By Purvi Nema
Digital disinformation in the form of fake news or morphed pictures/videos spread like wildfire on internet and especially on social media. Owing to the avid technology and vast connectivity on the social media platforms, it becomes difficult to check the authenticity of the news and control the spread before it reaches hundreds and thousands of people. Adding to the list of false information are Deepfakes. Deepfake stems from combination of ‘deep learning’ and ‘fake’ and is a product of artificial intelligence applications that merge, combine, replace, and superimpose images and video clips to create fake videos or pictures that appear authentic.[1]
It was that deepfakes marked its debut in election campaigns in India when the leading political party BJP partnered with political communications firm the Ideaz Factory to create positive campaigns using deepfakes to reach different linguistic voter bases.[2] In February, 2020 two videos of politician Manoj Tiwari, one in English and one in Haryanvi, started making rounds in social media platforms just a day before Delhi Elections.[3] These deepfake videos were shared across 5,800 WhatsApp groups in the Delhi and NCR region, reaching approximately 15 million people.[4]
Deepfakes involves the analysis of number of data samples to mimic a person’s mannerisms, facial expressions, voice, inflections by deep learning algorithm known as generative adversarial networks (GANs), that either swap faces or uses lip-syncs to create altogether a new video which is unreal.[5] Deepfakes gained publicity in 2017, when a Reddit user posted fake porn videos displaying famous celebrities, using existing celebrity video footage and artificial intelligence algorithms. As of September, 2019, 96% of deepfake videos are non-consensual deepfake pornography.[6] Deepfakes are extensively used in swaying political campaigns in the USA, UK, Gabon and Belgium.[7] In the long run, such videos can possibly provoke deep political crises or protest movements, or even worse, disrupt relations between countries and thereby undermine international stability.[8]
This new artificial intelligence technique may have better prospects such as protecting real patient privacy by creating virtual patient thereby removing the need to share personal data of real patients,[9] generating live-action animation and interactive simulation,[10] recreating classic scenes in movies, creating new movies starring long-dead actors, making use of special effects and advanced face editing in post-production, improving amateur videos to professional quality in movies,[11] transforming e-commerce by turning consumers themselves into models for improving sale,[12] and there can be various other additions to this list.
However, we cannot ignore that there are more misgivings than credence to the use of deepfakes. With the scope and scale of the technology it is easy to fabricate videos that are imperceptible from original media and is likely to be used for revenge porn, false evidences, manipulating public opinion for political campaigns, sabotaging markets, blackmailing, spawning terrorist propagandas and many more crimes. Distortion of authentic audio or video footages by miscreants on digital platform is blurring truth and will increase distrust among the internet users and more so increase hate and prejudice.[13]
Deepfakes have challenged the legal system across the world. The increasing use of deepfakes especially in fake pornographic videos and political campaigns raises concerns over privacy, identity and security of the victim as well as the reality and authenticity of elections. The viable solution to this cyber threat is combination of technology and legislation.
To curb the nefarious outflow of deepfakes on the social media, Alphabet Inc.’s YouTube,[14] ByteDance’s TikTok,[15] Facebook Inc.,[16] released statements (separately) that they will remove manipulated videos that may pose a serious risk of egregious harm or are misleading. Recently, Twitter announced that it will label ‘false’ to any photos or videos that have been significantly and deceptively altered or fabricated added that the content could be removed if the text in the tweet or other contextual signals suggested it was likely to cause harm.[17]
In USA, the Deepfakes Accountability Act, 2019 was passed ahead of 2020 elections that mandated deepfakes to be watermarked for the purpose of identification.[18] Earlier, Texas passed the Bill that created fabrication of deceptive video with intent to influence an outcome of election as an offence.[19] On similar lines, California passed the Bill that prohibits creation and distribution of deepfakes about any candidate 60 days prior to election, largely to prevent spread of misinformation among the voters ahead of US 2020 elections.[20] While Virginia expanded its revenge porn law effective since 2014 to include deepfakes.[21]
In India, there is no rule or regulation that directly or specifically deals with deepfakes. However, to address the offence of misuse or abuse of deepfake technology, there can be several causes of action existing in our current laws that may be applicable or can be extended to be applicable. The following are the summary of the provisions in the current laws in India:
1. Right to Privacy
The right to privacy is a fundamental right of every citizen that emanates from Article 21 under Part III of the Constitution of India, 1950. The nine judge bench of the Supreme Court of India in Justice K. S. Puttaswamy v. Union of India,[22] recognised that in Indian context a fundamental right to privacy would cover ‘informational privacy’ which recognizes that an individual may have control over the dissemination of material that is personal to him and digital privacy is a part of informational privacy.[23] Therefore, using personal information like pictures or audio-video clips in deepfake videos without the consent of that individual is violation of fundamental right of privacy.
