New legislation to make creating sexually explicit ‘deepfake’ images a criminal offence

The government has this week announced new offences of taking an intimate image without consent and installing equipment to enable these offences as part of the Government’s Plan for Change and manifesto commitment to protect women and girls. Those who create sexually explicit ‘deepfakes’ could face prosecution as the government will introduce a new offence meaning perpetrators could be charged for both creating and sharing deepfake images – It is currently illegal to share sexually explicit deepfake content, but not create the content itself. 

The Government will also create new offences for the taking of intimate images without consent and the installation of equipment with intent to commit these offences. While it is already an offence to share – or threaten to share – an intimate image without consent, it is only an offence currently to take an image without consent in certain circumstances, such as upskirting. 

Under the new offences, anyone who takes an intimate image without consent faces up to two years’ custody. Those who install equipment so that they, or someone else, can take intimate images without consent also face a custodial sentence of up to two years. 

The new offences will be included in the Government’s Crime and Policing Bill, delivering on the Government’s manifesto commitment to ban the creation of sexually explicit deepfakes as well as recommendations from the Law Commission relating to intimate images. 

What is a ‘deepfake’ image? 

A deepfake is a synthetic media—typically video, audio, or images—created using artificial intelligence and machine learning techniques, especially deep learning. These techniques allow for the realistic alteration or creation of content that appears authentic.  

While they can be used for legitimate purposes such as entertainment, satire, or in the film industry, they can often be associated with malicious activities compromising personal privacy. 

Detecting deepfakes is challenging because the technology continuously evolves, making the fabrications increasingly convincing. The rise of deepfakes raises significant ethical and legal concerns, including issues related to consent, defamation, and the potential to deceive and manipulate public opinion. 

Victims Minister Alex Davies-Jones said: 

“It is unacceptable that one in three women have been victims of online abuse. This demeaning and disgusting form of chauvinism must not become normalised, and as part of our Plan for Change we are bearing down on violence against women – whatever form it takes.”

Baroness Jones, Technology Minister, said:   

“The rise of intimate image abuse is a horrifying trend that exploits victims and perpetuates a toxic online culture. These acts are not just cowardly, they are deeply damaging, particularly for women and girls who are disproportionately targeted. 

With these new measures, we’re sending an unequivocal message: creating or sharing these vile images is not only unacceptable but criminal. Tech companies need to step up too – platforms hosting this content will face tougher scrutiny and significant penalties.”

The new offences follow the Government’s action in September 2024 to add sharing intimate image offences as priority offences under the Online Safety Act. This put the onus on platforms to find and remove this type of content – or face enforcement action from Ofcom. 

What is the current law in relation to sharing sexually explicit deep fake content? 

It is currently illegal to share sexually explicit deep fake content, but not create the content itself. 

The current law 

Sharing Intimate Photographs or Film – Section 66B (1) – (3) Sexual Offences Act 2003 

The offences of sharing intimate photographs/film are committed when an offender [A] intentionally shares a photo or film which shows, or appears to show, another person [B] in an intimate state, and:  

• section 66B (1) Sexual Offences Act 2003: B does not consent to the sharing of the photograph or film, and A does not reasonably believe that B consents; or  
• section 66B (2) Sexual Offences Act 2003: A does so with the intention of causing B alarm, distress or humiliation, and B does not consent to the sharing of the photograph or film; or  
• section 66B (3) Sexual Offences Act 2003: A does so for the purpose of A or another person obtaining sexual gratification, B does not consent to the sharing of the photograph or film, and A does not reasonably believe that B consents. 

References to a photograph or film are defined within the act to include deepfakes as follows: 

1. (a) an image, whether made or altered by computer graphics or in any other way, which appears to be a photograph or film, 
2. (b) a copy of a photograph, film or image within paragraph (a), and 
3. (c) data stored by any means which is capable of conversion into a photograph, film or image within paragraph (a). 

Further legislation in relation to deep fakes 

On the 16th of April 2024 the Ministry of Justice announced a new criminal offence was to be introduced so that individuals who create sexually explicit deepfakes could be prosecuted. The new legislation was intended to criminalise the creation of deepfakes. It would also allow those individuals who create deepfakes and then share such material to be charged with two separate offences and potentially face an increased sentence.  

The legislation was to be created under an amendment to the Criminal Justice Bill and was due to progress through parliament. However, following the calling of the General Election, parliament was ‘dissolved’ on the 24th of May 2024 and accordingly the legislation did not currently progress further.  

The new intimate photo and deepfake legislation 

The Government will repeal two existing voyeurism offences that relate to the recording of a person doing a private act and recording an image beneath a person’s clothing. 

This will be replaced with a range of new offences: 

• 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 

New offences will also be introduced that criminalise those who install or adapt, prepare or maintain equipment, and do so with the intent of enabling themselves or another to commit taking an intimate image without consent 

Deepfakes and under 18s 

Whilst the creation of sexually explicit deepfake material in relation to adults is not currently a criminal offence, the situation is different in respect of those aged under 18.  Possessing, making and distributing indecent images of children is a criminal offence in the UK irrespective of whether it is a real image or a pseudo-image (an image created by AI, computer graphics or any other technology which otherwise appears to be a photograph). 

The main legislation used to prosecute indecent images cases is the Protection of Children Act 1978.   

Section 1(1) (a) of the Protection of Children Act 1978 includes “to take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child”.   It seems clear that using AI to generate child sexual abuse imagery could fall within the definition of ‘making’. 

However, naked pictures of children themselves are not necessarily indecent. The lowest level of indecent images are known as Category C images and are defined as ‘images of erotic posing’.  There may be cases where an image is not necessarily erotic or posing but could still be classed as indecent, for example, a naked picture of a child not engaged in sexual activity but with a focus on the child’s genitals.’ 

How can Olliers help if you are accused of intimate photograph offences? 

Olliers has significant expertise in representing those investigated or prosecuted for intimate photograph offences. At the pre-charge investigation stage, we can engage with the police on your behalf. We can prepare pre-charge representations in relation to either mitigation if the offence is admitted or setting out your case if the offence is denied seeking to prevent the case from proceeding to court. 

If you are charged with intimate photograph offences, we can represent you in court, with one of our specialist solicitors presenting your case. We will advise you on the strength of the evidence and the sentencing guidelines in the context of your case. If you are entering a guilty plea, we will do our very best to ensure you receive the lowest sentence possible. If you are entering a not guilty plea, we will put forward your defence to the court, ensuring you have the best chance possible of the desired outcome.

Need a solicitor for deep fake or intimate photograph allegations? 

Contact the Olliers specialist team to arrange advice and representation in relation to intimate photograph allegations by completing the form below, telephoning 0161 8341515 or by emailing info@olliers.com.