Are Indecent Images Produced by AI Illegal?

Real pictures of Children Used to Create AI Sexual Abuse Images

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.

The law has adapted to enable the prosecution of those in possession of computer generated images, cartoons and manga drawings, any person found in possession of child abuse material of this nature could be prosecuted for possession of a prohibited image of a child. The image must depict images of a child which are intimate or depict sexual activity, which are pornographic and also grossly offensive, disgusting or of an obscene character.

What is AI technology?

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.

From the use of software alongside AI technology images are being uploaded and modified by computer intelligence to display illegal images and videos.

What are indecent images?

An indecent image is a sexualised photo, video or data which is capable of being turned into an indecent image or video that depicts a person under the age of 18 years old in a sexualised way.

There are three categories of indecent images:

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

What is a Prohibited Image?

A prohibited image is a none photographic image, usually computer generated such as cartoons, manga images and drawings. Referred to as pseudo images, AI produced indecent material would fall under offences concerning prohibited images. But care must be taken that the image is in fact AI, as some images created this way can look very real.

It is an offence under section 62 of the Criminal Justice Act 2009 for a person to be in possession of images of a child which are intimate or depict sexual activity, which are pornographic and also grossly offensive, disgusting or of an obscene character.

De-clothing Apps

De-clothing apps started to emerge in 2019 on social media sites such as Telegram, but the increasing use of technology through AI has allowed such apps to become much more effective in creating realistic fake nude images. Although adults are aware of the apps and its use to generate indecent images, there is a growing trend amongst children using the app and not realising that to modify a photo of their friend so that they appear to be wearing no clothes is in fact a criminal offence.

Sexual offending between youths, particularly exchanging of indecent images is growing, understanding the offending around sexual images is something young people lack and therefore, instructing a lawyer with specialisms in dealing with youth offending is crucial to ensure the police and CPS deal with the case sympathetically and correctly.

What Will Happen if I have AI Indecent Images

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.

The suspect will also be interviewed, this can take place before an examination and, where unlawful material is found, after the examination. This will allow the suspect to explain or give an account for the material being present. It will also provide an opportunity for a defence to be raised or where there is a disagreement with the evidence, this may also be raised.

Defending an Indecent Image Allegation

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.

What to do if you are accused of an indecent image offence

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.

Our lawyers have been defending indecent image offences for over 15 years, and can help to advise and guide you through what is a very difficult and challenging process. Our team apply a very careful approach in such sensitive cases, and will scrutinise the evidence of the CPS at all stages. We also promise to deliver honest and realistic advice, therefore, you know with us exactly where your case is likely to end up and we can work together to achieve the best possible outcome.

Whilst under investigation you may have the added pressure of your regulatory body or employer to answer to. We extend our services to liaising with third parties which due to the nature of the investigation have their own enquiries to make, this includes social services, colleges, schools, universities and places of work.

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.

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