The Legal Implications of Deepfakes and AI: Navigating the Challenges and Solutions in the Quest for Truth

26th July, 2024 - 12:29 pm Categories: AI News & Updates 0 Comments

Deepfakes are AI generated tool which makes photos, videos, sounds or films to appear authentic or real. While they can be used for fun or for scientific purpose but sometimes it can be used to impersonate peoples like actors, politicians, leaders or common people intending to mislead people.

Deepfakes by using AI simulate facial expressions and voice of peoples. By using the audio recording of human voice AI can make appear that a person is saying or even singing something that that person has never actually said.

The technology can even imitate facial expressions by using photos or videos of the person.

The term deepfakes is made from two words “deep learning” and “fake” and came in 2017 by a Reddit user who created a subreddit called “Deepfakes”[1] and then started uploading face swapping technology videos that include celebrities videos by swapping their face to some existing pornographic content. The term Synthetic media first appeared here.[2]

There are many celebrities who became victim of this AI technology like the video of Rashmika Mandhana has surfaced which caused high concern over this technology misuse, another video of Anil Kapoor[3] has also surfaced in the internet which is without his consent which also raises alarm for deepfakes.

After this the technology has spread even to normal people and finding ways in many sectors including but not limited to film, politics, sports etc. This technology’s misuse is however alarming. It can be used for various illegal activities spreading misinformation, post truth politics, revenge porn which leads to legal implications.

 LEGAL IMPLICATIONS

Deepfakes have complicated and wide-ranging legal ramifications, from intellectual property rights violations to rights to personal data protection.

[Image Sources: Shutterstock]

Intellectual property laws safeguard the personality rights of celebrities and other high-profile individuals. The commercial use of the identity of the people has been recognized by Supreme Court in various cases. Celebrities are entitled to these rights; in particular, if the celebrity is recognizable, a breach of publicity rights does not necessitate proof of dishonesty, confusion, or deception. Although voice, face, and other personal characteristics are protected by personality rights but in India, copyright and trademark rules are applied in these situations rather than personality rights.

As per the case of K.S. Puttaswamy vs. UOI[4] every individual has a right to life and personal liberty which includes right to privacy under Article 21 of the Indian Constitution as deepfakes infringes a person’s right to privacy by manipulating the identity, face or voice of an individual.[5]

The Personal Data Protection bill, 2023 Section 3(c)(ii) contains exemptions for personal data that is available publically which makes it difficult to make deepfakes. It means that the data shared by the “Data Principle” is not covered by the act’s safeguard as it puts the celebrities or other publically known personalities who has high social media presence at risk as their shared photos or videos could be used to make deepfakes.[6] More and more legal measures has to be taken so that the loopholes could be covered in order to effectively handle the threat of deepfakes.

The Information Technology (IT) Act, 2000 offers additional measures to further combat the threat of deepfakes.

Both IT Act and IT Rules gives clear instructions to the online social media intermediaries and place onus on them to remove all the photos, videos, sounds which is related to deepfakes as soon as possible failure leads to imprisonment of upto three years or fine of 1 Lakh.

Rule 3(1)(b)(vii) requires the social media intermediaries to ensure that users do not post on their platform related to the deepfakes involving impersonation of an individual.

Rule 3(2)(b) requires that if any complaint is received regarding the above content then it should be removed or taken down withing 24 hours of receiving the complaint receipt.

As deepfakes are used for deception and impersonation so Section 66D of the IT Act, 2000 addresses identity theft and impersonation through technology. Punishment includes imprisonment upto three years and fine upto One Lakh rupees.[7]

Section 66E punishes the person who publishes or circulate the private photos of an individual without their consent. The punishment for this section includes 3-year imprisonment along with fine of 2 Lakh.[8] This provision protects people from unauthorized use and sharing of private photos by penalizing them for privacy violations.

CHALLENGES

Some of the challenges or threats deepfakes possess are-

• Spreading false information- Deepfakes purposefully spread false information or misinformation regarding content so it creates confusion regarding other important issues.
• Fabricating Evidence- It can be used to defraud the public by fabricating the evidence which in turn can be harmful or misleading in legal proceedings and investigations.
• Harassment and Intimidation- Deepfakes can be used to blackmail, harass, intimidate, undermine the people for their personal benefit, etc.

