NSW Bolsters Digital Defences: New Laws Target AI-Generated Image-Based Abuse

In a significant move to modernise the state’s legal framework against evolving technological threats, the New South Wales Government has officially enacted stringent new laws targeting image-based abuse. As of 16 February 2026, the amended Crimes Act 1900 now specifically categorises the creation and distribution of non-consensual AI-generated “deepfakes” as a serious criminal offense.

The new legislation includes the critical addition of sections 91PA and 91R(1A) of the Crimes Act 1900. Furthermore, under section 91N, the legislation has been updated to broaden definitions regarding:

Digitally generated content
Images and “simulated persons”
Intimate audio and image material

At Brightstone Defence, we recognise that the rapid advancement of Artificial Intelligence brings not only innovation but also sophisticated new vectors for harassment and digital harm. These legislative reforms represent a critical step in protecting the privacy, dignity, and digital safety of all citizens.

What is Image-Based Abuse?

Image-based abuse refers to the creation, sharing, or threatened sharing of intimate images, videos, or intimate audio material of a person without their consent. Historically, this primarily involved real photographs or recordings taken without permission. However, under the updated NSW Crimes Act, the definition has expanded significantly.

It now explicitly includes:

Intimate Audio Material: The non-consensual recording or distribution of sounds made during a private or sexual context.
AI-Generated “Deepfakes”: Synthetic media where artificial intelligence is used to place a person’s likeness or voice into a sexual situation they were never actually in.
Simulated Persons: Digitally altered content that depicts a person in a sexual way, regardless of whether the original source was real or synthetic.

Whether the material is a real recording, an audio file, or a digitally fabricated “fake,” the law now recognises that the harm to the victim’s dignity and privacy is the same.

Closing the "Deepfake" Loophole

While NSW law previously covered the unauthorised sharing of intimate material, the 2026 amendments were designed to close a dangerous gap created by generative AI. The law now treats digitally altered or entirely synthetic content (commonly known as deepfakes) with the same severity as real photographic evidence.

Key highlights of the new legislation include:

Consent is Paramount: It is now a crime to create, share, or even threaten to share sexually explicit images, video, or audio without the subject’s express consent, regardless of whether the material is real or AI-generated.
Protection for Minors: The law works in tandem with existing child abuse material statutes. Any AI-generated content depicting a person under 18 in a sexualised manner is classified as child abuse material.
Enforcement Power: NSW Police and the courts now have clear authority to investigate and prosecute these digital crimes.

Penalties and Compliance

The NSW Government has sent a clear message that digital abuse carries real-world consequences. Individuals found guilty of breaking these laws under section 91PA or 91R(1A) face a maximum penalty of:

three years imprisonment
a fine of up to $11,000
or both.

Furthermore, the courts possess the power to order the deletion or removal of the offending material. Failure to comply with a take-down order under section 91S can result in a maximum penalty of up to:

two years imprisonment
a fine of up to $5,500
or both.

To ensure the law is applied fairly, there are age-appropriate safeguards; criminal proceedings against individuals under 16 require approval from the Director of Public Prosecutions. Limited exemptions also exist for legitimate medical, scientific, or law enforcement purposes.

A Multi-Layered Approach to Digital Safety

These reforms do not exist in a vacuum. They are part of a broader national framework involving the eSafety Commissioner, Australia’s independent regulator for online safety.

For victims of image-based abuse, the path to resolution is now clearer. While the NSW Police handle the criminal investigation and prosecution of offenders, the eSafety Commissioner remains the primary body for the rapid removal of malicious content from social media platforms and websites.

What should you do if targeted?

Report to Police: If the abuse occurred on or after 16 February 2026, it falls directly under these powers.
Contact eSafety: You do not need a police report to start the removal process. eSafety can work with platforms to take down material quickly.
Seek Support: The NSW Sexual Violence Helpline (1800 424 017) provides confidential support for those affected by these crimes.

The Importance of Specialist Legal Advice

Whether you are the person affected or the person accused, these matters can be legally and emotionally complex. Seeking early legal advice is strongly recommended.

At Brightstone Defence, we provide experienced representation on both sides of these cases:

For Victims and Targets:

We can assist with:

Preserving Evidence: Ensuring digital evidence is properly secured before it is altered or deleted
Liaising with Authorities: Communicating with NSW Police and the eSafety Commissioner on your behalf
Exploring Legal Options: Including private prosecutions or civil claims where appropriate

For the Accused:

Allegations involving digital content and AI-generated material often involve complex technical evidence. We provide a strong and strategic defence, including:

Strategic Defence: Examining the prosecution’s case and challenging the authenticity or interpretation of digital evidence
Protection of Your Rights: Supporting you from the investigation stage through to court proceedings
Challenging False Allegations: Analysing metadata and digital footprints to identify inconsistencies, errors, or potential fabrication

Contact us as soon as possible for confidential, expert guidance. Early intervention can make a significant difference in protecting your rights, preserving critical evidence, and achieving the best possible outcome.

Source: NSW Government, Department of Communities and Justice, Law against Image-Based Abuse: https://dcj.nsw.gov.au/legal-and-justice/laws-and-legislation/image-based-abuse.html