Deepfake ban — again
Predators who create sexually explicit images could face prosecution
The government has confirmed that it intends to make it an offence to create a purported sexually explicit image of an adult. But it’s not the first time Labour ministers have promised to tackle so-called “deepfakes” and some details remain unclear.
Similar proposals were announced by the Conservative government last April. To put them into effect, it introduced new clause 86 at the report stage of the criminal justice bill on 15 May. However, parliament was dissolved on 30 May ahead of the general election and the bill was lost.
Last month, the justice minister Lord Ponsonby of Shulbrede told parliament:
The technology to create realistic deepfake sexual images is readily available to turn harmless everyday images from a person’s social media profile into pornographic material which can then be shared with millions in milliseconds. This cannot continue unchecked…
That is why the government made a clear commitment in the manifesto to ban the creation of sexually explicit deepfake images of adults…
We will deliver our manifesto commitment in this session of parliament. However, we must act carefully so that any new measures work with existing law and, most importantly, effectively protect victims and bring offenders to justice. That is what our legislation later in this session will do.
Ponsonby made it clear that the government would not be supporting a private member’s bill introduced by Baroness Owen of Alderley Edge, who became the youngest member of the House of Lords when she was ennobled by Boris Johnson in 2023.
On A Lawyer Talks last month, I discussed Owen’s bill with Clare McGlynn KC (hon), a solicitor and professor of law at Durham University who specialises in the legal regulation of sexual violence, pornography and online abuse.
McGlynn broadly welcomed today’s announcement. But she told me the scope of the proposed offence was still not clear.
Owen’s bill would have created a comprehensive consent-based law. It said:
The Conservatives’ bill required proof of specific motives. It said a person (A) commits an offence if
(a) A intentionally creates a purported sexual image of another person (B),
(b) A does so with the intention of causing B alarm, distress or humiliation, and
(c) B does not consent to the creation of the purported sexual image.
or if
(a) A intentionally creates a purported sexual image of another person (B),
(b) A does so for the purpose of A or another person obtaining sexual gratification,
(c) B does not consent to the creation of the purported sexual image, and
(d) A does not reasonably believe that B consents.
The Ministry of Justice appears not to have yet decided what level of intent prosecutors would have to prove in order to secure a conviction under the proposed new offence.
McGlynn was also concerned about timing. Today’s announcement says that new offences will be included in a “crime and policing bill, which will be introduced when parliamentary time allows”. Further details, the ministry said, “will be announced in due course”.
McGlynn added:
Not all cases where someone asks another to create a sexually explicit deepfake for them will be covered by the existing law, particularly where the creator is in a jurisdiction where it is not an offence to either create or share a sexually explicit deepfake. It is common in this sort of abuse to ask others to make particular videos.
We also will not know the definition of “intimate image” until we see the details. The previous proposal had a far more limited definition.
It is already an offence under the Sexual Offences Act to share or threaten to share intimate images, including deepfakes.
The new deepfakes offence will apply only to images of adults because the current law criminalises similar images of people under 18.
Intimate images
The government also intends to change the law on the taking of intimate images without consent and the installation of equipment with intent to do so.
There is currently an offence of voyeurism under the Sexual Offences Act 2003 and a further offence was added by subsequent legislation. But these are limited and the government said they would be replaced by a range of new crimes:
Taking or recording an intimate photograph or film without consent or reasonable belief in it.
Taking or recording an intimate photograph or film without consent and with intent to cause alarm, distress, or humiliation.
Taking or recording an intimate photograph or film without consent or reasonable belief in it, and for the purpose of the sexual gratification of oneself or another.
Installing, adapting, preparing or maintaining equipment to enable a person to commit one of these offences.
These crimes would be punished with up to two years’ imprisonment but no penalty was announced for the new deepfake offence.
Happy New Year to you, Joshua.
While technically correct to say that it was a Conservative Bill and a Labour Bill, it is not really a party issue. The previous and current attempts are based on the Law Commission's Report on Intimate Images. For reasons known only to that government, some proposals were brought forward in the Online Safety Act 2023, but others were left out. They would go into the Criminal Justice Bill, but it ran out of time when the General Election was called.
The proposals brought forward by this government will be the same ones, and are included in the LC report. Trying desperately to be not British and ignore modesty, both Clare McGlynn and I were quite heavily involved in the LC process. We both thought that a consent-based approach would be preferable, but the LC wanted an intent-based approach. Hence, Lady Owen's Bill, which Clare has helped her with, is consent-based, but unsurprisingly, the MoJ will revert back to the LC recommendations for their Bill. It is for that reason, the Bill will not be supported (and it would require Parliamentary time when, for example, the government is likely to require Parliamentary time to be given to the Assisted Dying Bill).
In terms of the wider intimate image offences you note, this is correcting an absurd anomaly. As noted above, some of the LC recommendations were carried forward in the OSA 2023 but not others. This created a position where the law on disclosing intimate images was altered but not the creation/taking, and so we have the absurd situation where there are some forms of intimate images that are illegal to distribute but not to take in the first instance. It can only be hoped that the CJ BIll is brought forward relatively quickly to close that particular lacuna. It demonstrates one of the unfortunate side-effects of repealing the Fixed Term Parliament Act. When the duration of Parliament was known, Parliamentary business could be scheduled accordingly and major pieces of legislation would not be lost. Of course, the counter-argument is that reverting back to the whims of the PM makes guessing and journalism more fun!