Overview

INTRODUCTION

Deep fake technology is a specter that looms big in today's ever changing internet ecosystem, where reality and virtual reality collide and undermine the fundamentals of truth. The advent of AI-driven deep fakes has made it more difficult to distinguish between reality and fiction.

Deep fake technology refers to the use of artificial intelligence (AI) and deep learning algorithms to create realistic and often deceptive digital content, primarily in the form of manipulated videos or images. Deep fake techniques span a wide range of fields and sectors, including programming, computer science, visual effects, computer animation, and even neuroscience.

This article explores the legal perspective of deep fakes in India, examining existing laws, challenges, and evolving strategies to counter the misuse of this technology.

HOW ARE DEEP FAKES COMMONLY USED?

The following are some typical uses for deep fake technology:

1. Phishing Attacks and Identity Theft: Phishing attacks can leverage deep fakes to steal someone's identity. To trick workers into disclosing private information or carrying out illegal activities, attackers may produce convincing audio or video recordings that mimic reputable people, such as business leaders.

2. Adult material: Non-consensual Content: People have been included in explicit material without their consent thanks to the misuse of deep fakes. This presents serious moral and legal issues since it can be used for defamatory retribution or to damage someone's reputation.

3. False evidence: This refers to the creation of fake pictures or sounds that may be used in court as proof of someone's guilt or innocence.

EXISTING LEGAL FRAMEWORK IN INDIA

India does not have any laws designed specifically to deal with the problems caused by deep fake technology. Nonetheless, a number of current laws may be used to address different facets of the production and propagation of deep fakes:

For instance, deep fake offences that entail the acquisition, dissemination, or publishing of an individual's picture in the media, infringing upon their privacy, are subject to Section 66E of the Information Technology Act, 2000 (IT Act). Similarly, those who use computer resources or communication devices maliciously in order to impersonate someone else or cheat are subject to punishment under Section 66D of the IT Act. Furthermore, posting or sending pornographic or sexually explicit deep fakes might result in legal action under Sections 67, 67A, and 67B of the IT Act.

For cybercrimes related to deep fakes, Section 509 (words, gestures, or acts designed to offend a woman's modesty), Section 499 (criminal defamation), and Section 153 (a) and (b) (spreading hate on communal lines) of the Indian Penal Code, 1860, (IPC) may also be invoked.

In addition, Section 51 of the Copyright Act of 1957 may be invoked in cases where deep fakes have been produced using any copyrighted picture or video. Any property that belongs to another person and over which they have the sole right to use is prohibited.

CHALLENGES IN THE LEGAL LANDSCAPE

1. Advancements in Technology vs the Law: Deep fake technology is developing quickly, and the legal system finds it difficult to keep up. Because there aren't any laws specifically targeting deep fakes, it may be difficult for legal frameworks to effectively control and punish the improper use of this technology.

2. Attribution and Jurisdiction: The internet’s cross-border nature makes it difficult to pinpoint the source of a deep fake and to establish jurisdiction in court.

3. Freedom of Expression Issues: Balancing the need to curb the malicious use of deep fakes with the right to freedom of expression is a delicate task. The legal framework must strike a balance that prevents harm without unduly restricting legitimate forms of expression, such as satire or political commentary.

RECENT STEPS TAKEN BY THE INDIAN GOVERNMENT

On November 23, 2023, Union Minister of Electronics and Information Technology Ashwini Vaishnaw chaired a meeting with social media platforms, AI companies, and industry bodies in response to the outcry over an Indian actress deep fake video. It has been revealed by the Ministry of Electronics and Information Technology (MeitY) that they are developing significant initiatives.

The four pillars around which the proposed regulations are built are as follows:

1. Deep fake identification

2. Avoidance of deep fakes

3. Establishing a grievance and reporting system

4. Increasing consciousness

However, no draft has emerged.

On December 26, 2023, the government sent out yet another advisory in compliance with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to all social media and internet intermediaries, Facebook, Google, Instagram, and WhatsApp, requesting strict adherence to the current IT rules and that users on these platforms do not violate the prohibited content in Rule 3(1)(b) and focus on the growing concerns about misinformation fueled by deep fake technology.

If such legal violations are noted or reported, then the appropriate legal consequences will follow. All businesses have been requested by the IT ministry to provide an "action-taken-cum-status."

Additionally, they must make sure that reasonable measures are taken to stop users from hosting, displaying, uploading, changing, publishing, sending, storing, updating, or sharing any data pertaining to any of the 11 user harms or material that is forbidden on digital intermediaries.­­­­­­­­­­­­­­­­

WAY FORWARD

Prior to finding a solution for deep fake problems, media literacy needs to be improved. It is our responsibility as media consumers to be able to interpret, decode, and comprehend the information we come across. Additionally, in order to identify deep fakes, verify material, and bolster reliable sources, there is a requirement for technology solutions that are simple to use and easily available.

In India, changes pertaining to AI governance must prioritize creating safety standards, raising public awareness, and fostering institutional development. Advantages from AI must be assimilated in a way that maximizes advantages and minimizes drawbacks for human well-being on all metrics.

CONCLUSION

Deep fake technology is having an increasingly noticeable effect on security, privacy, and society as it develops. At this critical point, policymakers and legal experts in India are actively investigating methods to handle the difficulties presented by deep fake technology. Striking a careful balance that limits harmful activity without limiting innovation and acceptable forms of expression is crucial as the legal environment changes.

Authored By

Rajiv Sawhney, Partner

Ramansh Kakra, Junior Associate