Deepfake technology is developing quickly in Australia. With artificial intelligence tools now widely available, a person’s face, body or voice can be digitally altered or generated to make it appear as though they said or did something that never happened.
While some deepfakes may be used for entertainment, parody, education or creative purposes, deepfake technology can also be used in harmful and criminal ways. This is especially serious where AI is used to create sexual images, videos or audio of a real person without their consent.
In Australia, deepfake laws now cover a range of criminal conduct, including:
- Creating AI-generated sexual images without consent
- Altering a person’s image to make it appear sexual
- Producing deepfake intimate audio
- Sharing deepfake sexual material online
- Threatening to create or distribute deepfake material
- Using deepfakes for blackmail, sextortion or harassment
- Creating or sharing sexualised deepfake material involving children
In New South Wales, deepfake intimate image and audio offences are dealt with under the Crimes Act 1900 (NSW). Commonwealth criminal laws may also apply where deepfake sexual material is sent using the internet, mobile phones, email, messaging apps or social media platforms.
This guide explains deepfake laws in Australia, with a focus on NSW criminal offences, penalties, consent, common examples, possible defences and what to do if police contact you.
Quick Answer: Are Deepfakes Illegal in Australia?
Deepfakes are not automatically illegal in Australia. However, deepfakes can be illegal if they involve non-consensual sexual, intimate, abusive, threatening or exploitative material.
A deepfake may become a criminal offence if it involves:
- Sexual or intimate content created without consent
- A real person who is identifiable or appears identifiable
- AI-generated nude or sexual images
- Digitally altered intimate images
- Fake sexual audio using a person’s voice
- Distribution of intimate material without consent
- Threats to share or create intimate deepfake material
- Child abuse material
- Blackmail, intimidation or harassment
The fact that the image, video or audio is “fake” does not mean it is legal. If the material appears to depict a real identifiable person in a sexual or intimate context, the criminal law may apply.
What Is a Deepfake?
A deepfake is digital content that has been created, altered or manipulated using technology, often artificial intelligence, to make it appear realistic.
Deepfakes can include:
- AI-generated images
- Face-swapped videos
- Fake nude images
- Digitally altered photos
- AI-generated sexual videos
- Synthetic voice recordings
- Fake audio that sounds like a real person
- Images or videos that appear to show a real person in a situation that never occurred
Deepfake technology may be used for legitimate purposes, such as:
- Film production
- Satire or parody
- Education
- Research
- News reporting
- Marketing with consent
- Creative or artistic work
However, the legal risk becomes serious when deepfake technology is used to humiliate, threaten, exploit, sexualise, impersonate or pressure another person without consent.
Why Deepfake Laws Matter in Australia
Deepfake abuse can cause serious harm. A person targeted by deepfake sexual material may experience reputational damage, emotional distress, employment consequences, relationship breakdowns and safety concerns.
Deepfake offences often arise in situations involving:
- Relationship breakdowns
- Domestic violence
- Sextortion
- Online harassment
- School bullying
- Workplace disputes
- Revenge behaviour
- Anonymous social media accounts
- AI “nudify” or image manipulation apps
- Group chats and online forums
The law recognises that digital abuse can cause real-world harm. Even if a deepfake is created online, shared privately or deleted quickly, it may still result in a criminal investigation.
NSW Deepfake Laws
In NSW, deepfake intimate material is dealt with under intimate image and audio offences in the Crimes Act 1900 (NSW).
The law can apply to material that is:
- Real
- Digitally altered
- AI-generated
- Partly artificial
- Entirely synthetic
- Designed to look or sound like a real identifiable person
A person may commit an offence if they create, alter, record, distribute or threaten to distribute intimate image or audio material without consent.
This means the law can apply to:
- AI-generated sexual images
- Fake nude images
- Deepfake pornography
- Face-swapped sexual videos
- AI-generated intimate audio
- Digitally altered private images
- Threats to create or share deepfake material
What Counts as Intimate Image or Audio Material?
Intimate material may include content that shows, appears to show or represents a person in a private or sexual context.
This may include:
- A person’s private parts
- A person’s breasts
- A person engaged in sexual activity
- A person in a sexual pose
- A person appearing nude or partially nude
- A person in circumstances that would reasonably be regarded as private
- Audio that appears to involve a person in a sexual or intimate context
- Material altered to make a person appear sexualised
For deepfake matters, the person does not necessarily need to have participated in the original content. The issue is whether the material appears to depict or represent a real identifiable person in an intimate or sexual way.
Is It Illegal to Create Deepfake Sexual Images in NSW?
Yes, it may be illegal to create deepfake sexual images in NSW if the material is created or altered without consent and appears to depict a real identifiable person.
