ECPAT NZ Submission: Strengthening the definition of “intimate visual recording”

Introduction

ECPAT Child Alert NZ (ECPAT NZ) welcomes the Deepfake Digital Harm and Exploitation Bill and its aim to criminalise the creation and distribution of non-consensual sexually explicit deepfakes. The proposed amendments to the Crimes Act 1961 and Harmful Digital Communications Act 2015 are a critical step in addressing the harms caused by this rapidly evolving technology.

However, the current definition of “intimate visual recording” in the bill is too narrow to fully capture the scope of harm caused by deepfakes, particularly as technology advances. This submission focuses exclusively on refining the definition to ensure it is future-proof, comprehensive, and aligned with the realities of deepfake exploitation, especially where children and vulnerable groups are concerned.

Key Recommendations for the Definition of “Intimate Visual Recording”

1. Explicitly Address Minors and Consent

The bill relies on lack of consent as the threshold for criminalising explicit deepfakes. NZ law does not explicitly prohibit minors from consenting to their own intimate images or deepfakes. This creates a loophole: if a minor consents to the creation of a deepfake (e.g., under peer pressure), the current definition may not criminalise its creation or distribution, even if it was intended to cause harm.

Proposed Amendment:

Add a non-consent presumption for minors:

“For the purposes of this Act, consent from a person under the age of 16 years is not valid, and any intimate visual recording of a minor is deemed to be without consent.”

Rationale:

• Aligns with child protection principles (UNCRC) and international standards
• Recognises that minors lack the capacity to fully understand the risks of such content.
• Reflects the fact that an intimate visual recording of a minor is be classified as CSAM

2. Include Synthetic Child Sexual Abuse Material (CSAM)

The bill’s definition requires the deepfake to depict “a person’s likeness”, but fully synthetic Child Sexual Abuse Material (e.g., AI-generated images/videos of fictional children) does not depict a real, specific, identifiable person. It is however still exploitative and extremely harmful, normalising child abuse, desensitising offenders, and increasing the likelihood of further offending including in-person offending. CSAM including fully synthetic CSAM is already illegal as it is captured within the Film, Videos, and Publications Classification Act (FVPCA).

Proposed Amendment:

Add a clause to explicitly include synthetic CSAM:

“For the purposes of this Act, an intimate visual recording also includes a recording that has been created, synthesised, or altered to depict a fictional or non-existent person in a manner that appears to show a child or young person— (a) naked or with their genitals, pubic area, buttocks, or female breasts exposed, partially exposed, or clad solely in undergarments; or (b) engaged in an intimate sexual activity; or (c) engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing.”

Rationale:

• Synthetic CSAM causes psychological harm to real children by normalising exploitation.
• AI tools can generate hyper-realistic synthetic CSAM at scale, making this a growing threat.
• The FVPCA already mandates the possession, creation or distribution of CSAM including real, AI-generated, and fully synthetic, then the inclusion of synthetic CSAM in the draft bill would ensure both pieces of legislation are in alignment.

3. Future-Proof the Definition for Emerging Technologies

The bill’s definition is technology-specific (e.g., “visual recording”), which may not cover future forms of deepfake exploitation, such as real-time deepfake live streams, holograms or the metaverse.

Proposed Amendment:

Adopt a technology-neutral definition:

“An intimate visual recording includes any recording or representation, whether visual, audio, or multimodal, that has been created, synthesised, or altered, is captured or live and ongoing, without the knowledge or consent of the person (or, in the case of synthetic depictions, without lawful justification), and that a reasonable person would consider to depict—”

Rationale:

• Ensures the law remains relevant as technology evolves.
• Focuses on the impact (exploitation, harm) rather than the medium.

4. Expand the Definition to Include Non-Visual Deepfakes

The bill’s definition is limited to visual recordings (images/videos). However, audio deepfakes (e.g., voice cloning to create fake intimate or sexual audio) can cause harm but are not covered.

Proposed Amendment:

Amend the definition to include:

“a recording that has been created, synthesised, or altered without the knowledge or consent of the person who is the subject of the recording, and appears to show or depict the person—”

Rationale:

• By removing the specification that the recording must be visual, the definition is now open to including audio, visual, and any other future form of technology.
• Audio deepfakes or deepfakes with an audio component are likely to be used increasingly in sextortion, grooming, and revenge porn.

5. Clarify the Standard for “Appears to Show”

The phrase “appears to show” is subjective and may lead to legal uncertainty.

Proposed Amendment:

Replace with:

“An intimate visual recording includes a recording that a reasonable person would believe depicts the person—”

Rationale:

• Shifts the focus from perception to reasonable belief, reducing ambiguity.

6. Gendered Language

The draft includes the words “female breasts”, this suggests that a nonconsensual nude image featuring a gender-neutral individual / male chest would not be captured under this legislation.

Proposed Amendment:

Remove the word “female”.

Conclusion: A Focused but Critical Step

ECPAT NZ strongly supports the intent of this bill to criminalise non-consensual deepfake exploitation. The current definition of “intimate visual recording” must be expanded and clarified to address:

1. Non-visual deepfakes (e.g., audio).
2. Synthetic CSAM (even if it does not depict a real person).
3. Future technologies (e.g., real-time, multimodal, or immersive deepfakes).
4. Objective standards for what constitutes an intimate depiction.
5. Explicit protections for minors, including a presumption of non-consent.

These amendments will ensure the bill is effective, future-proof, and aligned with child rights principles.

Broader Context: The Need for Comprehensive Action

While this submission focuses narrowly on the definition, ECPAT NZ notes that amending the definition is only one step in addressing deepfake harm. To fully protect individuals—especially children—from the growing threat of deepfake exploitation, New Zealand must also consider:

• Platform accountability for detecting and removing deepfake harm.
• Victim support services, including trauma-informed care and legal remedies.
• Education and prevention programmes in schools.

ECPAT NZ stands ready to collaborate with the Committee on these broader issues in future legislative processes. For now, we urge the Committee to prioritise the above amendments to the definition to ensure this bill is in alignment with existing legislation and is as strong and effective as possible.