 2023 amended the Sexual Offences Act 2003 (SOA 2003) by introducing a new offence of sharing or threatening to share an intimate photograph or film without consent and other more serious offences. Some will be disappointed that internet service providers cannot be made criminally liable for the new offences which are a welcome step in the right direction to protect victims of online abuse although they may not go far enough to protect victims of so-called ‘deepfake’ images and videos; especially children.

‘Deepfakes’

The creation of fake pornographic images and videos (also known as ‘deepfakes’) can easily be used to target victims of domestic abuse and children.For instance, Alexandria Ocasio-Cortez, the youngest woman to serve in the United States Congress, and Taylor Swift are two notable victims of this deepfake media. While deepfake images of those in the public eye have made headline news, anyone can be a victim of this form of online abuse.

The first new offence is to be found in section 66B(1) of the SOA 2003. It is committed if a person shares or threatens to share intimate photographs or films without consent. This includes sharing photographs and films that ‘appear to show’ the victim in an intimate state.

A person shares something if the person, ‘by any means, gives or shows it to another person or makes it available to another person’ (s.66D(2) SOA 2003). The explanatory notes to the legislation say that the new offences include images that are made or altered by computer graphics (or in any other way) if they appear to be a photograph or film.

It is therefore envisaged that the offences cover genuine photographs or films that have been altered in some way, and those that have been wholly manufactured – so called ‘deepfake’ images. Only time will tell whether the new legislation is sufficient to afford real protection for the victims of ‘deepfake’ media. Much will depend on the resources available to investigate this new form of crime which can be committed by a person located anywhere in the world.

Section 66B(1) of the Sexual Offences Act 2003

The first new offence is summary only. It goes further than section 33 of the Criminal Justice and Courts Act 2015 (commonly known as the ‘revenge porn’ offence). The ‘revenge porn’ offence has been repealed following section 190 of the Online Safety Act 2023 so it can no longer be used to protect victims unless the conduct occurred between 13 April 2015 and 30 January 2024. The maximum sentence for the new offence is currently six months’ imprisonment.

A person ('A') can be found guilty of the new offence if, without reasonable excuse, 'A' intentionally shares a photograph or film that shows or appears to show another person ('B') in an intimate state, where 'B' does not consent to the sharing of the photograph or film, and 'A' does not reasonably believe that 'B' consents.

The Sexual Offences Act 2003 has been further amended to create three more serious offences related to the sharing of such images or videos: (i) under section 66B(2), sharing a photograph or film without consent and with the intention of causing 'B' alarm, distress, or humiliation, which extends beyond the existing revenge porn offence; (ii) under section 66B(3), sharing the image or video for the purpose of obtaining sexual gratification; and (iii) under section 66B(4), threatening to share a photograph or film with the intent to cause fear that the threat will be carried out.

The maximum sentence for these new offences is two years’ imprisonment. If a photograph or film is shared without consent for the purpose of sexual gratification an offender may also be subject to notification requirements.

Exemptions to the offence under sections 66B (1), (2), and (3) apply in the following circumstances: If the photograph or film was taken in a public place where 'B' had no reasonable expectation of privacy, and 'A' reasonably believes that 'B' was in the intimate state voluntarily, or if the photograph or film had previously been publicly shared, or 'A' reasonably believes that it had been, and 'B' had consented, or 'A' reasonably believes that 'B' had consented, to the previous sharing.

Areas for improvement

Arguably the most serious criticism of the new offence under section 66B SOA 2003 is that it does not focus on the makers of deepfake videos or film but rather the sharers of the content (although not the internet service providers). A specific offence targeting the production of deepfake media should be created to address this issue. Categorisation is needed to differentiate between makers of the videos and those who distribute it. The sentences should be different for each offence reflecting the culpability of the defendant. This could be similar to the categories used in indecent image offences. This would arguably assist with deterring online abuse in the first place.

In relation to sharing the photograph or film with the intention of causing B alarm, distress or humiliation, there is no objective standard; it is the perpetrator’s intention that is taken into account and not the effect of the behaviour on the victim. Focussing on the defendant’s intention is also counter to other offences addressing domestic abuse and offences against women and girls. For example, the offence of controlling or coercive behaviour in an intimate or family relationship under section 76 of the Serious Crime Act 2015 focusses on the effect of the behaviour on the complainant.

Focusing on a defendant may lead to defendants claiming that they did not have the requisite intention when sharing the photos or film, which may make prosecutions difficult to mount. The Metropolitan Police published statistics relating to individuals charged with the previous ‘revenge porn’ offence revealing that there were only three charges of the offence in 2022. The low prosecution rates may be due to the requirement of establishing that the suspect had the intention to cause distress to the complainant. However, in section 66B SOA 2003 the terms ‘alarm’ and ‘harassment’ are wider than distress so it may be that more prosecutions will follow than those charged with the revenge porn offence.

It would have been better if the new offences had included an element more focussed on the impact of the conduct concerned by requiring proof that ‘the behaviour caused ‘B’ alarm, distress or humiliation and that ‘A’ knew, or ought to have known, that sharing the photograph or film would cause ‘B’ alarm, distress or humiliation’. The offence would then focus on the effect on the victim, rather than the intention of the perpetrator. It is also not clear what would amount to a reasonable excuse for sharing an image, which is a defence to the new offence.

Ongoing dangers

The exemptions above are also potentially discriminatory towards those who choose to share intimate content online. If ‘B’ shares an intimate image online, for example, on a website similar to ‘Onlyfans’, it is possible that someone may re-share the video or photograph that ‘B’ has posted with another person, including ‘B’s’ friends, family or colleagues, without being criminally liable if ‘A’ can successfully argue that they reasonably believed that ‘B’ had consented to the previous sharing. This may be the case even if they intended to cause ‘B’ alarm, distress or humiliation.

Some may be of the view that individuals who share intimate content via an online platform run the risk of their photos or films being shared without their consent and therefore they should not be protected by the criminal law. Arguably though, the exemption constrains an individual’s choice regarding the audience that they share their own content with, and raises difficult issues around the definition of ‘consent’ and ‘voluntarily’. For the purposes of these offences consent means ‘if he agrees by choice, and has the freedom and capacity to make that choice’ (s.74 SOA 2003).

Has someone consented or made a choice with freedom if they were heavily influenced, were coerced, or were in an abusive relationship during the period when they were intimate in public or featured in a previously shared image online? It is possible that uploading photographs and film to websites similar to Onlyfans may not be considered a previous ‘sharing’ of the photograph or film because people often sign up or pay for the content, content creators are unlikely to find their ‘close circle’ on the website, and they may be able to choose who views their content. Admittedly this is a thorny issue as a blanket ban on sharing intimate media may raise issues concerning the right to freedom of expression as protected by Article 10 ECHR.

Finally, the offence under section 66B SOA 2003 does not differentiate between sharing a photograph or film which shows, or appears to show, a child in an intimate state and those that appear to show adults. Arguably this problem can be avoided by charging offences of this nature under indecent images provisions instead, where the starting point for the sentences are much higher than under section 66B SOA 2003. This will avoid watering down sentences for online child abusers.