The Offence of Producing or Distributing Deepfake Porn Without Consent in NSW

The law is often playing catch-up when it comes to regulating emerging technologies, and taking action against their misuse. And according to Australian law-makers, the nefarious use of deepfake porn is an example of this.

New legislation

Following the lead of the Federal government – which passed legislation on 21 August 2024 that criminalises the transmission of artificially generated sexual material of an adult by way of a carriage service without consent – NSW Shadow Minister for Women, Felicity Wilson, introduced the Crimes Amendment (Deepfake Sexual Material) Bill to the New South Wales Parliament on 8 August 2025.

The Bill has now been passed by both Houses of Parliament, amending Division 15C of the Crimes Act 1900 (NSW)(‘the Act’), which contains offences relating to the filming and distributing adult intimate images without consent, to encompass the production or distribution of sexually explicit deepfake material.

What is deepfake material?

Deepfake material is that which is artificially generated to depict, or represented as being derived from, a real person, when it does not in fact depict or derive from that person.

The process is increasingly being used to generate fake images, film, audio and text which appears to depict or derive from a real person, often but not always a public figure, but is in fact done for satirical or even nefarious purposes, including the dissemination of misinformation or disinformation in the political context, to otherwise a narrative, or even to embarrass or exploit the person.

It was reported as far back as March 2024 that, at that time, more than 4,000 celebrities had been the victims of deepfake pornography published on the internet, including famous actors, musicians, social media influencers and politicians.

Rationale for the amendments

The objective of the amendments is to rectify deficiencies in the law identified by research analyst Tom Gotsis in his report titled Sexually explicit deepfakes and the criminal law in NSW, published by the Parliamentary Research Service in April 2025.

The report makes three key observations:

1. The non-consensual creation of sexually explicit deepfakes of adults is not prohibited in New South Wales,
2. The use of sexually explicit deepfakes to threaten, blackmail or extort someone in person may not be prohibited, and
3. Showing a sexually explicit deepfake to another person may not be prohibited.

Mr Gotsis finds that gaps are not covered by the Commonwealth offences as they “apply only when the internet has been used to transmit sexually explicit material” (the internet being a form of ‘carriage service’).

In her Second Reading Speech, Minister Wilson speaks of the “profound and far-reaching consequences for women who are targeted by sexually explicit deepfake” and the necessity of urgently closing existing gaps “to ensure that the protections for victimsurvivors—and the penalties for perpetrators—for genuine intimate images will now also cover images, audio or text that have been generated or altered.”

The changes

The amending legislation intends to address the situation by making several changes to Division 15C of the Crimes Act 1900 (NSW).

Heading of Division

The heading of the Division 15C is changed from ‘Recording and distributing intimate images’ to ‘Producing and distributing intimate material’.

New definitions

A number of changes are made to definitions contained in section 91N(1) of the Act, with a view to encompassing sexually explicit deepfake material.

The definition of ‘image’ is broadened to cover:

“a still or moving image, whether or not altered, that includes or appears to include all or part of a person, and includes an image that has been digitally created by – (a) generating the image, or (b) altering or manipulating the image or another image.”

The definition of ‘intimate image’ is repealed and replaced with the ‘intimate material’, which covers:

• An intimate image,
• Sexually explicit deepfake audio, or
• Sexually explicit deepfake text.

Sexually explicit deepfake audio is that which:

• Contains material explicitly representing or describing conduct of a sexual nature, 
• Creates or alters sound as if the material were actually spoken by a person who did not speak the material, and
• A reasonable person would consider sounds, or was intended to sound, as if it were actually spoken by the person.

Sexually explicit deepfake text is written material which:

• Represents or describes conduct of a sexual nature, 
• Has been created or altered to read as if it represents or describes conduct of a sexual nature were actually written by a person who did not in fact write it, and 
• A reasonable person would consider reads, or was intended to read, as if it were actually written by the person.

The definition of ‘produce’ is also expanded to cover recording, taking, capturing or making material by any means, including by digitally generating, altering or manipulating it.

The offences

The offences contained in Division 15C of the Crimes Act 1900 (NSW) are each amended to make clear they encompass sexually explicit deepfake material.

These offences are:

The maximum penalty for each of these offences is 3 years in prison.

Other changes

Other parts of Division 15C are amended to ensure deepfake porn is captured by inserting the terminology contained in the new definitions, including section 91S which criminalises the contravention of an image rectification order, which is a court order directing a person to make reasonable steps to remove, retract, recover, delete or destroy an intimate image (now defined as intimate material).