The Use Of Deep Fake

19th April, 2024 - 6:56 am Categories: News & Updates 0 Comments

“The police are prosecuting on the effect of the deep fake and not because it is a deep fake itself”

According to policy researchers at Digital Futures Lab in Goa, Indian regulations do not currently provide a precise definition of “deepfakes” The Information Technology Act and laws prohibiting defamation, fake news and invasions of privacy have been used by the police to try and handle specific situations.^[1]

Deep Fake

“Deepfakes refer to synthetic or doctored media digitally manipulated and altered to convincingly misrepresent or impersonate someone using a form of artificial intelligence or AI^[2]”

Deep Fakes pose serious problems for data security, privacy, and intellectual property rights. When deepfake technology is misused, it can result in privacy rights violations, personal data breaches, and the unapproved use of people’s likenesses for profit or commercial endeavours.

Recently, how deep fake is used for ill-intents came to light. Making fake videos where someone’s face is superimposed on another person’s body in compromising or explicit scenarios is an example of how deep fake technology is misused and improperly used, especially for a pornographic and sexually explicit content. Deep Fake videos that have been altered are frequently used to trick viewers into thinking that the person in the video is acting inappropriately or sexually explicit. This can result in invasions of privacy, damage to one’s reputation and even legal consequences.

Current Legislation

India is currently developing new legislation to tackle the problems brought about by deepfake technology. Although India does not yet have legislation specifically addressing deepfakes, the government is moving to this technology. The appropriate legislation to prevent the misuse of deepfakes is being drafted by the Ministry of Electronics and Information Technology (MeitY). The focus of this legislation is on deepfake content knowledge, reporting, prevention and detection. In addition, to combat deep fakes the government, academic institutions, social media firms and NASSCOM are working together. ^[3]

Thus, Proper laws for prohibiting deep fakes in India are yet to be framed.

The current legislation in India regarding cyber offenses caused using deepfakes is not adequate to fully address the issue.^[4]

IT RULES

Currently, social media intermediaries are receiving advisories from the Ministry of Electronics and Information Technology (MeitY), to regulate deep fake,

2023. i) The advisory to social media intermediaries to identify misinformation and deep fake was released by the Union Government on 7th Nov 2023. ^[5]

• protocols to guarantee that users of these platforms don’t post anything that is forbidden by Rule 3(1)(b)
• If these legal infractions of the IT regulations are discovered or reported, there will be legal repercussions.
• Content that is prohibited by the IT Rules, including those that are included in Rule 3(1)(b), needs to be made apparent to users.

2023. ii) The advisory to all intermediaries to comply with existing IT rules was issued by MeitY on 26th December 2023.^[6]

• Make sure that reasonable efforts are made to identify misinformation and deep fakes and
• that due diligence is used to identify information that violates user agreements, rules and regulations, and other relevant guidelines.
• Users are prompted to refrain from hosting misinformation, content or deep fakes and
• to remove any such content that is reported within 36 hours of the incident.
• Prompt action is taken under the IT Rules 2021 and access to the content and information is to be disabled.

It asserts that Platforms and intermediaries are responsible for identifying and removing deepfakes and forbidden content, they have been cautioned that failure to do so or complying with a casual approach to this core responsibility could result in them being blocked. The guidelines also pertain to the obligations of intermediaries (due diligence) regarding the information hosted on their platforms under Rule 3(1)(b) of the IT rules, 2021.

To preserve safe harbour protection under the IT Act, the platforms have to make sure they exercise due care in identifying disinformation, act quickly against violative content and remove reported content within 36 hours.

Information Technology Act

There are laws in India explicitly or indirectly prohibiting deep fake,

• such as Defamation, Identity theft, Hate speech, Practices that affect elections, pornography, Sexually explicit content, and Copyright(protected content).
• Some regulations mandate AI platforms ensure misinformation, hate speech and threats to national security are not shared, displayed, or spread.

Section 66E: applies when someone’s privacy is violated by the capture, publication, or transmission of a person’s images in mass media using deepfake technology.