Examples may include:
- Using AI to create a fake nude image of someone
- Editing a person’s face onto a sexual image
- Creating a sexualised image from a normal photo
- Using an app to “undress” a person’s image
- Generating sexual material that resembles a real person
- Creating fake sexual audio using a person’s voice
The prosecution may need to prove that:
- The accused created or altered the material
- The material was intimate image or audio material
- The person represented did not consent
- The accused knew there was no consent or was reckless about consent
- The person was identifiable or represented as a real person
The maximum penalty in NSW may include:
- Up to 3 years imprisonment
- A fine
- Or both imprisonment and a fine
Is It Illegal to Share Deepfake Sexual Material?
Yes. Sharing deepfake sexual material without consent can be a criminal offence in NSW and may also be an offence under Commonwealth law.
Distribution can include:
- Sending the material by text message
- Posting it on social media
- Uploading it to a website
- Sharing it in a group chat
- Forwarding it by email
- Sending it through a messaging app
- Showing it to another person
- Sharing a link to the material
- Reposting or re-uploading the content
A person does not need to make the material publicly available to be investigated. Even sending deepfake intimate material to one person may be enough to raise criminal issues.
Is It Illegal to Threaten to Share Deepfake Material?
Yes. In NSW, threatening to create, alter, record or distribute intimate image or audio material without consent may be a criminal offence.
This can apply even if:
- The material does not exist
- The accused never intended to follow through
- The threat was made privately
- The threat was made during an argument
- The message was later deleted
- The threat was conditional
Examples of threats may include:
- “I will make fake nude photos of you.”
- “I will send this to your employer.”
- “I will post this online if you leave me.”
- “Pay me or I will upload the video.”
- “I will send this to your family.”
- “I can make AI images of you and ruin your reputation.”
Threats involving deepfake material may also raise other criminal law issues, including:
- Blackmail
- Extortion
- Stalking or intimidation
- Domestic violence offences
- Using a carriage service to menace, harass or offend
Commonwealth Deepfake Laws Australia
Commonwealth criminal law may apply where deepfake sexual material is transmitted using a carriage service.
A carriage service includes:
- The internet
- Mobile phones
- Social media platforms
- Messaging apps
- Online forums
- File-sharing platforms
Under Commonwealth law, it can be an offence to use a carriage service to transmit sexual material of another person without consent.
This can apply to material that is:
- Real
- Digitally altered
- AI-generated
- Created using technology
- Edited to appear realistic
- Designed to depict a real person
The basic Commonwealth offence can carry a maximum penalty of up to 6 years imprisonment.
Aggravated offences may carry a maximum penalty of up to 7 years imprisonment, including in circumstances where the person responsible also created or altered the material.
NSW Law vs Commonwealth Law: What Is the Difference?
Both NSW and Commonwealth laws may apply to deepfake sexual material, but they operate differently.
NSW laws may apply where the conduct involves:
- Creating intimate image or audio material
- Altering intimate image or audio material
- Recording intimate material
- Distributing intimate material
- Threatening to create, alter, record or distribute intimate material
- Conduct occurring in New South Wales
Commonwealth laws may apply where the conduct involves:
- Using the internet
- Using a mobile phone
- Sending material through social media
- Uploading or transmitting material online
- Using email or messaging apps
- Transmitting sexual material without consent
In many cases, both NSW and Commonwealth offences may be considered. The final charge will depend on the facts, the evidence, the platform used and the alleged conduct.
What Does Consent Mean in Deepfake Cases?
Consent is one of the most important issues in deepfake criminal cases.
Consent must be freely and voluntarily given. A person does not consent simply because they:
- Were in a relationship with the accused
- Previously sent intimate material
- Consented to an image being taken
- Consented to one person seeing an image
- Shared a photo on social media
- Did not expressly object at the time
- Consented to a different use of the material
For example:
- Consent to take a private photo does not mean consent to upload it online.
- Consent to send an image to one person does not mean consent to share it in a group chat.
- Consent to a real intimate image does not mean consent to an AI-generated sexual version of that image.
- Consent during a relationship does not mean consent continues after separation.
A person may be unable to give valid consent if they are:
- Under the relevant legal age
- Unconscious
- Asleep
- Incapable of consenting
- Threatened
- Forced
- Intimidated
- Coerced
- Unlawfully detained
Common Deepfake Offence Examples
1. Deepfakes After a Relationship Breakdown
Deepfake allegations often arise after a relationship ends. A former partner may create or threaten to share sexualised AI images as a form of revenge, control or intimidation.
These cases may also involve:
- Apprehended Violence Orders
- Domestic violence allegations
- Stalking or intimidation
- Blackmail
- Harassment
- Family law issues
2. AI Nude Images at School
Schools across Australia are increasingly dealing with students using AI tools to create fake nude images of classmates.
