Image source: https://techcrunch.com/2020/07/16/europes-top-court-strikes-down-flagship-eu-us-data-transfer-mechanism/

This article has been written by Jai Khurana, pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. It has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

“Technology is a useful servant but a dangerous master”

-Christian Louis Lange

We live in a world full of constant advancements in technology. No area has been left unexplored and technological development is at its pinnacle. However, a question arises:, is technology being used for the welfare of all human beings? If  technology has a dark side, why are we still  working to develop and reach further heights in that specific field? Let’s take an example, imagine that you are working and living a normal life, but one day while exploring the vast world of the internet, you find yourself involved in adult, graphic and demoralizing acts which you had never consented to or did.

Imagine another situation where the sole credit of your acts has been snatched by an anonymous person who just made a face replacement of his face by your face. This kind of situation may trigger astonishment and fear for many. With the advancement of technology, this hypothetical situation, however, has come to be true.

What is deepfake?

A deepfake in layman’s language can be defined as when there is deep faking of someone’s identity by using multiple tools like photoshop. Deepfake actually found the terminology and was brought to light in 2017, when a Reddit user had used the technology to swap the face of celebrities with adult stars. The meaning of deepfake can be derived from the term itself- ‘Deep’ is Deep learning and ‘fake’ is faking it out. Deepfakes use facial mapping technology and AI that swaps the face of a person on a video with  the face of another person. 

One must have seen the deepfake videos ranging from the speech of Mr. Barack Obama delivering fake news to Mr. Mark Zuckerberg stating that Facebook is exploiting their users’ information and infringing privacy. It is nearly impossible to find any discrepancies and one can be easily convinced that it is genuine. This has led many countries including America to encourage research in deepfake detection technologies and has placed deepfake prizes. Many  social media handles like Facebook also encourage bug bounty to find ways through which deepfake content can be detected. 

Now the main question arises, what are the laws which are protecting us from the deepfakes?

India’s ground on deepfakes

Deepfake has deep roots in India where it is majorly used in politics, the film industry, pornography, and even in cases of revenge- defamation. From the cases ranging from deepfake depicting Mr. Manoj Tiwari insulting the state government of Delhi, the Aam Aadmi Party speaking English and Haryanvi, to the generation of pornographic content, example being that of Ms. Rana Ayyub, it is pertinent that the deepfake can cause major harm to the person himself or herself being targeted as well as the society, by injuring  sentiments, thoughts, and perspectives of the people.

In another case a corporate company named Rephrase.ai made a deepfake of Mr. Hrithik Roshan, showing  him congratulating his fans. However, Mr. Hrithik had licensed Rephrase.ai to use his face and make him say anything for confectionery Cadbury. Even if the  acts done are legal, there is still a requirement of Laws governing the use of deepfakes.

Indian Legislation is still not equipped with provisions that can keep check and balance for deepfakes. However, Indian Laws do provide a block of laws that challenge deepfakes indirectly:-

The Constitution of India

Right to privacy

Deepfakes function by using one’s identity, face, or features. This leads to violation and infringement of the right to privacy bestowed by Article 21 of the Constitution of India. Not only in the realm of physical and spatial privacy but also in protection, preservation, and the flow of personal information. Over the years through a series of judgements, the judiciary has shown an attentive inclusive approach in recognizing, protecting, and conserving the right to privacy as a part and parcel of fundamental rights in the democratic state. In tune with the constitution of India, the concept of privacy has evolved and developed both horizontally as well as vertically. Horizontally (within the individual) it has included sexual autonomy as part of privacy, whereas vertically (state and individual) it imposes an obligation on the state to protect and conserve the right to privacy of every citizen. On the basis of the above discussion, it is clear that the right to privacy is an integral part of the right to life and personal liberty and other freedoms guaranteed in articles 19 and 21 of the Constitution. 

Taking reference from the landmark Puttaswamy’s judgment, the Supreme Court in Indian Hotel and Restaurant Association (AHAR) v. The State of Maharashtra, considered the data stored in CCTV footage is the personal information of the person. The court held that “complete surveillance of activities through CCTV cameras inside the premises of dance bars is excessive and disproportionate. The monitoring, recording, storage and retention of dance performances causes unwarranted invasion of privacy and would even subject women bar dancers to threat and blackmail”. As the CCTV footage provides a strong source for identifying an individual it becomes part of his information which attracts the right to privacy.

The Indian Penal Code, 1860 

Defamation

Section 500, The Indian Penal Code, 1860 states that a person shall be punished for a term which may extend to two years, or be charged a fine or both if s/he has committed the crime of defamation as mentioned in Section 499, The Indian Penal Code, 1860. By using deepfakes, a victim faces harm and damages as he is shown to be involved in obscene acts which s/he never planned or did thus affecting morally, socially, and financially.

