Bills

Summary Offences (Artificially Generated Content) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:26): Obtained leave and introduced a bill for an act to amend the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:27): I move:

That this bill be now read a second time.

I am pleased today to introduce the Summary Offences (Artificially Generated Content) Amendment Bill. The bill fulfils the government's commitment to introduce legislation to ban the creation and distribution of sexually explicit deep fakes, including where the content has been wholly generated by AI or digital technology.

At the outset I would first like to acknowledge the very significant contribution, work and advocacy of the Hon. Connie Bonaros MLC, who has also introduced a bill regarding invasive deep fakes in this place. I would also like to thank the Hon. Connie Bonaros for her collaborative work on this reform and wish to put on the record that her bill and the one that is introduced in this place today will be worked on together to make sure we have the best possible result for South Australians.

I would further like to pay tribute to the ongoing and significant work of my colleague in another place Mr Michael Brown MP, the member for Florey. Mr Brown's work as chair of the parliamentary committee on artificial intelligence has been central to this reform, having led enlightened discussions with experts such as specialised SAPOL officers and AI technology experts.

The findings of that committee were very insightful, and it is the result of that substantial work from Mr Brown as well as the significant collaborative efforts with the Hon. Connie Bonaros that has culminated in this bill that the government is introducing today.

The bill inserts new Part 5B into the Summary Offences Act 1953 to create six new offences to address an apparent gap in relation to the creation and non-consensual distribution of humiliating, degrading or invasive depictions that have been wholly generated by AI or digital technology.

As members may be aware, a deepfake refers to an image, video or audio of a real person that has been edited to create an extremely realistic but false depiction of that person doing or saying something that they did not actually do or say. It can also refer to wholly computer-generated depictions of humans who do not exist in real life.

Increasing concerns have been raised about the potential misuse of deepfakes in recent times, particularly in relation to the creation of sexually explicit content. Such content can be used to harass, intimidate, threaten, blackmail or extort victims, including victim survivors of domestic and family violence.

The Hon. E.S. BOURKE: Point of order, Mr President. I call to your attention the state of the house.

The PRESIDENT: A quorum not being present, ring the bells.

A quorum having been formed:

The Hon. K.J. MAHER: Victims of deepfakes can experience a wide range of harms, including significant emotional distress, anxiety, depression and invasion of privacy, as well as reputational and economic loss. In South Australia, Part 5A of the Summary Offences Act currently contains a number of filming and image-based offences that already make it unlawful to distribute a humiliating, degrading or invasive image of a real person that has been edited or altered by digital technology, including deepfakes. However, it is unclear whether those offences would be sufficient to capture the creation or distribution of a simulated depiction of a real person that has been wholly generated by AI digital technology.

To address this concern, the bill creates six new offences in relation to the creation and non-consensual distribution of a humiliating, degrading or invasive depiction of a simulated person including:

creation of a humiliating or degrading depiction of a simulated person;

creation of an invasive depiction of a simulated person;

distribution of a humiliating or degrading depiction of a simulated person;

distribution of an invasive depiction of a simulated person;

threat to distribute a humiliating or degrading depiction of a simulated person; and

threat to distribute an invasive depiction of a simulated person.

The offences in the bill are closely modelled on the existing filming and image-based offences in Part 5A of the Summary Offences Act and impose similar maximum penalties, with the most serious offences in the bill imposing a maximum penalty of up to $20,000 or four years' imprisonment where the depiction of the simulated person purports to be of a real person under the age of 17.

For the purposes of the bill, 'artificially generated content' is defined to mean audiovisual, visual or audio content that has been wholly generated by AI or has been created by a person solely using digital technology. This reflects the fact that an existing image or video of a real person that has been altered by digital or other means is already captured by the offences in Part 5A of the Summary Offences Act.

For each of the offences in the bill, a 'simulated person' is defined to mean a person who is depicted in artificially generated content that either, firstly, purports to be a depiction of a particular real person or, secondly, so closely resembles a depiction of a particular person that a reasonable person who knew the real person would consider it likely to be a depiction of that person.

For the purposes of the bill, artificially generated content will amount to a 'humiliating and degrading depiction' of a simulated person where it depicts, firstly, an assault or other act of violence done by or against the simulated person or, secondly, an act done by or against the simulated person that reasonable members of the community would consider to be humiliating or degrading to a real person.

