Are Indecent Images Produced by AI Illegal?

The use of Artificial Intelligence (AI) is growing, particularly for the production of indecent images and videos of children. The Crown Prosecution Service (CPS) has recently prosecuted the first case of its kind for Greater Manchester Police, the case of Hugh Nelson, who amongst other sexual offences, stood charged with offences which involved producing indecent material using AI. It was alleged that Mr Nelson used real photographs of children to turn them into sexual images, he would sell and distribute the material online. 

Whether this material is illegal can cause confusion, and understandably many will take the view that AI generated imagery is not real because the child depicted is not being harmed. However this is far from correct. It is unlawful to produce, possess, download and distribute indecent images and videos of children which have been produced by AI, or via any other software allowing for fake computer generated images. 

AI is a form of technology which enables a computer to simulate human intelligence, it allows a computer to perform tasks which would usually require a human to do, or to contribute to. AI systems are trained on huge amounts of information and learn to identify the patterns in it, in order carry out tasks such as having human-like conversation, or predicting a product an online shopper might buy.

• Category A: Involves penetrative sexual activity 
• Category B: Explicit material that is non-penetrative but is sexual 
• Category C: Explicit material involving erotic posing, either indicatively or in a nudist environment

The police will investigate anyone suspected of having involvement in the production, making and/or distribution of indecent images that are not necessarily real and have been computer generated. The offences will be treated the same as cases where the images and videos were real, the offence is as serious and can carry a lengthy term of imprisonment upon conviction. 

Following the police becoming aware of the suspected offence, the devices belonging to the suspect will be seized for forensic examination. Seizure of devices can be done through the police obtaining a warrant under s.8 of the Police and Criminal Evidence Act or they can seize devices where a person is under arrest. 

Where discrepancies arise over the images presence, category or creation, defence solicitors can arrange to view the image or have their own forensic expert analyse the data retrieved by police to check its accuracy. This process can be hugely beneficial for the accused for various reasons: 

• Categories of images may be disputed, this could reduce the number of the more serious categories the suspect is accused of making, possessing or downloading. In turn reducing sentence, or even a prosecution. 
• The age of the persons depicted in the images could be disputed. This is a particularly important in cases whereby the images are borderline and there is the potential for the people in the images to be over the age of 18 but look very young.
• The device user may have no knowledge of the images. Our experts can establish file paths, access to the images, and whether the user has viewed them. What also helps with establishing knowledge is whether any search terms are recovered from the device which if not, would indicate that our client has not be actively searching for unlawful material, making it less likely they had the knowledge of their presence. 
• The overall reliability of police forensics; whether processes have been followed correctly. 

Whether the image or video is real or fake, you can be investigated and charged with serious offences. The maximum sentence for the production, making and distribution of indecent images is 10 years imprisonment. It is important that when you are notified that the police are investigating you for an image offence that you seek legal advice. 

Bail can also be a challenging concept to navigate whilst waiting for the outcome of a police investigation. The conditions a suspect is likely to be subject to can have a profound affect on their family life, relationships and work. Variations to bail conditions can be applied for and our lawyers will advise you on this as part of their advice to you. Ensuring you are not unfairly restricted from daily life is paramount in ensuring you are able to be with your children, partner, and continue to earn an income. 

If you, a family member, or friend has been accused of possessing indecent images, whether they are real images, AI created, cartoons or computer graphics our lawyers are here to help and support you. To arrange a free initial consultation where we will talk through the specifics of your case with you, and advise you please contact our friendly team of dedicated lawyers.