Is It a Crime? 10 Things to Know About the New NSW Deepfake and AI Image Laws
Technology moves faster than the law, but the gap in New South Wales has officially closed. If you believe that an image or audio clip isn't "real" just because it was generated by Artificial Intelligence (AI), you are mistaken under current NSW legislation. As of August 7, 2025, the state introduced rigorous new laws specifically targeting the creation and distribution of sexually explicit deepfakes.
The legal landscape has shifted. What might have been considered a "prank" or a "digital fabrication" in the past is now a serious indictable offence that carries the weight of a prison sentence. If you are facing allegations or are confused about how these laws apply to your digital footprint, obtaining expert criminal law advice Sydney is no longer optional, it is a necessity.
At Greenfield Criminal & AVO Defence Lawyers, we represent individuals navigating the complexities of digital evidence and new-age criminal charges. Here are the 10 critical things you need to know about the new NSW deepfake and AI image laws.
1. What is the maximum penalty for a deepfake offence?
The most important thing to understand is that the courts take these matters seriously. The maximum penalty for creating, sharing, or threatening to share sexually explicit deepfakes is three years’ imprisonment.
This penalty aligns deepfake offences with other "image-based abuse" crimes (commonly known as revenge porn). The judiciary aims to deter the 550 percent year-on-year increase in explicit deepfakes reported globally by imposing harsh custodial sentences for those found guilty in NSW. Depending on the specifics of the case, you could also face significant fines and a permanent criminal record that will impact your travel and employment prospects.
2. Does the law apply if I didn't create the image myself?
Yes. You can be prosecuted even if you did not use AI software to create the material.
The legislation amends the Crimes Act 1900 to cover not just the production, but also the distribution of this material. If someone sends you an AI-generated explicit image of an identifiable person and you forward it to a group chat or post it online, you have committed a crime. Under the law, "sharing" is just as culpable as "creating." If you find yourself in a situation where digital evidence is being used against you, you should look into why choosing the right criminal defence lawyer in Sydney matters to protect your rights immediately.
3. Are "purely" AI-generated images included?
In the past, defendants might have argued that because a person's physical body was never photographed, no "intimate image" existed. The new law explicitly includes material created entirely using artificial intelligence.
If the AI produces an image that appears to be a real, identifiable person in a sexually explicit context, it falls under the criminal code. It does not matter if the "original" photo used to train the AI was a completely innocent headshot from LinkedIn or Facebook. If the output is explicit and identifiable, the law applies.
4. Is AI-generated audio now a crime?
For the first time, NSW legislation specifically criminalises sexually explicit audio.
This is a major expansion of the law. "Voice cloning" or "deepfake audio" that depicts a real person engaged in sexual activity or making sexually explicit statements is now illegal. This covers the creation, recording, and distribution of both real and AI-generated audio that sounds like a real, identifiable person. If you are being investigated for audio-based harassment or abuse, seeking a criminal defence lawyer Sydney who understands digital forensics is vital.
5. Can I be charged for just "threatening" to share a deepfake?
Yes. Threatening to share a deepfake is a criminal offence, regardless of whether you actually have the file or intended to send it.
The law recognises the psychological trauma and "digital extortion" that occurs when someone is threatened with the release of intimate material. Even if the material is fake, the threat is real. If the prosecution can prove you made a threat to distribute a deepfake to cause distress or gain an advantage, you can be charged under the same provisions as those who actually distribute the material.
6. How does the court define "Sexually Explicit"?
The definition is broad and designed to capture a wide range of harmful material. Under the amended Crimes Act 1900, material is considered sexually explicit if it depicts:
- A person engaged in a sexual act.
- A person with their private parts exposed.
- A person in a state of undress in a context that is sexual.
The court uses a "reasonable person" test to determine if the content is sexually explicit. Because AI can create highly realistic (though fake) depictions, the standard of evidence often relies on digital forensic analysis to prove the identity of the person being targeted.
7. Can the court force me to delete the material?
Yes. Upon a finding of guilt, the court has the power to issue removal orders.
If you are convicted (or in some cases, as part of bail conditions), a judge can order you to:
- Remove the material from any website or social media platform.
- Retract the material.
- Delete or destroy all digital copies and the hardware used to create them.
Failure to comply with these orders can lead to further charges, including contempt of court or breaching a court order, which carry their own heavy penalties.
8. What happens if the police seize my phone or computer?
In deepfake cases, the prosecution's case relies almost entirely on digital evidence. If the police suspect you are involved in creating or distributing AI images, they will likely obtain a search warrant to seize your devices.
You need to be aware of your rights during this process. Police may demand your passwords or access codes under a "Data Access Order." Refusing to comply with such an order is a separate offence. However, how that evidence is then used and whether it was obtained legally is a matter for your lawyer to contest. For more information on this, read our guide on the digital evidence nightmare and mistakes to avoid when police seize your phone.
9. What are the common defences for deepfake charges?
Every case is unique, but several legal defences may be available depending on the circumstances. These include:
- Lack of Identifiability: If the AI-generated person does not actually resemble a real, identifiable person, the charge may not hold.
- Consent: If the person depicted consented to the creation and distribution of the material (though this is rare in deepfake "abuse" cases).
- No Distribution/Production: If you were not the person who created or shared the image, and the police have the wrong individual.
- Reasonable Excuse: In very limited circumstances, such as for the purposes of a legitimate medical or scientific investigation, though this is a high bar to clear.
Proving these defences requires a sophisticated understanding of both the law and the technology involved. If you are unsure of your position, you should consult a professional for criminal law advice Sydney.
10. Why do I need a criminal defence lawyer Sydney for these charges?
The intersection of AI and criminal law is a "new frontier." Many general practitioners may not be familiar with the technical nuances of how deepfakes are generated or how metadata can be manipulated.
A specialized criminal defence lawyer Sydney will:
- Challenge Digital Forensics: Work with experts to see if the material can actually be traced back to your device.
- Negotiate with the Prosecution: In some cases, it may be possible to have charges reduced or dropped if the evidence of "identifiability" is weak.
- Protect Your Reputation: These charges carry a significant social stigma. We work to ensure your side of the story is heard clearly.
- Advise on Sentencing: If a conviction is unavoidable, we work to maximise sentencing discounts and argue for non-custodial sentences where possible.
Summary: Act Quickly to Protect Your Future
The NSW government introduced these laws to close a loophole that left victims of "technology-facilitated abuse" without recourse. While the intent is to protect victims, the broad nature of the laws means that individuals can quickly find themselves facing serious jail time for digital actions they may not have fully understood the consequences of.
If you have been contacted by the police regarding AI-generated images or audio, or if you have been charged with an offence under the new deepfake laws, do not wait. Digital evidence can be deleted, overwritten, or misinterpreted if you do not act fast.
Contact Greenfield Criminal & AVO Defence Lawyers today for expert criminal law advice Sydney. Our team is ready to help you navigate this complex new legal landscape and fight for your rights.
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