Section 66D: Individuals those who use communication devices or computer resources maliciously to deceive or impersonate someone(violation of privacy)

Section 66D: Individuals using communication devices or computer resources with malicious intent to cheat or impersonate someone can be prosecuted under this section, with penalties of up to three years imprisonment and/or a fine of up to ₹1 lakh.

Indian Penal Code, 1860

Section 465 (forgery) and other sections that may be invoked for cybercrimes involving deep fakes include Sections 509 (insulting a woman’s modesty), 499 (criminal defamation), and 153 (spreading hate on communal lines). These sections of IPC can be used for addressing deep fake related offences.^[7]

Copyright Act of 1957

Penalties under Section 51 for various offences including copyright infringement are provided. It expressly forbids using someone else’s property without permission, especially if that person has exclusive rights to it. t.^[8]

The Copyright Act provides copyright protection for works, including films, music, and creative content. Individuals infringing upon copyrights by creating deepfakes using copyrighted works without permission can face legal action under this act.

Personality Rights

Legal precedents in India have been established to support the legitimate use of deepfake technology. In one well-known instance, actor Anil Kapoor sought protection against the unauthorised use of his persona through deep-face technology.  An order was obtained by the Delhi High Court to prevent Kapoor’s name, likeness, voice, and other distinctive features from being misused online. This case demonstrated how the law recognizes the harm that deepfakes do and the necessity of protecting people’s rights and privacy.

Furthermore, the Indian judiciary has demonstrated a willingness to address the misuse of deep fakes. In a similar case involving actor Amitabh Bachchan, relief was granted when his public image was used without authorization. These court cases show that the Indian judicial system is becoming more conscious of the dangers posed by deepfake technology and the necessity of protecting people from its misuse.^[9]

Deepfake technology use in India creates a complicated environment that could be detrimental to social institutions, individual interests, and democracy. Even though detrimental, deepfakes are addressed by current legal frameworks like the Information Technology Act, enforcement issues still remain.

Thus, more safeguards and strategies to stop the dissemination of misleading information are necessary to address concerns about public figures and political misinformation. In India, where the digital landscape is constantly changing, managing the complex difficulties presented by deepfake technology requires finding a careful balance between legislation and protecting fundamental freedoms.

Author: Aathi Kesavan, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

^[1]Yashraj Sharma, Deepfake democracy: Behind the AI trickery shaping India’s 2024 election, ALJAZEERA, https://www.aljazeera.com/news/2024/2/20/deepfake-democracy-behind-the-ai-trickery-shaping-indias-2024-elections#:~:text=Indian%20laws%20currently%20do%20not,try%20and%20tackle%20individual%20cases

^[2] Union Minister Rajeev Chandrasekhar on compliance with the advisory on deepfakes, available at https://www.thehindu.com/sci-tech/technology/deepfakes-in-india-mixed-response-to-advisory-government-notify-tighter-it-rules-in-a-week/article67747422.ece#:~:text=Deepfakes%20refer%20to%20synthetic%20or,of%20artificial%20intelligence%20or%20AI.

^[3] INDIAai, Center to introduce new regulations to tackle issues of deep fakes, https://indiaai.gov.in/news/center-to-introduce-new-regulations-to-tackle-issues-of-deep-fakes.

^[4]https://www.scconline.com/blog/post/2023/03/17/emerging-technologies-and-law-legal-status-of-tackling-crimes-relating-to-deepfakes-in-india/

^[5]  Press Infomation Bureau, MeitY issues advisory to all intermediaries to comply with existing IT rules, available at

https://pib.gov.in/PressReleseDetailm.aspx?PRID=1990542&ref=static.internetfreedom.in.

^[6] Union Government issues advisory to social media intermediaries to identify misinformation and deepfakes, available at https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1975445.

^[7]https://www.thehindu.com/sci-tech/technology/why-has-the-government-issued-a-directive-on-deepfake-explained/article67516589.ece

^[8]https://www.thehindubusinessline.com/business-laws/deepfakes-call-for-stronger-laws/article67077019.ece

^[9] https://chambers.com/legal-trends/controlling-deepfakes-in-india