It is reported that child sex offenders are now making fake images of child abuse victims using Artificial Intelligence software, which, once properly instructed, can generate an image of a child in a pornographic pose, when that image is not real but fake. The questions are, can anyone be prosecuted for producing such images, who is the victim, and could the creators be sued if, say, the image is a remarkable similarity to a real girl?
The images in question are being circulated on the Dark Web, but some are being distributed on mainstream sharing sites like Patreon even though they have insisted that they have a zero tolerance policy for such images.
The AI software being used to create the images is called Stable Diffusion, the purpose of which is to create art, or graphic design. The owners of that product are horrified that it is being manipulated for illegal purposes.
The idea is, apparently, that the creator gives the software word prompts to guide it, then leaves it to create the images. The rape of babies and toddlers are apparently being created by sex offenders using the software.
What’s Happening in Japan?
An image sharing site in Japan called Pixiv is being used, apparently, because sexualised cartoons and pictures of children are not illegal, apparently in Japan, even though the owners of Pixiv are anxious to emphasise that such behaviour is completely illegal and against their code of practice. They are taking active steps to remove it from their servers.
Patreon
Offenders are apparently creating over 1000 images a month. Links set up in Patreon direct users to content for which there is a subscription of as little as $8.30 (£6.50) per month. It said the account was immediately removed. Patreon said it had a “zero-tolerance” policy, insisting: “Creators cannot fund content dedicated to sexual themes involving minors.”
Although the images are artificial, within the platforms are links to “the real stuff”, which give access to images of real child abuse, which is clearly illegal.
Is it Illegal Enough to lead to Prosecution?
A “pseudo image” generated by a computer which depicts child sexual abuse is treated the same as a real image and is illegal to possess, publish or transfer in the UK.
Section 160 Criminal Justice Act 1988 makes it an offence punishable with a maximum of 5 years imprisonment, or a hefty fine, or both,
“for a person to have any indecent photograph or pseudo-photograph of a child in his possession.”
S.160 Criminal Justice Act 1988
Interestingly, the words “pseudo-photograph” were added in 1994, so criminals must have been trying to get round the problem by using cartoons or the like before, hence the loophole being covered up.
The National Police Chiefs’ Council (NPCC) lead on child safeguarding, Ian Critchley, said it would be wrong to argue that because no real children were depicted in such “synthetic” images – that no-one was harmed.
He warned that a paedophile could, “move along that scale of offending from thought, to synthetic, to actually the abuse of a live child”. It is said that all paedophiles start with fantasy, and pornography before they move onto real victims, hence the law on possession of child abuse images, which can be a fall back if the police cannot prove the substantive offence.
The Police have also warned that their precious time will be taken up trying to establish if the image is real or fake, so clever is the software.
Who is the Victim?
Does it matter if the police cannot find a victim? Answer no because the Police owe a duty to the public to prosecute any offence which they discover. Sometimes, however, there has to be a victim, where, such as real child abuse, the evidence comes from the mouth of the victim, and without that evidence there can be no prosecution.
In the case of pornography, however, whether or not there is an identifiable victim will and able to give evidence, the image, artificially created or not, is evidence of the crime. What the police have to prove, however, is possession so they must be able to trace it back to the publisher of the image digitally, so when it is on the dark web, that job is more difficult, but possible with expert technical departments. The server may be in Russia, for example, even though the creator is in England.
Is there any civil liability, and can someone be sued?
In a civil case, unlike criminal proceedings where the purpose is punishment, the object is the payment of compensation. Rather than the state under the title of Rex (for the king who is the sovereign head of the judicial system) v. the guilty person or company, a civil case is brought by the person who has suffered loss (the Claimant) against the person to blame for the act complained of (the Defendant).
Who is the Claimant? – the object created by the artificial intelligence is fictitious, presumably, so there is arguably no Claimant to bring the action. If, however, an actual child is used as the basis of the image, and has been psychologically damaged, or worse, actually abused for commercial gain as part of a pornography business, then possibly there is an identifiable Claimant.
Who is the Defendant? – at first glimpse, the answer is obvious. The digital creator, who provided the word prompts must be the person to sue, but what if the actual abuser is not the artist, and the server is situated in an obscure country without an efficient legal system. The problem becomes complex because many individuals have contributed to the civil wrong (or tort) being committed.
Under present law, platforms who host the images are not regarded as publishers, and therefore not liable to the victim of the abuse, something which the Online Safety Bill, which has been 5 years in the making, seeks to correct. The Bill, however, concentrates upon what steps can be taken against the big social media platforms to make them liable to punishment rather than providing a civil route to compensation, should harmful content or pornographic material appear on their platforms. The length of time the Bill has taken to reach the statute book illustrates the inordinate power which the big players such as Facebook have.
What civil wrong has been committed? – there have been a number of texting or “sexting” cases where the civil law has had to adapt to cope with advancements in technology, where a crime is not committed by the physical force of an assault, but the effect of harmful words or images transmitted over the internet. Ironically resort has been had to a case from the 19th century called Wilkinson v. Downton which established the principle that where a defendant has wilfully committed an act or made a statement calculated to cause physical harm, and which does cause physical harm (including psychiatric injury), it is actionable.
The Online Safety Bill
According to the government website
The Bill will make social media companies legally responsible for keeping children and young people safe online.
It will protect children by making social media platforms:
https://www.gov.uk/guidance/a-guide-to-the-online-safety-bill#a-guide-to-the-online-safety-bill
- remove illegal content quickly or prevent it from appearing in the first place. This includes removing content promoting self harm
- prevent children from accessing harmful and age-inappropriate content
- enforce age limits and age-checking measures
- ensure the risks and dangers posed to children on the largest social media platforms are more transparent, including by publishing risk assessments
- provide parents and children with clear and accessible ways to report problems online when they do arise
Summary
This new development is just the next step in a long line of ways in which paedophiles (or more accurately child sex offenders) are trying to evade detection, and stay one step ahead of the prosecuting authorities. In the old days they used to escape on canals, then flee the country to less regulated regimes, and now Artificial Intelligence. What next?
When I first heard the story on the Today programme, I was somewhat incredulous that technology had advanced to such a degree that one could create a digital image using word prompts that could pass as a real human being. The advancement of Artificial Intelligence is no longer other worldly, but a threat to modern day society in so many different ways. It has to be controlled, because, if not, it will not only cause untold damage to children, who are our future, but ruin society by taking over the work presently done by human beings. Whilst this story sounds like something off Tomorrow’s World, if you are old enough to remember that programme, it is the tip of the iceberg, and, I fear, the shape of thing to come.
