Artificial Intelligence (AI) and Child Pornography

The internet and AI technology have made it easier to commit certain crimes and has led to the creation of new crime that either did not exist or was far less common prior to the internet. One example is child pornography offences. The internet has made it infinitely easier to trade and consume child pornography material by making it available to anyone, anywhere, anytime. Artificial Intelligence technology has further added to the growing problem by introducing the technology necessary to create deepfake images of people, including children, engaged in sexual activity.

AI technology has made it possible for individuals to create child pornography material without needing access to an actual child. Courts have begun to hear cases involving individuals accused of child pornography offences involving AI created images of children that look incredibly authentic.

In the past, the court has heard child pornography cases where the material met the definition of child pornography outlined in the Criminal Code but did not involve real people. Typically, this material involved cartoon images of underage individuals engaged in sexual activity, or drawings of same. AI technology has taken this type of child pornography material to a whole new level by allowing people to create ultra-realistic, AI generated images of children engaged in explicit sexual activity, or explicit images of nude children. In some cases, it is extremely difficult to tell an AI generated photo from an authentic photo.

Regardless of whether a real child was used to create the material, AI generated imagery depicting a nude child in certain circumstances, or a child engaged in sexual activity will meet the definition of child pornography outlined in section 163.1 of the Criminal Code. Per that definition, any material whose dominant characteristic is the sexual organ of a child, or depicts a child engaged in sexual activity, will meet the definition of child pornography. This includes material created by electronic means, including AI technology.

This means that an individual charged with child pornography for consuming or creating AI generated child pornography will face the same charge as someone who consumed or created child pornography involving a real child. While a real child being involved would be an aggravating factor, those convicted of child pornography offences involving AI generated images will also face serious penalties. As of late 2023, there are mandatory minimum jail sentences in the Criminal Code for child pornography offences. As a general rule, those convicted of child pornography offences are sentenced to a period of custody. An individual convicted of consuming or creating AI generated child pornography could, and likely will, face several years in custody.

In addition to likely serving time in prison, those convicted of engaging with AI generated child pornography will also face other repercussions as a result. The most significant of which is a SOIRA order. In Canada, those convicted of certain sexual offences, including child pornography offences, will be ordered to registered as a sex offender under the Sex Offender Information Registration Act. The sentencing court will make at the order at the time the offender is sentenced. Once the order is made, the offender will be required to register under SOIRA and report certain information to the government. They must report once a year for the duration of the order, which can last between ten years and life. An individual found guilty of AI generated child pornography will also likely face negative consequences in other areas of their lives including job prospects and travel.