SOLUTIONS

There can be 4 ways to combat deepfakes –

1. Legislation and Regulation

A new act has been introduced in 2023 i.e. Digital Personal Data Protection Act, 2023 as an effort to tackle the issue. In this act there is an obligation on data fiduciaries which requires them to take the consent of data principle directly before processing their data. According to the act, the person to whom the personal data belongs is the data principal.[9] Although this rule, which places responsibility for obtaining consent from the data principal on AI models, is progressive, its actual implementation is challenging.

2. Corporate policies and voluntary action[10]

It’s possible that voluntary efforts and corporate rules will combat deepfakes more successfully. Politicians could, for example, promise not to disseminate false material, such as deepfakes, or engage in illegal digital campaigning throughout their campaigns. Companies on social media ought to put ethics first and stop pushing contentious material in an effort to increase ad interaction.

3. Education and Training

These are important aspects in addressing the issue of deepfakes. Even though there is significant media coverage given to the issue of deepfakes but the general public is not yet fully aware about the threats posed by deepfake. It is crucial to raise awareness about the potential misuse of AI.[11] It is advised that digital literacy and critical thinking to be included in school curricula so that students would be aware about fake content and can easily spot these contents and be more informed about digital AI threats.

4. Anti- deepfake technology

This technology can include deepfake detection, content authentication, and prevention of deepfakes technology. The challenges with technology for content authentication and fake detection include its large scale and the fact that significantly more research resources and personnel are focused on developing deepfake technology than on detecting it.[12]

However, developing anti- deepfake technology alone is not sufficient but the organizations also need to implement the technology. For instance, governments in various countries need to modernize to better protect their citizens against deepfakes.

CONCLUSION

Artificial intelligence (AI)-generated media that looks real, or “deepfakes,” present serious problems since they can be used for impersonation, disinformation, and privacy invasion. Although there is some security provided by legal frameworks such as the IT Act and the Digital Personal Data Protection Act, 2023, their practical application is still challenging. A multifaceted strategy is required to effectively battle deepfakes, including more regulation, corporate accountability, public education on the misuse of AI, and the creation and uptake of anti-deepfake technologies. In order to incorporate provisions particularly addressing deepfakes, these rules must also be amended concurrently. This ensures that the legal framework is comprehensive and up to date with the most recent technological advancements. These concerted efforts are necessary to reduce the dangers and protect people from the negative effects of deepfakes, as well as society.

Author: Arya Bhatt, 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] Beddoes, J. (2024) Navigating: The legal landscape of deepfakes: Implications and solutions, The Legal Journal. Available at https://thelegaljournal.com/2023/08/28/navigating-the-legal-landscape-of-deepfakes-implications-and-solutions (Accessed: 16 July 2024).

[2] Ibid

[3] NovoJuris (no date) Deepfakes and intellectual property: Understanding legal challenges and protections in the artificial intelligence era, NovoJuris. Available athttps://www.novojuris.com/thought-leadership/deepfakes-and-intellectual-property-understanding-legal-challenges-and-protections-in-the-artificial-intelligence-era.html (Accessed: 16 July 2024).

[4] AIR 2018 SC (SUPP) 1841, 2019 (1) SCC 1, (2018) 12 SCALE 1, (2018) 4 CURCC 1, (2018) 255 DLT 1, 2018 (4) KCCR SN 331 (SC), AIRONLINE 2018 SC 237

[5] NovoJuris (no date) Deepfakes and intellectual property: Understanding legal challenges and protections in the artificial intelligence era, NovoJuris. Available athttps://www.novojuris.com/thought-leadership/deepfakes-and-intellectual-property-understanding-legal-challenges-and-protections-in-the-artificial-intelligence-era.html (Accessed: 16 July 2024).

[6] Ibid

[7] Mondal, A. (2024) Deciphering deepfakes: Navigating the legal implications of Digital Deception, India – New Technology. Available athttps://www.mondaq.com/india/new-technology/1441788/deciphering-deepfakes-navigating-the-legal-implications-of-digital-deception (Accessed: 16 July 2024).

[8] Ibid

[9] Westerlund, M. (2019) ‘The emergence of Deepfake Technology: A Review’, Technology Innovation Management Review, 9(11), pp. 39–52. doi:10.22215/timreview/1282.

[10] Ibid

[11] Ibid

[12] Ibid