Artificial Intelligence and Image-Based Sexual Abuse: an analysis of non-consensual deepfakes in light of Portuguese criminal law

Abstract

The paper addresses the following questions: could the production, distribution, acquisition, exhibition or possession of non-consensual sexual deepfakes involving adults or minors be considered sexual offences under the Portuguese legal system? What obstacles would need to be overcome for that criminal subsumption and what would be the possible solutions for them? For that, it applies the deductive methodology, taking as general premises the results from an analysis of Portuguese, European, North American and Brazilian legislation, doctrine and jurisprudence on sexual crimes and artificial intelligence, applying them to the specific case of non-consensual sexual deepfakes and their possible framing as sexual offences. It concludes that, in cases of virtual representation of minors, it is necessary to distinguish total virtual child pornography from the partial virtual one, and only in the latter case will there be a sexual offense. When it comes to the virtual representation of adults, we will notice a general legal gap. In view of the harmfulness of these cases, we will demonstrate the need for a possible new crime specifically aimed at protecting sexual privacy regarding non-consensual deepfakes.