In April 2024 Directive (EU) 2024/1385 was published by the European Parliament and the Council, establishing minimum rules related to the criminalization of certain forms of violence against women and domestic violence. Among its most relevant innovations for the digital context is the obligation for Member States to criminalize the creation and dissemination of non-consensual sexual deepfakes—a practice whose proliferation has raised serious concerns regarding digital dignity, privacy protection, and the role of platforms in spreading these practices.
The directive stipulates, in Article 5, that the dissemination of images or videos with sexually explicit content that has been falsely generated, particularly through artificial intelligence, should be punished when done without the consent of the person depicted. Deepfakes refer to digitally synthesized videos using deep learning techniques that allow the realistic replacement of a person’s appearance and voice with those of another. The provision targets images created through digital manipulation (for example, superimposing the victim's face on a body or sexual act they did not engage in), and does not require the content to be real—only that it appears so and is disseminated.
This approach marks a significant legal advancement by recognizing that the harm caused by digital artifacts can be as severe as that caused by genuine content. From a doctrinal perspective, it raises relevant questions regarding the materiality of the offense, the structure of subjective attribution, and the criteria for penal offensiveness in a digital environment.
The entry into force of the directive requires Portugal and other Member States to transpose it by June 14, 2027, which will necessitate amendments to the Penal Code or specific criminal legislation, as there is currently no specific provision addressing non-consensual sexual deepfakes. Therefore, a legislative movement at the European level is expected to align internal regulations with the directive.
It is important to note that while the Digital Services Act (DSA) already imposes obligations on platforms to remove illegal content and prevent systemic risks, it does not define the creation or sharing of such content as an offense in itself.
The interaction between the new European penal framework and the diligence duties of platforms under the DSA highlights an increasing trend of co-regulation in the digital space, where the protection of fundamental rights requires coordinated action between public and private entities. In this context, the criminalization of non-consensual sexual deepfakes constitutes an important step in the creation of a secure digital citizenship that respects human dignity.
Image source: Organization for Social Media Safety
