How are &quot;deep fakes&quot; defined in the Online Safety Bill? It is in the news that sharing deepfake intimate images to be criminalised in England and Wales in the Online Safety Bill: Sharing deepfake intimate images is to be criminalised in England and Wales. Amendments to the online safety bill will make it illegal to share explicit images or videos that have been digitally manipulated to look like someone else without their consent. To try to find the definition I have searched the bill for the relevant words in that paragraph (deep, manipulated, &quot;someone else&quot;, &quot;explicit images&quot;) and they do not occur. &quot;consent&quot; occurs 9 times but not in this context. I am interested in how the distinction is made between a deep fake created specifically to look like someone and one that looks like someone because they are in the training dataset. Generative AI porn is a thing, and this is all created from video and images available online, pornographic and not. It seems plausible that one could create and share an explicit work using an AI without the knowledge that it looked like a real person. Could that be criminalised under this law?
Section 170 of the Online Safety Bill proposes a new section 66A in the Sexual Offences Act: 66A Sending etc photograph or film of genitals (1) A person (A) who intentionally sends or gives a photograph or film of any person’s genitals to another person (B) commits an offence if— (a) A intends that B will see the genitals and be caused alarm, distress or humiliation, or (b) A sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether B will be caused alarm, distress or humiliation … (5) References to a photograph or film also include— (a) an image, whether made by computer graphics or in any other way, which appears to be a photograph or film … So the law doesn’t define or prohibit the sharing of “deepfakes” as such. What makes the sharing illegal is the sender’s state of mind and the recipient’s potential “alarm, distress or humiliation.” Subsection (5)(a) then makes it clear that the law applies even if the shared image is computer-generated and therefore not really “a photograph or film of any person’s genitals.”
Consent in the GDPR sense? No. Consent in the more general sense of “agreement”? Sure. Under the GDPR, consent is only one of many legal bases for processing personal data. Consent requires an unambiguous indication of the data subject's wishes through a clear statement or affirmative action. Thus, consent cannot be “hidden” in another document – it would be ambiguous whether the data subject just wanted to agree to boilerplate terms of service or specifically consent to a particular purpose of processing. Indeed, Art 7(2) GDPR explicitly requires that “the request for consent shall be presented in a manner which is clearly distinguishable from the other matters”. Another legal basis is Art 6(1)(f) legitimate interest. A legitimate interest requires some interest that outweighs the data subject's rights and interests. This balancing test must consider whether the data subject can reasonably expect the processing to occur, given the data subject's relationship with the data controller. I would argue that an event venue does have a legitimate interest to film and photograph events, and that this interest outweighs the data subject's rights and interests at least for larger shots, but not necessarily for close-ups, portraits, etc. The event participants can reasonably expect the audience to be filmed and photographed. Indeed, the linked privacy policy (linked just after the part that you quoted) is very thorough and explains in detail what is happening. The table starting on page 9 describes the purposes of processing, the data being used for that purpose, and the legal basis for that purpose. Here, the relevant entry is: Purpose: Photographs of crowds at our festivals and/or events Type of data: (a) Identity Legal basis: (a) Necessary for our legitimate interests (to capture footage of artists performing at our festivals and events which feature crowd or to record images of our festivals and events for showreel and marketing purposes) This means: they are not asking for consent in the GDPR sense. They are relying on a “legitimate interest” instead. They have to inform you in advance about the processing of personal data – which they evidently did by providing the privacy notice – but they don't have to ask you. So what is that consent about then? The consent you quoted is more about personality rights: you would consent to “being photographed, filmed and sound recorded as an audience without payment, and to [your] image being exploited in any and all media for any purpose at any time throughout the world”. This is essentially a model release.
There is nothing illegal about the child asking for nude images, but, depending on jurisdiction and circumstances, there is quite likely to be a serious legal problem with the adult providing such nudes. The exact laws that might be violated would depend a lot on the jurisdiction. The detailed facts would also be significant. But such a situation is fraught with danger, for the adult. Even if there is no ill-intent, such actions could easily be misinterpreted, and might be technically unlawful regardless of intent. Of course, not all nudes are obscene, or even &quot;inappropriate for children&quot;. Which are so classified depends on the laws of the particular jurisdiction.
As is often the case with the recording statutes, the meaning of the law is refined by case law. Specifically, the consent requirement holds when the parties have a reasonable expectation of privacy. The statutory language limits the restriction to &quot;private communication&quot;: therefore, a person does not gain veto power over a public recording session simply by walking into the arena. Consent is implied when the fact of recording is self evident (you can see the operating recording device): by continuing to speak knowing that your speech is being recorded is implicit consent. Also, consent is only required for participants in the communication, and a person who happens to wander into the scene is not a participant in that communication. You may not want to test the edges of the law, in case a person wanders into the scene oblivious to their surroundings and talking on their cell phone. There might be a scenario where you're recording yourself but they are unaware of that fact, and they are having another private communication. The law does not prohibit accidentally overhearing someone else's private communication, it prohibits recording it. An unavoidable sign may aid you in your quest to not get sued.
