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Podcast interview – The Briefing LiSTNR

The Hon Mark Dreyfus KC MP


Subject: Deepfakes Legislation

Why you could soon go to jail for sharing deepfake porn - The Briefing -

BENSION SIEBERT: Attorney-General Mark Dreyfus. Thanks so much for joining us on The Briefing.

ATTORNEY-GENERAL MARK DREYFUS: It's a pleasure to be with you Bension.

SIEBERT: Why does the Government care about deepfake pornography?

ATTORNEY-GENERAL: This is an insidious behaviour. It's something that produces a degrading and humiliating and dehumanising impact on victims who are largely women and girls. It perpetuates harmful gender stereotypes, and it is contributing to gender-based violence. It's something that is a real concern right across the community.

SIEBERT: How widespread is it in Australia?

ATTORNEY-GENERAL: It's impossible to say how widespread it is, but the complaints that we are hearing tell us that it is increasingly widespread. We've seen incidents of it in the United Kingdom in the United States and we know with the introduction of artificial intelligence, the widespread availability of artificial intelligence, that it is every day getting easier to produce this kind of deepfake sexually explicit material.

SIEBERT: So, you'll be introducing legislation into Parliament today that would make it a crime to share the fake pornography without consent. What about the people who make it and the AI companies that can enable it? What happens to them?

ATTORNEY-GENERAL: There's a limit on the Commonwealth's reach here. We can pass legislation that deals with use of telecommunications providers, which is why we are criminalising the sharing. We are also taking the opportunity to create an aggravated offence which will increase the penalty for someone who is also the creator of the deepfake sexually explicit material. And these are very serious penalties that we are going to provide. It's a maximum of six years for sharing and for the aggravated offence it will be seven years. That's if you have both created the material and shared it. But because the Commonwealth's jurisdiction is limited to the activity of sharing, we'll have to wait perhaps for states to catch up and criminalise the creation activity.

SIEBERT: Okay, so let's talk about enforcement. If an anonymous Twitter account shares a deepfake porn image, what hope does law enforcement have tracing the identity of the person who originally shared it?

ATTORNEY-GENERAL: This is a problem that law enforcement faces with everything in the digital world. People do hide behind fake identities, people do hide their accounts, but that does not mean that there are not technological means of tracing. We have been able to successfully prosecute for a range of other technology-based offences and the fact that it's difficult to find someone is not a reason for not legislating. There's a whole range of crimes that are often difficult to detect, difficult to prosecute, but that does not stop us from legislating to ban that activity and providing for serious criminal offences. You have to remember that there's also a value in the Parliament of Australia sending a message to the community that these activities are criminalised. Criminal law always serves that function of sending a message to the community, drawing lines to say this behaviour is unacceptable and it's so unacceptable that we are going to criminalise it and provide serious penalties for it. We hope that that message will also have a beneficial effect.

SIEBERT: Would you need the cooperation of the social platforms in order for these prosecutions to work? Obviously, Elon Musk hasn't been particularly cooperative with the Australian Government recently.

ATTORNEY-GENERAL: The cooperation from social media platforms is always of assistance. But don't forget that we have other means including warranted interventions that the Australian Federal Police can use to get at the relevant information that we need in order to make a prosecution stick. So, yes, as always, cooperation from the service providers, from the social media platforms, is desirable and makes investigation of crimes and prosecution easier. But we've also got some compulsive means available to us to find out the identity of people who are engaging in this, in the sharing of this dreadful material.

SIEBERT: You mentioned some instances in the UK and the US, obviously the most prominent one of those was the sharing of deepfake pornography images of Taylor Swift. They were shared some 47 million times earlier this year. If an image of an Australian celebrity for example, were even close to that viral, prosecuting millions of individuals isn't possible is it?

ATTORNEY-GENERAL: Prosecuting millions of individuals who would probably be not what the Australian Federal Police would engage in, but we would look for the originator of the images. Someone who has been directly involved in starting off the viral phenomenon that you mentioned that occurred in the case of Taylor Swift.

SIEBERT: We know that there is a serious problem in Australia and elsewhere about teenage boys in particular being drawn into misogynistic ideologies. Could we see teenagers prosecuted for the offence that you're creating and should we?

ATTORNEY-GENERAL: These offences apply specifically to people over 18. That's because they're already very detailed provisions in the Commonwealth criminal code that apply to child abuse material, including those that sort of material when it's generated by artificial intelligence. There's already a much more serious penalties for that kind of child abuse activity.

SIEBERT: Apologies .. . if the person sharing it is a teenager.

ATTORNEY-GENERAL: Then, potentially, they are able to be prosecuted. It's just that they will be treated as a child and we have different processes in the criminal law to deal with children when they are prosecuted.

SIEBERT: The legislation would make it illegal to share nonconsensual deepfake pornographic images with another person. There are, and will be, people who will be creating this, as a form of, I suppose, artwork or consensual pornography. How does the Government or prosecutors assess consent in that kind of scenario?

ATTORNEY-GENERAL: The offences are not intended to capture the sharing of legitimate adult pornography. This is about non-consensual sharing of deepfake sexualised images of another person. And not having consent is obviously going to be very easy to prove if the person whose image is being portrayed doesn't even know the originator of the images. If it's a celebrity, for example, who has no knowledge of it. The key to this is non-consensual.

SIEBERT: If someone finds and discovers that their image is being used in this way now, what can they do to protect themselves?

ATTORNEY-GENERAL: Certainly, they can make a complaint to the Australian Federal Police. Certainly, they should be attempting to make a complaint to the social media provider, the platform where the images have been shown. And it may be that there is some purpose in them also lodging a complaint with the eSafety Commissioner.

SIEBERT: Given the huge numbers involved here, the content that we're talking about, how will the government or police be able to keep up with this? Will it require some kind of new agency or arm of the police to prosecute it?

ATTORNEY-GENERAL: We don't envisage that. The Australian Federal Police is a well-resourced organisation and we're very much hoping that if there are some prosecution, some investigations and some prosecutions and some convictions recorded, that's going to send a very clear message to the Australian community that this kind of behaviour will not be tolerated. That it is a criminal offence. It is something that carries serious consequences.

SIEBERT: Thanks so much for joining us on The Briefing.

ATTORNEY-GENERAL: Thank you very much. Pleasure to be with you. Thank you for taking an interest.