Deepfake Digital Harm and Exploitation Bill

Deepfake Digital Harm and Exploitation Bill First Reading LAURA McCLURE (ACT) (21:34): I move, That the Deepfake Digital Harm and Exploitation Bill be now read a first time. I nominate the Social Services Committee to consider this bill. Imagine as a parent—and I know that’s not hard for a lot of us in this House, because quite a few of us are a parent—just imagine for a second that your year 9, 13-year-old child is off for a day at school and you get the dreaded phone call that that young girl has attempted suicide. This is not just a nice story—or a bad story—that I am making up to draw attention to this bill; this is actually the reality. This has actually happened to some poor family here in New Zealand. Imagine for a second that you are a father who has found out that your daughter has been deepfaked into all kinds of sexually explicit material and, actually, you are in those images as well because they were taken off her social media at family functions. Imagine how that would feel as a parent. Deepfaking somebody into explicit material is one of the worst and most horrible things that you can actually do. We’re not talking about a little bit of fun. We’re not talking about somebody deepfaking you into a bikini for a joke; we’re talking about some of the most horrendous things I have seen, and this is a problem that has been happening right across New Zealand and actually across the world, because we know that the technology is amazing—it’s great, we love it—but it has this dark side and there are individuals who seek to exploit each other with this dark side. There is a grey area in our law. For those families and those victims of this crime, when they have called the police and they’ve gone for help, they’ve found that, while they get support and there is the sympathy side of things, our laws are not up to scratch. Our Harmful Digital Communications Act has a grey area in it, and it does not allow for synthesised images or AI-generated images, and there is that gap in our legislation that is being exploited right now. If we don’t have our police investigating and we don’t have people being held to account, it is basically setting up our young people to say that this is OK, and that this House, this Government, says that it’s OK to do this kind of thing to one another. At the very minimum, we need to say that it is not OK and we need to close that gap. The other thing that happens is there’s no victim support. We know that, if you’re a victim of a crime, you become eligible for Victim Support. Some of these schools and communities are finding themselves up in arms about what to do. They have no support. If you’re the victim, you’re unable to access the likes of ACC to get some counselling and some therapy sessions, so that is another huge reason that we need to make sure that we identify this and close the gap. Madam Speaker, I know that you need me to get on to the specifics of this bill, which is the boring part. In the drafting of this bill, there was a little bit of back and forth. I wanted this legislation to be as clear as possible to ensure that it covers what we want it to cover and doesn’t overreach into areas that we don’t want it to cover, like satire or art, and legitimate uses of AI technology. The select committee will work through the specifics, but I want to ensure the intent behind the legislation is clear and it is on the record. This bill amends the Harmful Digital Communications Act and the Crimes Act. The word which appears as written in the legislation is the one that I got questioned about the most during my consultation with academics and with NGOs, etc. A deepfake is by its very nature not a real recording of the person depicted. It is fabrication, but the harm is no less real. The image is presented to the world as though it were that person, and the victim is identified, humiliated, and exploited just the same. For the same reason, we have defined “subject” to include an individual who appears to be featured or depicted in the recording. The person whose likeness has been hijacked is the victim, regardless of whether they were physically present when the image was generated. That is the whole point of this legislation: to recognise that synthetic, intimate imagery of a real, identifiable person is a violation of that person—full stop. The test for what “appears to be” is not intended to be a technical one. I trust that the courts will interpret this fairly. The intent is that the test is whether a reasonable person would identify the individual subject depicted. If so, that subject has been violated. Now to three terms: “created”, “synthesised”, or “altered”. These are intended to cover actions that make an image appear to depict the person naked, partially clothed, engaged in sexual activity, or in the other circumstances listed. They are not intended to capture trivial edits such as cropping, colour corrections, or the filters that everybody is out there using. The mischief this bill addresses is a creation of those false intimate depictions, not image editing in general. I want to be clear about what consent means in the context of synthetic, created material. Consent means, in this bill, that being depicted in a manner showing naked or in sexual activity or in any other intimate circumstances set out, unless you have given your explicit consent to have this made of you, then that is not consent. The bill is not intended to cover any instances where the subject has consented to both the creation, synthesis, and alteration of the image, because, let’s be real, the technology’s out there, and there might be people that do consent to this. I also want to be clear about what this bill is not intended to capture. It’s not intended to capture clear parody or satire. This bill targets the material that purports to depict a real identifiable person in genuine intimate circumstances, as set out in the provisions, without their consent. Legitimate political satire and comedic commentary, where it’s clear on the face of the work that it’s not a true depiction of the person, fall outside of this scope. That is partially why I have said that this bill is to go to the Social Services and Community Committee, because the previous speaker, Kahurangi