These cases can involve:
- Police investigations
- School discipline
- Youth justice
- Cyberbullying
- Child abuse material concerns
- Mental health impacts
- Family complaints
- Social media platform reports
Where the person depicted is under 18, the matter may become extremely serious, even if the image was artificially generated.
3. Workplace or Reputation Attacks
Deepfake material may be used to damage a person’s career, business or reputation.
Examples include sending deepfake material to:
- An employer
- Co-workers
- Clients
- Business partners
- A professional body
- A university
- Family members
- The public through social media
These cases may involve both criminal and civil consequences.
4. Sextortion and Blackmail
Deepfake material may be used to demand money, sexual favours or other benefits.
Examples include:
- “Pay me or I will post this.”
- “Send more photos or I will send this to your family.”
- “Do what I say or I will upload this.”
- “I will make fake sexual images of you unless you pay.”
This conduct may lead to charges involving:
- Deepfake intimate material
- Blackmail
- Extortion
- Stalking
- Intimidation
- Using a carriage service to menace, harass or offend
5. Social Media and Group Chat Distribution
Many deepfake cases involve online platforms or private chats.
Relevant platforms may include:
- Snapchat
- TikTok
- X
- Discord
- Telegram
- Online forums
- Cloud storage links
A person may be investigated even if the material was sent only once, sent privately or later deleted.
Deepfakes Involving Children
Deepfakes involving children or people who appear to be under 18 are particularly serious.
Depending on the facts, police may consider offences involving:
- Child abuse material
- Possession of child abuse material
- Production of child abuse material
- Distribution of child abuse material
- Using a carriage service for child abuse material
- Grooming or exploitation-related offences
A person should never assume that “it was AI-generated” is a complete defence where the material appears to involve a child in a sexual context.
Consequences may include:
- Imprisonment
- A criminal conviction
- Registration obligations
- Employment restrictions
- Travel restrictions
- Immigration consequences
- Severe reputational harm
Penalties for Deepfake Offences in Australia
Penalties depend on the specific offence, the jurisdiction and the seriousness of the conduct.
Possible penalties and consequences may include:
- Imprisonment
- Criminal conviction
- Fines
- Court orders to remove or destroy material
- Apprehended Violence Order conditions
- Restrictions on contacting the alleged victim
- Restrictions on internet or device use
- Loss of employment
- Professional disciplinary action
- Immigration or visa consequences
- School or university disciplinary action
- Reputational damage
Factors that may affect sentence include:
- Whether the material was created, shared or only threatened
- Whether the victim was identifiable
- Whether the victim was under 18
- Whether the material was distributed widely
- Whether the conduct was repeated
- Whether the accused used anonymous accounts
- Whether blackmail or coercion was involved
- Whether the accused deleted or concealed evidence
- Whether the accused pleaded guilty
- Whether the accused has prior convictions
- Whether steps were taken to remove the material
Can You Go to Jail for Deepfake Offences?
Yes. A person can go to jail for deepfake-related offences in Australia.
In NSW, certain intimate image and audio offences can carry up to 3 years imprisonment.
Under Commonwealth law, transmitting sexual material without consent using a carriage service can carry up to 6 years imprisonment, or up to 7 years imprisonment for aggravated offences.
Whether a person actually goes to jail depends on the facts, including the seriousness of the conduct, the harm caused, the accused’s criminal history and the available defence or sentencing material.
Possible Defences to Deepfake Charges
Every case depends on its own facts. Possible defence issues may include the following.
Consent
The prosecution must prove that the relevant person did not consent and that the accused knew or was reckless about the lack of consent.
A defence may examine:
- What was said between the parties
- Whether consent was given
- Whether consent was limited
- Whether consent was withdrawn
- Whether the accused knew consent was absent
- Whether the accused was reckless about consent
Identification
The prosecution must prove that the accused was responsible for the alleged conduct.
This may involve technical evidence such as:
- Device data
- IP addresses
- Account logins
- Social media records
- Metadata
- Cloud storage records
- Message histories
- App activity
- Subscriber information
If the prosecution cannot prove who created, uploaded or distributed the material, the case may be challenged.
The Material Was Not Intimate Material
There may be a dispute about whether the content legally qualifies as intimate image or audio material.
Relevant questions may include:
- What does the material actually show?
- Is the person identifiable?
- Is the content sexual or intimate?
- Does the material fall within the statutory definition?
- Is the alleged person actually represented?
No Intention
Some offences require proof that the accused intentionally performed the relevant act.
The defence may consider whether the accused intentionally:
- Created the material
- Altered the material
- Recorded the material
- Distributed the material
- Threatened to distribute the material
Lawful or Reasonable Purpose
The law recognises limited exceptions in certain circumstances.
These may include conduct connected with:
- Law enforcement
- Legal proceedings
- Medical treatment
- Scientific work
- Education
- Public interest reporting
These exceptions are narrow and should not be relied on without legal advice.
