US: New federal law criminalises intimate-image abuse
Power & Associates candidate attorney Phenyo Sekati unpacks the provisions of the newly signed TAKE IT DOWN Act in the United States, discussions on the balance between tackling serious offences and protecting digital freedoms, and the comparative situation in South Africa.
Introduction
On 19 May 2025, US President Donald Trump signed the TAKE IT DOWN Act (“the Act”) into law. The TAKE IT DOWN Act, which stands for the “Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act” criminalises the unauthorised distribution of intimate images – commonly known as non-consensual intimate image (“NCII”) abuse. The Act extends to AI-generated deepfake content, and requires online platforms to implement swift removal mechanisms.
Key provisions of the Act
Under the Act, it is unlawful for individuals to knowingly publish either an “intimate visual depiction” or a “digital forgery” of an identifiable person on an “interactive computer service.” The term “interactive computer source” broadly encompasses most online platforms and servers, as it refers to any information service or system that enables multiple users to access a computer server. The Act distinguishes between offences involving adults and minors, with stricter liability imposed for cases involving minors. For cases where all parties are adults, prosecution requires proof of harm, including psychological, financial, or reputational damage. In contrast, offences involving minors are presumed to be inherently abusive and the need for proof of harm falls away. Penalties range from fines to multi-year imprisonment.
Beyond criminalising nonconsensual distribution, the Act makes it a requirement for platforms facilitating user-generated content to establish a notice-and-removal process by 19 May 2026. This requirement aims to ensure that individuals are able to request the deletion of unauthorised intimate images within 48 hours of submitting a removal request to the relevant online platform. These platforms will also be required to provide clear and accessible information on their notice-and-removal process. Additionally, platforms acting in good faith to remove such material are protected from liability, even if the intimate image is later found to be lawful.
Concerns about the Act
Although a wide range of organisations have signaled in support of the Act, some digital rights organisations and activists have raised concerns about the Act’s potential restriction of the rights to freedom of expression, privacy, and due process. Some fear that publishers may pre-emptively remove lawful content, including consensual LGBTQI+ intimate material, to avoid liability and further note that the broad takedown system could overextend the Federal Trade Commission’s regulatory power. There are also concerns that platforms may struggle to verify claims within the strict 48-hour window, which could lead widespread automated removals with minimal oversight. Lastly, critics note that because the Act requires platforms to have visibility over all hosted content, including encrypted messaging, platforms might end up reviewing private messages or abandoning encryption altogether.
The Act’s vague definitions could also enable abuse. Although the Act provides definitions for “intimate visual depiction,” “digital forgery,” and “identifiable individual,” it lacks clarity on key concepts such as the threshold for “knowingly” publishing content, and the precise definition of “publish.” This ambiguity is important because the Act provides exceptions for content published in good faith for law enforcement purposes, legitimate medical, scientific, or educational reasons, and disclosures intended to assist an identifiable individual. It also exempts cases where a person possesses or publishes a digital forgery of themselves engaged in nudity or sexually explicit conduct. Without clear guidance on what it entails to knowingly publish content, individuals accused of violations may challenge liability by arguing a lack of intent or awareness. Similarly, an unclear definition of “publish” leaves room for debate over whether reposting, sharing, or embedding content falls within the Act’s scope.
Insights for South Africa
South Africa faces similar challenges related to NCII abuse, yet its legal frameworks remain fragmented and enforcement is a challenge. Current laws offer partial protections against image-based abuse. The Cybercrimes Act criminalises the sharing of intimate images without consent, including deepfake manipulations, with section 16 specifically penalising the distribution of “imitated images.” The Films and Publications Amendment Act requires internet service providers to prevent children’s exposure to harmful materials and grants enforcement authority to the Film and Publication Board (FPB) to investigate platforms distributing illegal content. The Protection of Personal Information Act (POPIA) ensures privacy protections by restricting the unauthorised processing of children’s personal information, and the Criminal Law (Sexual Offences and Related Matters) Amendment Act defines child pornography to include AI-generated depictions, reinforcing that simulated content can still be prosecuted.
Despite these legal protections, enforcement remains inconsistent, and South African laws lack explicit provisions mandating platforms to swiftly remove harmful content. While the country does not face a legal vacuum, policymakers may need to refine existing laws to incorporate structured removal mechanisms and digital enforcement strategies.
Conclusion
As digital threats continue to evolve, it may be time for South Africa to refine its approach to online safety to ensure platforms are held accountable while safeguarding digital rights without imposing excessive restrictions or censorship. The recent legislative developments in the United States align with broader global efforts to enhance platform responsibility, as seen in the European Union’s Digital Services Act and the United Kingdom’s Online Safety Act 2023. These initiatives contribute to the ongoing discussion of whether more countries, including South Africa, should implement similar measures to strengthen platform accountability.
- The Act is accessible here.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].
