The rise of deepfake technology has sparked critical legal questions, particularly when it comes to creating and distributing pornographic content without consent. In Canada, the legal framework around this issue is complex and still evolving, relying primarily on existing criminal laws rather than specific legislation targeting deepfakes.
Non-Consensual Distribution of Intimate Images
Under Section 162.1 of the Criminal Code, it is a criminal offence to distribute intimate images of a person without their consent. This law was introduced in 2015 to address the growing issue of “revenge pornography,” where private intimate images are shared online without the subject’s permission. However, deepfakes may fall into a grey area. For an image to qualify under this law, it must depict a real person in an intimate situation. Since deepfakes are digitally altered or fabricated content, they might not meet this definition, making prosecution under this section uncertain. Despite this limitation, the law demonstrates the importance of consent in sharing intimate content.
Child Pornography Laws
Deepfake content involving minors is unequivocally illegal under Canada’s stringent child pornography laws. Relevant provisions include Section 163.1 of the Criminal Code, which prohibits creating, possessing, distributing, or accessing any material that depicts a minor in a sexually explicit manner. Courts have taken a broad view of this law, recognizing that even manipulated images—such as superimposing a child’s face onto explicit material—constitute child pornography. This interpretation ensures that anyone creating or sharing such content faces severe penalties, including potential imprisonment, reflecting society’s zero-tolerance approach to the exploitation of minors.
Criminal Harassment and Extortion
Using deepfake pornography to harass or intimidate someone could lead to charges of criminal harassment under Section 264 or extortion under Section 346 of the Criminal Code.
Criminal Harassment (Section 264): This law makes it illegal to engage in behavior that causes someone to reasonably fear for their safety or the safety of their loved ones. For example, repeatedly sharing deepfake content online, sending it to the victim, or threatening to release it can create a pervasive sense of fear and distress, fulfilling the criteria for harassment. The law is designed to protect individuals from sustained and harmful patterns of behavior.
Extortion (Section 346): This section criminalizes using threats to obtain something, such as money, property, or actions, from another person. If someone creates a deepfake and threatens to release it unless the victim complies with specific demands—such as paying money or performing a task—this is considered extortion. The law covers not only physical threats but also threats to a person’s reputation, making it highly relevant for deepfake cases.
Legislative Gaps
Canada’s criminal laws lack provisions specifically targeting the creation of deepfakes, unlike jurisdictions such as California, which have enacted deepfake-specific legislation. For instance, California’s laws prohibit the distribution of malicious deepfakes intended to harm or deceive individuals, particularly in political or pornographic contexts. While Canadian laws like those addressing harassment, extortion, and child pornography provide some protection, they do not fully account for the unique challenges posed by deepfakes. Efforts to modernize the law, such as debates on Bill S-12 in 2023, aim to address these gaps by proposing stricter regulations and clearer definitions of digital harm.
How Collett Read LLP Can Help
If you have criminal charges stemming from the creation or distribution of deepfakes, our experienced team of criminal defence lawyers at Collett Read LLP is here to assist you. We will thoroughly examine the specifics of your case, review the evidence presented by the Crown, and vigorously advocate on your behalf. Our goal is to ensure a fair and just legal process while protecting your rights every step of the way.
Contact us today at 905-541-2228 or fill out our intake form for a free consultation.