Problems With Digital Evidence
Deepfake cases often rely heavily on digital evidence.
The defence may examine whether:
- Screenshots are complete
- Messages are taken out of context
- Metadata is reliable
- The account can be linked to the accused
- The evidence was lawfully obtained
- The material was altered
- The chain of custody is reliable
- The prosecution can prove the relevant intention
What Should You Do If Police Contact You About a Deepfake Allegation?
If police contact you about a deepfake allegation, you should get legal advice before answering questions.
You should not:
- Delete messages, files or accounts
- Contact the complainant
- Post about the allegation online
- Try to explain yourself in a police interview without advice
- Ask friends to contact the complainant
- Ignore police contact
- Breach bail or AVO conditions
- Assume the matter is minor because the material was fake
You should:
- Speak to a criminal defence lawyer immediately
- Preserve relevant evidence
- Avoid contacting the complainant
- Keep records of relevant communications
- Comply with bail conditions
- Comply with any Apprehended Violence Order
- Get legal advice before any police interview
Deleting evidence may make the situation worse and may lead to further legal issues.
What Should Victims of Deepfake Abuse Do?
If you believe deepfake intimate material has been created or shared without your consent, you should act quickly.
You may wish to:
- Preserve evidence
- Take screenshots
- Save URLs
- Record usernames and account handles
- Keep copies of messages or threats
- Avoid engaging with the person responsible
- Report the content to the platform
- Contact the eSafety Commissioner
- Report the matter to police
- Seek legal advice about protection orders
- Speak to a support service if you are distressed or unsafe
Fast action is important because online material can be copied, re-uploaded and distributed across multiple platforms.
Deepfake Laws Australia: Key Takeaways
The key points to remember are:
- Deepfakes are not always illegal, but sexual or intimate deepfakes without consent can be criminal.
- NSW law can apply to creating, altering, recording, distributing or threatening to distribute intimate image or audio material.
- Commonwealth law can apply where sexual material is transmitted using the internet, mobile phones or online platforms.
- AI-generated or digitally altered material can still be illegal.
- A person can be charged even if the material is fake.
- Threats to create or share deepfake material may also be criminal.
- Deepfakes involving children are especially serious.
- Penalties may include imprisonment, fines, criminal records and long-term consequences.
- Early legal advice is important if police contact you.
FAQs About Deepfake Laws in Australia
Are deepfakes illegal in Australia?
Deepfakes can be illegal in Australia if they involve non-consensual sexual or intimate material, threats, harassment, blackmail, child abuse material or unlawful online distribution.
Is it illegal to make AI nude images in Australia?
It may be illegal to create AI nude images of a real identifiable person without their consent, especially where the material is sexual or intimate.
Is it illegal to share a deepfake in a group chat?
Yes, sharing deepfake intimate material in a group chat may amount to distribution and can lead to criminal charges.
Can you be charged if the deepfake was never posted publicly?
Yes. A person may be charged even if the material was sent privately, shown to one person or threatened but not actually posted.
Can a threat to make a deepfake be a crime?
Yes. Threatening to create or share intimate deepfake material may be a criminal offence, even if the material does not exist.
Does consent to a real photo mean consent to a deepfake?
No. Consent to take or share a real photo does not automatically mean consent to create or distribute an AI-generated sexual version of that photo.
What if the deepfake was a joke?
Calling something a joke does not automatically prevent criminal liability. Police and courts will look at the content, context, consent, harm and intention.
What if the person deleted the deepfake?
Deleting the material does not necessarily prevent charges. It may also create further issues if evidence is destroyed after police become involved.
Can deepfake offences affect my visa?
Yes. A criminal conviction can create immigration and visa consequences, especially if a person receives a significant sentence or has other criminal history.
Should I speak to police without a lawyer?
You should get legal advice before participating in a police interview or giving an explanation about a deepfake allegation.
Conclusion
Deepfake laws in Australia are becoming increasingly important as AI technology becomes easier to access. In NSW, creating, altering, distributing or threatening to distribute intimate image or audio material without consent can result in serious criminal charges.
The fact that material is fake does not mean it is harmless or legal. If a deepfake appears to depict a real identifiable person in a sexual or intimate context, the criminal law may apply.
Deepfake allegations may involve:
- Intimate image offences
- AI-generated sexual material
- Commonwealth carriage service offences
- Blackmail or sextortion
- Stalking or intimidation
- Domestic violence issues
- Child abuse material offences
- Immigration and employment consequences
If you have been charged, contacted by police or are concerned about a deepfake allegation, early legal advice is essential.
KPT Legal can help you understand the allegations, assess the evidence and develop a clear defence strategy.
Contact KPT Legal today for confidential criminal law advice.
