Deepfake Misuse Offences

What is deepfake misuse and how are allegations prosecuted?

Deepfake technology has moved with extraordinary speed from a curiosity to a criminal law concern. In the space of a few years, what required specialist technical knowledge to produce can now be generated by anyone with a smartphone and a free application. The law has struggled to keep pace, but it is catching up quickly, and the consequences for those accused of creating or sharing deepfake content are increasingly serious.

We act for the defence. This blog is written for people who have been accused of, investigated for, or charged with a deepfake-related offence. It explains what the law currently says, what the prosecution must prove, and what a specialist criminal defence solicitor can do. If you have been contacted by the police or believe you are under investigation, the most important step you can take is to seek legal advice immediately.

What is a deepfake?

A deepfake is an image, video or audio file created or manipulated using artificial intelligence and deep-learning technology to depict a real person in a scenario that did not occur. The term covers a wide range of content, from relatively crude face-swaps to highly realistic fabricated footage that is genuinely difficult to distinguish from authentic material.

The criminal law in England and Wales is currently focused primarily on deepfakes that are sexual or intimate in nature, though other applications, including deepfakes used in fraud and financial crime, are increasingly attracting prosecution under different statutory frameworks. This blog addresses the intimate image context, where the legislative changes have been most rapid and where allegations are becoming most common.

What does the law currently say?

The law in this area has been substantially reformed in recent years and it is important to understand the current position clearly, because many people facing investigation are unaware of how far the legislation now extends.

Sharing intimate deepfakes. It has been an offence to share or threaten to share intimate images, including deepfakes, since the Online Safety Act 2023 inserted section 66B into the Sexual Offences Act 2003. Sharing without consent carries a maximum sentence of six months if convicted and cases are heard at the magistrates court. Where the sharing was intended to cause distress, alarm or humiliation, or was for the purpose of sexual gratification, the maximum sentence rises to two years on indictment.

Creating intimate deepfakes. This is the most significant recent development. Section 138 of the Data (Use and Access) Act 2025 amended the Sexual Offences Act 2003 to insert section 66E, creating a new offence of intentionally creating a purported intimate image of another adult without their consent, or without reasonable belief in their consent. Critically, sharing is no longer required. The act of creation alone is now sufficient to establish criminal liability. The offence carries an unlimited fine on conviction or up to 6 months custody.

Deepfakes created that involve indecent images, such as those involving children, will be governed by current laws. This means the maximum sentence for producing or creating category A indecent images can carry a sentence of up to 9 years imprisonment.

Requesting a deepfake. The legislation also criminalises requesting or causing another person to create a non-consensual intimate deepfake. This means that commissioning such content, even without creating it directly, is an offence in its own right.

What does the prosecution have to prove?

Understanding the elements the prosecution must establish is the starting point for any defence. For the creation offence under section 66E, they must prove:

• That an image was intentionally created
• That the image is a purported intimate image of a real adult
• That the person depicted did not consent to its creation
• That the defendant had no reasonable belief that consent had been given

Each of these elements is a potential ground of challenge. Intent is a question of fact. The definition of a purported intimate image has specific legal meaning and is not infinitely elastic. Consent, and what constitutes reasonable belief in consent, will be hotly contested in many cases. The relative novelty of these offences means that the courts are still developing their approach to the evidential questions that arise.

How are deepfake allegations investigated?

Deepfake investigations are digital investigations. As we have explored in our blog on how tech evidence works in criminal proceedings, the police have extensive forensic tools for extracting data from devices, recovering deleted material, and tracing the origin of digital content. In deepfake cases, investigators will typically look at:

• Devices and accounts used to generate or access AI image tools
• Browser history, app usage and search records
• Cloud storage and messaging platforms
• Metadata attached to images, including creation timestamps and device identifiers
• Communications with third parties, whether requesting, sharing or discussing the content

Digital evidence in this area is technically complex. Images may have passed through multiple platforms. AI tools leave different forensic traces. Attribution, establishing that a particular person created a particular image on a particular device, is not always as straightforward as the police presentation of the evidence suggests. A specialist defence solicitor will instruct independent digital forensics experts to scrutinise the prosecution’s evidence where the technical basis for attribution is in question.

What if the allegation involves a sexual offence?

Deepfake allegations frequently arise alongside other sexual offence charges, including offences under the Sexual Offences Act 2003 relating to voyeurism, indecent images, or the distribution of intimate images more broadly. Where a case involves child abuse material generated using AI, the courts have made clear that AI-generated images are treated with the same gravity as real abuse images, and the sentencing consequences reflect that.

Where deepfake allegations arise in the context of a relationship breakdown or a domestic setting, they may also be charged alongside offences of controlling or coercive behaviour. If you are facing a combination of charges, the importance of specialist legal advice is magnified further. Our team has extensive experience in sexual offence defence and understands how these cases develop and how they need to be managed from the very earliest stage.

What should you do if you are under investigation?

Do not speak to the police without a solicitor present. This applies whether you have been arrested or are attending a voluntary interview. The law in this area is new, the evidence is technical, and the consequences of an unguarded or poorly advised interview are serious and can be irreversible.

Do not attempt to delete material from devices or accounts. Attempting to destroy evidence is a separate offence and will be treated by the court as a significant aggravating factor. Investigators routinely recover deleted material, and the attempt to remove it is often more damaging than the material itself.

At Old Bailey Solicitors, we represent clients facing the full range of sexual and image-based offences, including deepfake allegations. This is a rapidly developing area of law, and the prosecutorial approach is still evolving. We examine the evidence with care, instruct specialists where the technical picture requires it, and ensure that the full legal framework is understood and applied correctly. Early instruction gives us the best platform from which to build an effective defence.

Bespoke advice, when you need it the most. Contact Old Bailey Solicitors today.