Deepfake Pornography : Where the law stands in NSW

30 March 2025 in Criminal Law | 5 min read | skip to FAQs

Deepfake pornography has become an increasingly prominent and public issue in recent years, with several high profile cases resulting in judgements in both state and federal courts. In response, parliament has attempted to implement legislation to address offences related to deepfake pornography, clarifying what was previously considered a legal grey area.

Definition of Deepfake Pornography

Deepfake pornography refers to the creation and distribution of pornographic material that has been digitally transformed using artificial intelligence or other computer software. Most of these images depict real individuals whose image has been superimposed into a pornographic image or video creating the false impression that the individual has engaged in sexual acts that they never participated in. These fake images or videos are then published on the internet.

The increase in the capability of artificial intelligence (AI) has made it easily accessible for individuals to create highly realistic deepfake images and videos. This has subsequently created serious legal and ethical concerns. Deepfake pornography is usually used to target women and can cause significant psychological distress, reputational harm and professional consequences for its victims.

Relevant NSW and Federal Laws

New South Wales and Australia have several laws in place in an attempt to combat deepfake pornography being shared and distributed. Some legislation targets the sharing of intimate images generally, while other legislation focuses on the increase of deepfake images being shared in the community. This enables deepfake pornographic images to be treated in a similar manner to actual pornographic images and prohibit the unauthorised distribution of deepfake pornographic images.

Examples of legislation in place to act against the distribution of intimate images and deepfake pornography include:

1. The Online Safety Act 2021 (Cth) provides general protection against deepfake pornography. Under Section 75 of the Act, it is an offence to post or share intimate images of a person without their consent. Penalties include civil penalties and injunctions imposed by the Federal Court.  The Online Safety Act 2021 (Cth) is enforced by the eSafety Commissioner.
2. Section 174.17(1) of the Criminal Code Act 1995 (Cth) means it is an offence to use a carriage service (such as the internet) to menace, harass or cause offence. The penalty for this offence is up to three years imprisonment. Due to its broad scope, police often rely on this offence as a ‘catch all’ offence to prosecute various forms of online misconduct, including the distribution of deepfake pornography.
3. The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 was recently introduced as legislative bodies recognised the inadequacy of existing laws. This legislation was passed by the Australian Parliament to directly criminalise the sharing and creation of non-consensual deepfake pornography. Interestingly the legislation also applies where the image has not been modified. This law provides significant penalties for any individual for sharing and creating deepfake pornography, including:

1. Up to six years imprisonment for sharing non-consensual deepfake sexually explicit material; or
2. Up to seven years imprisonment for creating and sharing deepfake pornography without consent (aggravated offence).

NSW State laws also target image-based abuse, which is often applied to deepfake pornography cases, for example:

1. Section 91P of the Crimes Act 1900 (NSW) legislates that it is a criminal offence to intentionally record or distribute an intimate image of a person without their consent. The maximum penalty for this offence is three years imprisonment and fines of up to 100 penalty units.
2. Section 91Q of the Crimes Act 1900 (NSW) legislates that it is an offence to threaten to distribute intimate images without consent and carries the same penalties as section 91P.

NSW state laws provide a general layer of protection, however, they were not originally designed or implemented with deepfake technology in mind. The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 helps to address this by specifically focusing on AI generated explicit content.

Prosecuting Deepfake Pornography

Despite parliamentary efforts through the introduction of new laws, and the protection of existing laws, several challenges remain in prosecuting offenders in relation to deepfake pornography. The issues that hinder prosecution include:

1. Many offenders use VPN’s or other methods to mask their identities, making it difficult to trace them;
2. If the creator or distributor of the offending material is not located in Australia, thus enforcing local laws becomes highly complex; and
3. A percentage of victims can feel ashamed that this is occurring and fear that reporting the behaviour will bring further exposure to the matter, or that authorities will not take the issue seriously.

Case Studies of Deepfake pornography

eSafety Commissioner v Rodondo (2023)

One of Australia’s most prominent legal actions against deepfake pornography involved an individual named Anthony Rodondo, who was sued by the eSafety Commissioner for publishing deepfake pornographic material of multiple women online. The matter began with the eSafety Commissioner issuing a removal notice, ordering Rodondo to remove the images and delete the intimate material from his website pursuant to the Online Safety Act 2021 (Cth). Rodondo refused to comply with the orders, leading to Federal Court proceedings under the Online Safety Act 2021 (Cth). The court ordered him to cease all activity related to deepfake pornography, but Rodondo ignored the ruling, and continued posting images. Rodondo was eventually convicted of contempt of Court and fined $15,000.00, and was also charged with several criminal offences, including five sequences of obscene publications and exhibitions, one sequence of obscene publication and exhibition of a child under 16 years

Hannah Grundy Case (2024)

Another public case relating to deepfake pornography involved Hannah Grundy, a high school teacher from NSW. This matter began when several manipulated and deepfake images of her appeared on multiple adult websites without her consent. Hannah Grundy discovered these images online which led her to file a complaint with the eSafety Commissioner. An investigation was started shortly after, and removal notices were sent to the host websites. The investigation led police to trace the offender to a former colleague, who had used AI software to generate the images and distribute them anonymously.

The offender was charged under the legislative amendments to the Criminal Code Act 1995 (Cth) introduced by the Criminal Code Act Amendment (Deepfake Sexual Material) Bill 2024, making this case one of the first to utilise the new legislation. His Honour Judge Culver from the Downing Centre District Court sentenced the offender to nine years imprisonment, with a non-parole period of 5.5 years.

How can BSM Sydney Lawyers assist you?

If you have been the victim of deepfake pornography, BSM lawyers Sydney can assist you in seeking legal remedies. Our expert criminal lawyers can assist in commencing proceedings against those responsible, apply for removal notices through the eSafety Commissioner to take down harmful content and pursue criminal charges or civil claims for compensation.

If you have been charged with offences related to deepfake pornography, we can provide expert legal representation. The criminal legal team at Brander Smith McKnight Sydney Lawyers appear at all Criminal Courts in NSW and are very experienced with deepfake pornography offences. Contact us now and we will strongly advocate for you in the legal system, represent you in court and protect your rights.

BSM Sydney criminal lawyers provide a free no obligation 20-minute consult to discuss your legal concerns and formulate a plan for you.

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