Forgery

According to section 463 of The Indian Penal Code, 1860, making (a part/ full) of a false document or electronic record for the purpose of causing injury or damages is called forgery. Section 468 The Indian Penal Code, 1860 states the provision where a forged document is represented as genuine with the intent of cheating. Deepfakes can also be regulated by section 469 The Indian Penal Code, 1860 as it provides the framework and punishment when a forged document is used to harm one’s reputation. Originators and promoters of the deepfakes can be regulated and punished u/S 471 The Indian Penal Code, 1860 as the section provides the punishment in case where a person has a knowledge/ reason to believe that the said document is forged and still moves forward to use it in a dishonest manner..

Sedition

If a person or a group of persons try to/ do use deepfakes to provoke hatred and anti-national sentiments against the rule of law or the presiding Government or bring contempt against the nation and democracy, then they have committed the crime of sedition u/S 124A The Indian Penal Code, 1860.

Criminal Intimidation

Section 506 The Indian Penal Code, 1860 specifies the law and punishment where a person criminally intimidates another person to do/ abstain from doing an act. Hence, if someone is found to threaten somebody via spreading his/ her picture or video then he is liable under section 506 The Indian Penal Code, 1860

Voyeurism

Section 354C prescribes the punishment for the act of voyeurism where a person is found involved in seeing, capturing any picture of any person for using it in intimate scenes and he/she can be regulated and punished u/S 354C, The Indian Penal Code, 1860.

The Copyright Act, 1957

Copyright infringement by deepfakes

Section 52: The section discusses  the concept of fair dealing, though doesn’t explain it and further states the areas and scenarios in which there is no infringement of copyright. Here, deepfakes do not come under the umbrella of exceptions mentioned in section 52 of the Copyright Act, 1957. Hence, any offence committed via using deepfakes would be termed as copyright infringement.

Rights of the owner 

Section 57 gives the author of the content the power to restrain or claim damages for any mutilation or distortion of content that can damage the author’s reputation. Additionally, the moral right of the author in his work was recognized by the Delhi High Court in Amarnath Sehgal v. Union of India.  The author can claim damages for infringement of his moral right in respect of distortion, mutilation, or otherwise modification in his work that would be prejudicial to his honor or reputation.

However, copyright infringement is not the best way  to deal with deepfakes as the  ownership of the image/ film lies with the producer of the image/ film and thus cannot be challenged.

The Information Technology Act, 2000

Deepfake involved with computer-related offences

Section 66 D of the Information Technology Act, 2000 holds the provisions for the case where a communication device or computer resource is used mala-fidely for cheating to personate. In other words, a person is made to say and do acts using technology and thus is used for the purpose of cheating. Also, there is a violation of privacy under section 66 E of the Information Technology Act, 2000 when deepfakes are used to invade someone’s privacy by capturing, publishing or transmitting someone’s intimate pictures or videos.

Publishing sexual content

Deepfakes containing pornographic content come under the ambit of section 67A and 66 B, Informational Technology Act, 2000. The sections outline a  fine and appropriate punishment for the publication and transmission of sexual and explicit content involving both adults and children. Thus, many sites including Pornhub have banned deepfake sexual content.

Intermediaries’ liability

The liabilities of intermediaries can also come into question as the intermediaries are the platforms where the deepfake content is posted and thus are regulated by Section 79 of the Information Technology Act, 2000. The section states that the intermediary may take down the content in question after realization/ knowledge of the presence of such content or Court order. However, in the case of Myspace Inc. v Super Cassettes Industries Ltd, the Court held that in circumstances of copyright infringement, the intermediaries are required to take down infringing content upon receiving a notification from private parties without necessarily receiving a Court order. 

As per the Information Technology Rules, 2021, SSMIs i.e., Social Media Intermediaries (Intermediaries which have registered users above a notified threshold) are required to appoint certain personnel who will need to keep a check and identify the originator of the information and certain types of content. The rules also provide the regulations to the intermediaries to provide a grievance settlement mechanism to solve the issues/complaints/ grievances of the users.

Conclusion

Recently in his response to deepfake technology, India’s IT minister had assumed the use of deepfakes to be limited for the circulation of fake news. However, deepfakes can be used solely for entertainment and yet infringe on someone’s privacy. Therefore, along with spreading awareness about this novel technology to the masses, adequate attention should be given by the government towards the challenges posed by deepfakes, before they become a menace in India.

Deepfakes have a lot of potential such that they can influence the way we see the world ; however, the negative toll is heavier in this scenario. Thus, there is a major need for laws in India  that regulate deepfakes and similar technology  to keep checks and controls over any potential nuisance that  can cause harm to society and mankind. A committee can also be formed just as proposed in the U.S.A i.e., National Deepfake and Digital Provenance Task Force. Till the time appropriate laws are not implemented , deepfakes should be banned to maintain peace and harmony. 

References


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