AI-Generated Images Fall Under the Criminal Code

In a case involving charges pressed for publishing, distributing, and possessing sexual representations depicting minors, the defendant appealed the trial court’s decision, arguing that there was no certainty that the images portrayed real people and suggesting that they could have been generated by artificial intelligence (AI). He argued that the aggravated form of the offense is intended to protect real victims and should not apply to fictional or simulated sexual depictions of minors.

In this regard, the Court of Appeals highlighted that—since the COVID-19 pandemic—material of children’s sexual abuse has increased dramatically, with AI contributing, given how easy it is to generate such content. AI allows, for example, manipulating images of minors by undressing them or altering them to create sexual content, thus significantly expanding the amount of such material in circulation.

The Court held that various international instruments—such as the Convention on the Rights of the Child; the Second Optional Protocol to said Convention; the Protocol on the Sale of Children, Child Prostitution, and Child Pornography; and the 2001 Budapest Convention on Cybercrime—inspired the 2018 amendment to article 128 of the Criminal Code. The purpose of the amendment was to align domestic legislation with international standards for the protection of children and adolescents against all forms of sexual exploitation. The amended provision uses the term “representation,” which the Real Academia Española defines as “image or idea that substitutes reality,” and lists as synonyms “symbol, embodiment, personification, image, emblem, figure, effigy” and “idea.”

Therefore, following a semantic interpretation of article 128 of the Criminal Code in line with international standards, the Court concluded that any representation—real or simulated—of a minor in an overtly sexual context falls under the scope of the article, regardless of whether it was created using technological tools such as AI. Accordingly, the Court of Appeals rejected the defendant’s appeal and upheld the lower court’s decision.