Not disclosing transgender identity is not a crime of any kind, not rape, not fraud, not anything else. There is really no qualification to this statement. There is pretty much no plausible scenario in which concealing a transgender identity leads to liability for fraud of any kind and this never constitutes rape by deception. What is a crime and is regularly prosecuted, is retaliating against the person or property of someone who they discover is transgender while having sex. Incidents like these happen with some frequency and they alway create criminal liability for the person retaliating and never for the transgender individual in the cases where the transgender individual isn't killed (dozens of time each year in the U.S. the transgender individual is killed in a situation like this one).
The most apparent potential offences would be under 18 U.S.C. § 1030, but these require the mens rea of &quot;knowingly&quot; or &quot;intentionally&quot; doing things without authorization, or doing so &quot;with intent to defraud&quot;, etc. See also the Department of Justice's manual entry on this family of offences. Particularly relevant is this quote: As part of proving that the defendant acted knowingly or intentionally, the attorney for the government must be prepared to prove that the defendant was aware of the facts that made the defendant’s access unauthorized at the time of the defendant’s conduct. Given your stipulation that the person has unintentionally viewed or downloaded the material without authorization, this would not be a violation of 18 U.S.C. § 1030.
It is not illegal to view pornography. It is illegal to possess or receive certain kinds of pornography, namely child porn, under 18 USC 2252 and 18 USC 2252a (there is a subtle legal difference between "child pornography" and "visual depiction (which) involves the use of a minor engaging in sexually explicit conduct"). In order to view anything on the internet, you have to first receive it, so there is potential criminal liability. These sections allows one affirmative defense, if one knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer; but also (1) possessed less than three images of child pornography; and (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof— (A) took reasonable steps to destroy each such image; or (B) reported the matter to a law enforcement agency and afforded that agency access to each such image. A person's belief that the website was moderated is not a defense. There are also state statutes, typically stronger, which outlaw possession of child porn. Crabtree v. Kentucky is an example of such a (successful) conviction. The court addresses the question of whether "merely viewing" can constitute actual possession: the court found that it did: Crabtree urges us to consider that his merely viewing child pornography images before deleting them should not be deemed to constitute actual possession. After reviewing the facts of this case, we are not persuaded that this is a valid argument in light of the Ninth Circuit's definition of possession in Romm, supra: that the act of seeking out child pornography and exercising control over it constitutes criminal possession—regardless of whether it is downloaded. Crabtree admitted to seeking out the material and to having it on his computer. It would be impractical to try to review 50 states' worth of child porn laws plus the federal statute, but there is also a “Temporary innocent possession” defense, which is conceivably applicable to the situation where you click a link and surprise! In the above case, defendant had to click a link that indicated the nature of the contents, and had to confirm file-saving of a file whose name was indicative of its content. Such circumstances overrule the presumption of temporary innocent possession. A question raised in the comments is whether a porn-ambush could lead to a conviction. Suppose that a web page has a number of embedded child-porn images which are saved to a user's computer without his knowledge. As pointed out in this report of the US Sentencing Commission, A conviction for receipt, however, requires proof beyond a reasonable doubt that a defendant knowingly came into possession of child pornography at the time that the image or video was received with case law citations. The case of US v. Kuchinski, 469 F. 3d 853 is instructive, because defendant did knowingly seek out and download a number of child porn images, and was convicted. In 94 of those cases, he knew he was receiving child pornography; in over 10,000 other cases, such images were found in his system cache (this is relevant to sentencing). The court found that it matters that "Kuchinski had no knowledge of the images that were simply in the cache files", and the court concluded, in K's favor, that Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control. Do you know about the system cache, and do you know how to control it? If not, you might avoid the charge. In other words, it depends on the circumstances surrounding the possession and the evidence of a knowing act, as well as the jurisdiction.
Article 175 of the Criminal Code says: A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine. The same shall apply to a person who possesses the same for the purpose of sale. This has been interpreted to require pixelization, blurring, censorship bars, or other means of obscuring genitalia. See the 2013 guilty plea by publishers of Core Magazine for an example prosecution under art. 175 for insufficient censorship. The law apparently does not reach material that is produced and edited and sold outside of Japan (even if filmed in Japan). See e.g. the discussion of Realm (1976) in Kirsten Fischer, The Art of Censorship in Postwar Japan, p. 198-199: [the film] was not prosecutable because of Ōshima’s innovative production strategy ... He had imported the film stock from France, shot the film in Kyoto, and then exported the undeveloped film back to France, where he developed and edited it and finally distributed it internationally, including importing it back to Japan. A &quot;heavily cut form [was] eventually screened in Japan.&quot;