Deepfake porn can be effectively punished. An amendment is in the pipeline

Seventeen-year-old girl victim of deepfake porn

The parents of a 17-year-old girl, let’s call her Jana, contacted the law firm Available Advocate. Jana’s high school classmates created fake photos and even videos of Jana naked and in intimate intercourse with the help of a “stripping app” and other artificial intelligence tools. All they needed to do was to use regular photos that Jana shared on her Instagram. The fake pictures and videos circulated around the classroom and the girl had a mental breakdown. The parents of the minor filed criminal charges against the perpetrators, also considering that some of them were already 18 years old.

Using artificial intelligence, you can create pornographic images of anyone. Czech law, however, does not provide much for such insidious behaviour and the police have not had many tools to deal with such situations. What has been important for their assessment so far has been mainly how the perpetrator has dealt with the photo – whether he threatened the victim with it, sent it to friends or, for example, posted it on the Internet where it was freely available for viewing.

The mere fact that someone had created such a photograph was generally assessed by the police as a misdemeanor against civil coexistence, which was the case with Miss Jana. With the help of a lawyer, the chances of properly punishing the perpetrator are then higher. Itis important not to be passive in the situation and to refer, for example, to the provisions of the Criminal Code on the violation of the rights of others, which, although they do not deal directly with the falsification of photographs, speak in general terms of the fact that the perpetrator of this offence causes serious harm to the rights of another person by either misleading someone or taking advantage of someone else’s mistake. If, for example, the offender posts fake photographs on the internet with the comment that the person depicted in the photographs normally undresses for money, then this may be a textbook case of such an act. Another provision that now applies to similar situations may be the offence of defamation.

A solution is also offered in civil law. Here, however, the onus is on the victim to take active action, to prove the harm suffered and to seek compensation. The whole situation is sensitive for many victims and they do not always have the will or the strength to take such action.

In our case, it was a specific situation where the act took place within the same classroom. This was very distressing for the girl herself, for whom the classroom and the school had hitherto been a safe environment. As the parents described to us, relationships changed considerably after this incident. Some classmates laughed at Jana, others felt sorry for her, but neither of these attitudes corresponded to the relationships that had prevailed in the classroom until then. However, from the point of view of the solution, the situation was actually favourable to us: the perpetrators were known to us and were also subject to the school rules and disciplinary procedures of the gymnasium. Thanks to the pre-charge notice, the perpetrators stopped making light of the situation, deleted all the photos, removed them from the class chats and apologised to the girl. Jana’s originally planned transfer to another school did not take place in the end, not least because two of the four perpetrators were expelled from the school. The other two also received additional school punishments. The school then responded by taking other steps, such as introducing educational programmes on internet safety. For the victim’s family, such a solution was sufficient, especially considering the age of the perpetrators and the fact that the whole incident did not go beyond the classroom.

The Criminal Code will address photo forgery

Thousands of women all over the world find themselves in a similar situation to the one experienced by Miss Jana today and every day. Deepfake pornographic photographs have not escaped famous singers or politicians. The problem can, of course, also affect men, but it is girls and women who are the typical victims.

Given the increase in these incidents, legislative action is needed. The Ministry of Justice is therefore proposing to introduce a new criminal offence, which could carry a maximum penalty of five years’ imprisonment. The new section is entitled ‘Abuse of identity for the production and distribution of pornography’. Anyone who produces or disseminates a pornographic work that depicts or otherwise exploits a person who has not consented to it will be punished by up to two years’ imprisonment, prohibition of activity or confiscation of property. If he or she publishes such material, for example on the internet, he or she may be imprisoned for six months to three years. If he does so as part of an organised group in several countries or if he seeks to obtain large-scale benefits for himself, he will be imprisoned for one to five years.

The new section will therefore penalise the production, distribution or publication of pornographic material without consent and without any prior knowledge of the person depicted. According to the explanatory memorandum, this is a highly socially harmful activity that needs to be addressed by means of criminal law.

This represents a major breakthrough in the possible punishment of such cases. In addition to the production of the photographs themselves, it will not be necessary to publish them, disseminate them on the internet or blackmail the victims in order to qualify such conduct as a criminal offence. The mere production or sending of the photo to the victim’s mobile phone will be sufficient.

The amendment to the Criminal Code is currently under comment. In the future, however, Czech law will have to respond to a much wider range of malpractices using artificial intelligence. There are already many known cases where many people have fallen for fake videos of famous celebrities and, for example, invested their money in fraudulent projects. There are also cases of falsification of evidence in court. Judges can comment and explain things in their judgments, using the existing sections on fraud and so on. However, there is no doubt that artificial intelligence will also pose a major challenge for legislators.