Question reference: S6W-26994
- Asked by: Sharon Dowey, MSP for South Scotland, Scottish Conservative and Unionist Party
- Date lodged: 24 April 2024
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Current status: Answered by Angela Constance on 7 May 2024
Question
To ask the Scottish Government what measures are in place to (a) track and (b) prosecute cases involving the distribution, publication, or sale of sexually explicit deepfake images, particularly in cases where the depicted individuals did not consent to such depictions.
Answer
Depending on the facts and circumstances of the particular case, there are a range of offences that may be used to prosecute cases where someone publishes, sells or distributes sexually explicit images of a person without their consent.
In particular, the offence of disclosing or threatening to disclose an intimate photograph or film at section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 can be used to prosecute such behaviour where the disclosure, or threat to disclose the image, would be likely to cause a person featured in the image to suffer fear, alarm or distress, and the accused either intended to cause such an effect or else was reckless as to whether their behaviour would be likely to have such an effect on the victim.
The offence provides that a person is in an 'intimate situation' if the person is engaging or participating in or present during an act which a reasonable person would consider to be a sexual act which is not of a kind ordinarily done in public, or the person's genitals, buttocks or breasts are exposed or covered only in underwear. Specifically, the offence provides that a photograph or film includes any material originally captured by photography or by making a recording of a moving image, whether or not it has been altered in any way. As such, the offence applies in respect of images that have been digitally manipulated so as to appear to depict a person as being in an intimate situation even if the original photograph does not do so.
Other offences which may be relevant include the offence of threatening or abusive behaviour at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and, where the images are published or shared via the internet, the offence of abuse of a public electronic communications network at section 127 of the Communications Act 2003.
As the legislation does not explicitly distinguish between manipulated and unmanipulated photographs or films, it is not possible to separately identify cases relating to the disclosure of so-called 'deepfake' images.
It is an independent operational matter for Police Scotland to enforce criminal law and it is an independent operational matter for Crown Office to make decisions in respect of prosecutions.