Carter, has a bill before that committee around satire and parody. I think that it’s actually quite fitting that both bills get looked at together so that we do make sure that we cover our protections around our freedom of speech, freedom of expression, and freedom to have some fun. I also want to address some of the wider ramifications in the intent regarding them. I’ve heard some suggestions from members about a wider regime, ownership of image, banning of nudify apps etc.,—things that we are seeing around the rest of the world. I don’t intend to state a position on those, other than to say that this is something that we can do right now that would actually have meaningful action. It’s something that we could do right now that says, “You know what? We don’t actually condone this behaviour.” That message alone can be enough of a deterrence to get people to realise the harm that they are causing. In relation to all of these aspects of the bill, I would really like to thank a few people. In particular, I want to thank the Helen Clark Foundation for the many conversations that I’ve had with them. I’d also like to thank the many legal professionals from Victoria University, Canterbury University, and Auckland University for all their insights. Thank you for hosting me with some of your students. It’s been a great pleasure to discuss this particular bill and, actually, artificial intelligence in general. I also want to thank the NGOs that are working in this space, whether it’s around the internet or whether it’s about our kids keeping safe on the internet. I want to thank Hana-Rawhiti Maipi-Clarke, who’s here in the building. It’s not often that you see ACT and Te Pāti Māori working together on a bill. Hana, I want to acknowledge you and thank you for the support that you gave me straight off the bat for this bill. I also want to thank Kahurangi Carter from the Greens, who’s also been an avid supporter of my bill and helping lobby everybody around the House for this bill, which has been great. I want to thank Helen White from Labour. She’s been a great person to talk to about this bill. I know she’s extremely passionate about this area and would like to see some change as well. I also want to thank all of the other parties for your engagement and your support. I know that this bill is getting the support of the House, and that means an awful lot to me, but let’s be real: this means an awful lot to all of our kids and future kids that this will protect. Last but not least, I want to thank, actually, my team for the help that they gave me in constructing this bill and give a special mention to Dray, who’s actually up in the gallery tonight. He would be awfully embarrassed that I’ve mentioned him, but as a young researcher, this as one of his first bills that he worked on and drafted for me. Thank you, Dray, for all your support. I commend this bill to the House. ASSISTANT SPEAKER (Maureen Pugh): The question is that the motion be agreed to. JOSEPH MOONEY (National—Southland) (21:44): Thank you very much, Madam Speaker. I rise to speak on the Deepfake Digital Harm and Exploitation Bill, and I just want to take the opportunity to, first, congratulate Laura McClure for bringing this bill before the House and working on a very difficult issue, one that’s a function of the new technology that’s now available, a very fast-moving technology around artificial intelligence that enables anyone to generate a very realistic image of someone, one that is fake but that people either cannot distinguish or don’t distinguish between that and the actual person. It can cause real harm because these images that circulate do percolate through our digital ecosystem, which, now, increasingly is how people perceive the reality that they exist in, and the perception of other people within the digital ecosystem is that it is increasingly such an important part of our physical world. The National Party will be supporting this bill to select committee, where it will then review further support. It wants to hear from submitters. It wants to look at this really carefully, noting that reform relating to deepfakes needs careful analysis and consideration to avoid unintended consequences and is futureproofed in a fast-moving environment where technological advances have exacerbated the production of deepfakes for a variety of purposes. Deepfakes sit on a continuum of realism, and harm caused by the use can make regulation nuanced and complex. I’m pleased to see this going to the Social Services and Community Committee, of which I’m chair. I look forward to the opportunity that we will have to hear from submitters and to work through what is quite a complex but also very difficult issue in a fast-paced, technological environment. I note that this bill intends to amend the Crimes Act 1961 and the Harmful Digital Communications Act 2015 to expand the definition of “intimate visual recording” to include images of videos that are created, synthesised, or altered to depict a person’s likeness in intimate contexts without their consent. Expanding the “intimate visual recording” definition would add those deepfakes to the existing offences in those Acts relating to creating, publishing, or posting visual recordings. As I mentioned earlier, technological advances mean that almost anyone—and it pretty much is anyone these days—can create highly realistic deepfakes in minutes or less. It’s becoming easier and easier, and this technology is accelerating. It can certainly be used for many beneficial things. As my colleague mentioned before, there are uses where this technology can be relevant to this House in terms of parody, and I think we will be grappling with both of these rather interesting but also complex issues in the current technological framework that we now exist in. However, those deepfake images or videos that are sexually explicit or pornographic are a serious and accelerating issue, particularly for young people and particularly, I think, for young women. It is something that we have a duty to make sure that we can have legislation in place that can acknowledge the technological complexity but also really grapple with that harm, which can be very real despite it being a digital pictorial representation. The harms are real and can be quite