The Digital Double: Navigating NSW’s New ‘Deepfake’ and Image-Based Abuse Laws

Imagine waking up to find a video of yourself circulating on the internet a video so realistic that your friends and family believe it’s you, yet you know for a fact that it never happened. This is no longer a scenario from a science-fiction film; it is the reality of Artificial Intelligence (AI) in 2026. While AI has revolutionised industries from medicine to music, it has also provided a new toolkit for a devastating form of harassment: the “deepfake.”

In New South Wales, the law has recently undergone a major transformation to protect citizens from this digital frontier. With the inclusion into the Crimes Act 1900 (NSW) of the Recording and distributing intimate image or audio material – Part 3, Division 15C, the NSW Government has sent a clear message: technology is not a shield for abuse.

But what exactly do these laws mean for you? How does the court distinguish between a “real” photo and an AI-generated one? And most importantly, what are the consequences if the law is broken?

For further information into Deepfake Pornography, see our article – Deepfake Pornography and Criminal Law: When AI Crosses the Line in NSW.

What is Image-Based Abuse?

Before we dive into the new “deepfake” rules, we must understand the foundation. For years, the legal system and the public used the term “revenge porn“. However, legal advocates and the NSW Government have transitioned to the term Image-Based Abuse (IBA).

The reason for this shift is simple: “revenge” is often not the motive, and “porn” implies a professional or consensual industry. In reality, IBA is a form of digital violence used to humiliate, control, and silence victims. It traditionally involves the non-consensual recording or distribution of intimate, nude, or sexual images. Under the Crimes Act 1900 (NSW), this has long been a criminal offence. However, until very recently, there was a glaring “gap” in the law that AI was beginning to exploit.

The “Deepfake Gap”: Why the Law Had to Change

Prior to 2024, NSW laws were primarily designed to catch people sharing actual photos or videos. While the law covered images that were “digitally altered” (such as “Photoshopping” someone’s face onto another body), it did not clearly address “fully synthetic” material.

As Attorney General Michael Daley noted in his second reading speech when passing the bill, technology had moved so fast that perpetrators could now create entirely lifelike sexual images of a person using AI without using a single “real” photo of the victim’s body. These are not “altered” images; they are created from scratch by a computer to look like a real person.

The Attorney General highlighted that victims of these deepfakes suffer the same, if not more, trauma and psychological distress as victims of traditional image-based abuse. The internet doesn’t distinguish between what is “real” and what is “synthetic“; once an image is out there, the damage to a person’s reputation can be permanent.

The New Offence: Section 91P

To close this gap, the NSW Parliament introduced a landmark change to the Crimes Act 1900. The most significant addition is Section 91P, which specifically targets the production of deepfake sexual material.

1. Criminalising the “Act of Creation“

Previously, the law focused heavily on the distribution (sharing) of images. Now, it is a crime to simply produce an intimate image of another person without their consent if that image is a deepfake.

What does this mean in plain English? If a person uses an AI generator to create a sexual image of another person without their consent, they have committed a crime. It does not matter if they never show it to another living soul. The act of creating such material is now a stand-alone offence.

2. The “Identifiable Person” Test

A common question is: “How does the law know it’s of an existing person?” The new law uses an “identifiable person” test. If a reasonable person would look at the deepfake and believe it depicts a specific, real person, then the law applies.

3. Voice Cloning: The New Frontier of Audio

Perhaps the most “modern” aspect of the 2024/2025 reforms is the inclusion of intimate audio. We are seeing a rise in “voice cloning“, where AI mimics a person’s voice with terrifying accuracy. This audio can be used for “sextortion“, blackmailing someone by threatening to release a recording of them “confessing” to sexual acts or engaging in sexual dialogue. The new laws treat synthetic intimate audio with the same severity as visual images.

For further information into existing laws criminalising online harassment, see our article What Counts as Online Harassment? Social Media Offences in NSW.

By the Numbers: A Growing Epidemic

Why was the NSW Government so urgent in passing these laws? The statistics provided by high-authority bodies like the eSafety Commissioner tell a worrying story. Reports of image-based abuse have skyrocketed over the last five years.

The Attorney General’s speech explicitly mentioned that these laws were a direct response to the “weaponisation of AI” against women and girls in particular.

What are the Penalties?

The NSW courts take a dim view of those who use technology to violate the privacy of others. If someone is charged and convicted of producing or distributing deepfake sexual material, they face:

• Imprisonment: Up to 3 years for recording an intimate image or audio material without consent.
• The same maximum penalty also applies for altering an image or audio or using a simulated person to create an intimate image or audio material.
• Fines: Significant financial penalties reaching over $11,000.
• Takedown Orders: The court can now force offenders to take “all reasonable steps” to remove the material from the internet.

If you have been charged with an offence involving digital material, it is vital to seek expert advice immediately.

The Role of Consent

Consent is the heart of image-based abuse law. In the context of deepfakes, consent is almost impossible to prove because, by definition, the person depicted did not participate in the creation of the material.

However, the law does provide certain protections. For example, the law is not intended to criminalise legitimate artistic expression or satire though the line between “satire” and “abuse” is extremely thin when sexual material is involved. If you are involved in a case where consent or the “nature of the image” is in dispute, you need a legal team that understands the nuances of the Crimes Act.

For further information regarding existing laws against distributing intimate images without consent, see our article – Distribute Intimate Images in NSW When Threats Alone Can Send You to Prison.

Let’s Discuss: Where Do We Go From Here?

If you or someone you know needs guidance navigating these complex new laws, our team is here to help. Whether you are seeking protection or defending a charge, expert legal representation is your best defence in the digital age.