For the purposes of the bill, artificially generated content will amount to an invasive depiction where it depicts the simulated person, firstly, in a state of undress, such as where the person's genitals or anal region is visible, or, secondly, performing a private act, such as a sexual act or an act carried out in a sexual manner.

The bill provides that it is a defence against a charge of each of the offences in the bill to establish that each real person shown in the depiction gave their own written consent for the content to be created or distributed. The bill also contains a defence for law enforcement personnel or legal practitioners who are acting in the course of proceedings. A further defence exists for artificially generated content that constitutes or forms part of the work of artistic merit where there is no undue influence on the aspects of the work that might be considered humiliating, degrading or invasive.

Importantly, the bill provides that the apparent consent will not be effective for the purposes of each of the offences where it has been given by a person who is under the age of 17 or who has a cognitive impairment or where consent has been obtained from the person by duress or deception. In circumstances where a court finds a person guilty of an offence, the bill empowers the court to order forfeiture of anything that has been seized and consists or contains a record of artificially generated content or consists of equipment used in the commission of the offence.

It is critical that our laws continue to keep pace with technological advancements to ensure the safety of our community, and that is exactly what we are doing with this bill today. The bill will make it clear that creating or sharing humiliating or degrading or invasive depictions of a person without their consent, regardless of whether that content has been altered or wholly created by AI or other digital technology, is unlawful and unacceptable. I commend the bill to the chamber and seek leave to insert the explanation of clauses without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Summary Offences Act 1953

3—Insertion of Part 5B

This clause inserts new provisions as follows:

Part 5B—Artificially generated content offences

26F—Interpretation

This section defines key terms to be used in the proposed Part.

26G—Creation of humiliating, degrading or invasive depiction

The proposed section creates 2 new offences:

creating a humiliating or degrading depiction of a simulated person, with a maximum penalty of imprisonment for 1 year;

creating an invasive depiction of a simulated person, with a maximum penalty of $10,000 or imprisonment for 2 years. If the simulated person in the depiction purports to be a real person who is under the age of 17 years, the maximum penalty is $20,000 or imprisonment for 4 years.

It is a defence to these offences if the defendant proves that the creation of the relevant depiction occurred with the written consent of each real person depicted in the depiction.

26H—Distribution of humiliating, degrading or invasive depiction

The proposed section creates 2 new offences:

distributing a humiliating or degrading depiction of a simulated person, with a maximum penalty of imprisonment for 1 year;

distributing an invasive depiction of a simulated person, with a maximum penalty of $10,000 or imprisonment for 2 years. If the simulated person in the depiction purports to be a real person who is under the age of 17 years, the maximum penalty is $20,000 or imprisonment for 4 years.

It is a defence to these offences if the defendant proves that the distribution of the relevant depiction occurred with the written consent of each real person depicted in the depiction.

26I—Threat to distribute humiliating, degrading or invasive depiction

Proposed subsection (1) creates an offence with a maximum penalty of $5,000 or imprisonment for 1 year, for a person who—

threatens to distribute a humiliating or degrading depiction of a simulated person; and

intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused.

Proposed subsection (2) creates an offence for a person who—

threatens to distribute an invasive depiction of a simulated person; and

intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused.

The maximum penalty for the offence in proposed subsection (2) is $5,000 or imprisonment for 1 year. If the simulated person purports to be a real person who is under the age of 17 years, or the threat is made to a person who is under the age of 17 years, the maximum penalty applying is $10,000 or imprisonment for 2 years.

It is a defence to an offence in the proposed section if the defendant proves that each real person depicted in the depiction gave written consent to the distribution of the humiliating or degrading depiction or invasive depiction (as the case may be).

The proposed section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct, and may be explicit or implicit.

26J—General provisions

Proposed subsection (1) provides that an apparent consent for the purposes of offences in the proposed Part will not be an effective consent if—

given by a person under the age of 17 years or with a cognitive impairment; or

the consent was obtained from a person by duress or deception.

Proposed subsections (2) and (3) make provision for the retrieval or forfeiture of anything seized from a person in the commission of an offence in the proposed Part.

Debate adjourned on motion of Hon. L.A. Henderson.