significant. I am looking forward to this. The National Party has always had a big priority on victims and on ensuring we protect people who could be victims and preventing victimisation. We’ve done a lot around this in, for example, the stalking and harassment amendment Act, which created a new stalking and harassment offence. This is an important piece that I really congratulate Laura for bringing before the House so that we can hear from submitters and we can take a careful look at the legislation. With that, I commend this bill to the House. HELEN WHITE (Labour—Mt Albert) (21:48): Thank you. It’s a pleasure to rise to support this bill. I’d like to thank Laura McClure for bringing it to the House. Last week, I went to a conference that was about domestic violence, and there is a woman called Nikki Denholm, who is a real expert in this area. I had talked to Nikki and seen a presentation maybe a year ago, and three parts of her presentation were utterly new to me, because this landscape is changing so fast. One of those was about deepfakes. It was about something called artificial intelligence companions. Children and adults are creating these companions, and they use often an image that is of somebody that they might have a crush on or somebody they know, without their consent, and they create a companion, and they do what they want with that companion. It’s pretty creepy. I also heard from her that when they have looked at the research, the mainstream porn sites show that there’s aggression—aggression being slapping, rough sex, etc.,—in 45 percent of mainstream porn. These are things that children are looking at, not because they are actually even looking for them but because they are coming up into their social media content. Finally, I just wanted to talk about something I’ve never heard about before, which is a form of fiction, and it’s called dark romance. Nikki asked the audience—who were people like me or they were workers in the area—whether they’d ever heard of dark romance, and nobody put their hand up. She said if she had asked an audience of 18-year-olds, they all would have been putting up their hands. Those are like fan fictions, and what people are doing is they’re contributing to a story which is basically one of abduction, rape, and then turning the rapist into your lover. That is what is going on in the stories that people are telling. I’m telling those stories because I think it’s important that we face the changing landscape head on, or we’re going to have real trouble. One instance of those is the deepfake instance, but many aren’t. This bill won’t solve all those problems. We are going to have to have some really robust discussions. We are going to have to keep an eye on this area and respond to it very effectively, because we’re in trouble here. We have had, recently, a senior police officer looking at child porn and child abuse that was created by artificial intelligence. I am concerned that some people think that that is somehow more acceptable. We have got a problem in this country that is huge and a problem internationally that is huge. And so, here’s my last story that I think we should know. There is some really good material, if you look, on people who are concerned about the amount of children abused by web camera, and 500,000 Filipino children have been abused by web camera by people in other countries, ordering that—from places like New Zealand, the US, and the UK. It is horrifying and we must, must, must react to these things. I’m grateful that this is coming to my select committee and I can do what I can to get it through as quickly as possible, but I hope that we work cooperatively well beyond this particular contribution, though I value it highly. Thank you. RICARDO MENÉNDEZ MARCH (Green) (21:53): Thank you so much, Madam Speaker. The Green Party is supporting the Deepfake Digital Harm and Exploitation Bill. I want to acknowledge Laura McClure, who, quite briefly, raised this issue in Parliament now a while back and is having the bill being read for the first time. I think what we can all agree on is that creating images that are synthesised or altered to appear to be intimate visual images, with the design to harm or shame someone, is a form of violence. I think this is something that the House can stand behind to actually stamp out and get rid of, hopefully. This bill does amend the Crimes Act and the Harmful Digital Communications Act to basically criminalise the use of these images for the purposes of harming other people. Part of what the Green Party is particularly interested in being able to unpack at the select committee—hopefully constructively with other political parties and submitters, as well as officials—is the penalty for the offence and looking at the evidential basis behind it, as well as looking at, particularly, the issue around how can we also support young people, and particularly, I will say, young men, to move towards a place of a culture where the patriarchal norms that have led to so much violence upon women and other gender minorities can be addressed. The member Laura McClure talked about the technology that enables this violence as being amazing. I think, ultimately, what we have here is not just an issue of a lack of criminality, but one of a culture shift that needs to happen, as well. Ultimately, these are two issues that, for us in the Greens, we want to make sure that we can adequately look at in the select committee stage. So the Green Party is supporting this bill. We want to again reiterate that for us, this is about addressing a form of violence that can lead to shame, lifelong harm, and—worse—loss of life. We acknowledge that, with emerging technologies, this form of gender-based violence—or gender-based violence more broadly, sorry—can evolve and new ways of enacting violence upon people can be created with new emerging technologies. So once again, we commend the member for her constructive engagement with our political party on this issue, and we look forward to working with her and others in the select committee stage. ASSISTANT SPEAKER (Maureen Pugh): Members, this debate is interrupted and is set down for resumption next sitting day. The House stands adjourned until 2 p.m. tomorrow. Debate interrupted. The House adjourned at 9.57 p.m.