Criminal law approach to regulating non-consensual pornographic deepfake

Abstract

The paper examines the needs and possibilities of applying the criminal law mechanism to prevent the deepfake pornography (digital pornographic content created by the use of artificial intelligence). The criminological characteristics of the phenomenon are described. The legislation of the United States of America, Great Britain, Switzerland, Russia and China, as well as the regulations of the European Union related to the prevention of gender-based violence and liability for the dissemination of deepfakes, was analyzed. Analysis of the Criminal Code of Republic of Serbia showed that legal reform is required because adequate legal protections cannot be provided to the victims of unauthorized publishing of deepfake pornography. The conclusion is that criminal legal intervention to the non-consensual pornographic deepfakes is necessary, because the creation and distribution of deepfake porn violates personal rights, social morals and public interest. Criminalizing such behavior would be primarily in the interest of protecting the rights of victims, although it is not expected to have a greater practical significance. Prohibition of making and online distribution of sexually explicit deepfake porn must be harmonized with the legal protection of privacy of digital services users and with proactive measures of cyber security.