An empirical and legal analysis of sexual deepfakes in the eu, belgium and the netherlands

Abstract

The term 'deepfake' refers to artificial or 'fake' content on the internet made using 'deep learning' or 'machine learning' algorithms. This technology was immediately (ab)used to fabricate non-consensual sexual deepfakes involving celebrities and later on not-famous people. In light of the technological advancements and frequent incidents with sexual deepfakes, we assume they are here to stay. As a result, many states confronted with this issue consider the implementation of legislation criminalising sexual deepfakes.In our paper, the authors aim to provide an answer to the question 'How do sexual deepfakes proliferate online, to what extent is the non-consensual production, distribution, possession of, and/or access to sexual deepfakes of adults currently criminalised, and to what extent should it be criminalised in the future?' with a combined empirical and legal approach. To that end, they have conducted an explorative analysis of the online market for sexual deepfakes. The empirical research was focused on Telegram groups, in particular Dutch-language groups, and combined with a legal analysis of the legal frameworks on sexual deepfakes in Belgium and the Netherlands. The research shows that sexual deepfakes proliferate on the clear web and public Telegram groups. Subsequently, the authors have examined to what extent the non-consensual production, distribution, possession of, and/or access to sexual deepfakes are already criminalised and to what extent they should be criminalised. From the legal analysis they conclude that - if there is any positive obligation to criminalise sexual deepfakes of adults at all - it is limited to the production and subsequent distribution of sexual deepfakes of existing people.