Labour’s deepfake crackdown sounds tough, but the tech, and the criminals using it, are already out of reach

Creating or requesting the creation of non-consensual intimate images with AI will become a criminal offence this week expanding The Data (Use and Access) Act passed last year. And apps that allow users to create nude fake images of people will be criminalised by adding to the Crime and Policing Bill currently going through Parliament.

This is the Government’s ‘bold’ answer to those like myself concerned that any Ofcom action against Elon Musk’s X platform over its Grok AI tool will make little difference to the problem which has become the subject of such media hysteria in recent days. Even if as a result of its investigation, Ofcom applies for a ‘service restriction order’ against Grok, X will likely be able to continue its business with a fine and mitigating steps. It will no doubt say it does not knowingly allow people to generate sexual images and has systems in place to identify illegal images being shared and report them to the police, which it does.

The new legislative proposals do at least attempt to deal with the variety of apps out there that offer nudification tools.  The trouble with the hoo-ha of recent days of course is that the deepfake technology is not limited to Elon Musk's empire.

There has been a proliferation of available tech tools facilitating this behaviour – yes Grok AI is one but Crush AI, Undress AI and AINUDEZ are all used by the culprits and there are many more.  Together they have contributed to a world where online sexual offending is the fastest growing area of crime.

As a criminal defence solicitor specialising in sexual offences, I have seen an exponential increase in the number of cases involving AI and deepfake technology in recent years. I have come across multiple instances where a person is accused of using technology to create sexual abuse images of children, or of using deepfake AI to generate content that is used to extort, threaten or humiliate others.

Regardless of the new offences Liz Kendall has announced, unfortunately, I am not convinced a phenomenon like this can ever really be put back inside its box.

Tech companies are savvy at arbitraging the system, users are savvy to circumvent any restrictions, and sadly the resources available to the police and other bodies to detect, investigate and prosecute the misuse of these technologies is woeful given the scale of the problem. Even if the police did want to investigate every allegation of Grok being used to nudify or sexualise adult users of X in the U.K. over the past few weeks, they would simply not have the capacity.

Furthermore where is the deterrent if they did? Long before AI came into existence we have had laws banning indecent images of children. Making, possessing and distributing child abuse material can result in a maximum sentence of 10 years in prison. However, with a prison estate under pressure, successive Governments have watered down sentencing guidelines such that it is now almost impossible to be sent to prison for making indecent images of children. The latest Sentencing Bill being debated in the House of Lords will do nothing to reverse this trend.

Forgive me if Im not sold on Liz Kendall’s latest pronouncement therefore. But to me Labour politicians pledging to tackle deepfakes is akin to their promises to smash the gangs. The issue is already beyond Government grip.

As I write this article, thousands of men will be chatting online about grooming children and sharing images of abuse. They might be joining one of the numerous chat groups on Kik, for example, and within seconds might be sharing images of children being raped.  The police occasionally catch the odd few perpetrators when undercover officers are involved, but this is tip of the iceberg stuff. All chats are encrypted, so there is no detection.

These men wont be put off by new UK legislation. Nor will the tech companies planning lucrative AI driven business models. Before long I have no doubt that we will all be able to star in our own porn movie or drop images of friends into one. Even if this is banned in the UK, the tech will be available in another jurisdiction or on the dark web where anything can be bought and sold at the click of a button.

Those directing their fury at X are deluded. In my opinion, other platforms are far, far, worse for illegal activity and try as Governments might, there is very little that can be done to stop them.

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Marcus Johnstone is Managing Director of PCD Solicitors, who specialises in criminal defence for those accused of sex crimes

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