Further, Section 66E of Information Technology Act, 2000 (IT Act) prescribes punishment for violation of privacy if the accused person intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, with imprisonment extending to three years or with fine not exceeding two lakh rupees, or with both.
2. Computer Related Offences
The misuse or abuse of deepfakes attracts computer related offences under IT Act, 2000. The publication or transmission of obscene material in electronic form is punishable under Section 67 of the Act,[24] while Section 67A prescribes punishment for publishing or transmitting of material containing sexually explicit act or conduct in electronic form.[25] Also, if the publication or transmission of material in electronic form that depicts children in sexually explicit act or conduct it is punishable under Section 67B.[26]
If the deepfake video involves use of the electronic signature, password or any other unique identification feature of any other person in a fraudulent or dishonest manner, the accused person shall be punished for the offence of identity theft under Section 66C of IT Act.[27] Furthermore, cheating by personation by using computer resource or any communication device is punishable under Section 66D of IT Act.[28]
Additionally, the Central Government has power to direct the intermediary to block for access by the public any such deepfake generated, transmitted, received, stored or hosted in any computer resource, if it finds necessary or expedient to do so, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.[29]
3. Defamation
In India, a person can be liable for defamation both under civil and criminal law.[30] In civil defamation, if an action for defamation is instituted, and defamation is found to have been committed, damages will be payable to the person defamed.[31] Criminal defamation includes the medium of visible representations which are published imputation causes or will cause harm to the reputation of the person.[32] The punishment for such offence is stipulated in Section 500 of Indian Penal Code, 1860 (IPC) which is simple imprisonment for up to two years or fine or with both but these provisions are insufficient to tackle various forms in which deepfakes exist.[33]
Earlier cyber defamation was specifically addressed under Section 66A of IT Act. The provision prescribed punishment sending any information by computer resource that is grossly offensive or has menacing character; or is for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will.[34] But this provision was struck down by the Supreme Court in Shreya Singhal v. Union of India.[35]
4. Other Criminal Offences
Deepfake videos are mainly the forged versions of the original content and may constitute the offense of forgery. The act of forgery (defined under Section 468 of IPC) committed with intent that electronic record forged shall harm the reputation of any party, or knowing that is likely to be used for that purpose shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.[36]
In case the deepfake brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, it shall be punished for the offence of sedition under Section 124 of IPC.[37]
Further, if person in deepfake video is threatened with injury to reputation or property belonging to him or an interested person with intent to cause alarm to that person or cause to do or omit an illegal act constitutes the offence of criminal intimidation.[38] Section 506 of IPC provides punishment for this offence which includes the use of photos or videos for threatening or intimidating any person or his property or reputation.
Moreover, defending on the probable consequence of contents of deepfake, the accused can be charged with the offence of intentional insult with intent to provoke breach of the peace,[39] promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony,[40] or for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.[41]
5. Copyright Infringement
Deepfake videos are generally distorted or fabricated versions of the sound recording or visual recording taken from a video or a film that might be copyrighted work. Section 14 of the Copyright Act, 1957 provides that the copyright owner of a cinematograph film and sound recording has the exclusive right to do or to license making a copy of the film, including photograph of any image forming part thereof or making any other sound recording embodying it, respectively.[42] Additionally, the moral right of author in his work was recognised by the Delhi High Court in Amarnath Sehegal v. Union of India.[43] 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 honour or reputation.[44]
The copyright owner is liable to civil remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right.[45] Also, any person who knowingly infringes or abets the infringement of the copyright in a work, or any other right conferred by the Act shall be punishable with imprisonment that may extend to three years and with fine which may extend to two lakh rupees.[46]
But the copyright remedy may not be the best solution in the cases where copyright may not reside in the person who is the target of the deepfake. For example, in cinematographic films, the copyright reside with producers of the films and not actors.[47] Likewise, in photos copyright could be owned by the cameraman and not the person in the photograph.[48] So, the remedy for copyright infringement may not be available to the target.[49]
Conclusion
Law does not develop as fast as technology. Presently, the technology law in India is not enough to address the issues arising out of artificial intelligence algorithms. Further, the Election Commission requires that every registered/national and State political party and every contesting candidate proposing to issue advertisements on television channels and/ or on cable network will have to apply to Election Commission of India/designated officer for pre-certification of all political advertisements on electronic media before the publication.[50] This order was extended to social media websites as they are also electronic media by definition.[51] However, this requirement is not enough to deal with deepfakes as seen in the case of Delhi Elections, 2020.
It is necessary that legal understanding of the malicious use of deepfakes is elaborated and election laws as well as information technology act are revisited. It is the need of the hour that the Personal Data Protection Bill is enacted that provides for the protection of personal data of individuals, which includes data relating to a natural person, the right to be forgotten as well as extraterritorial applicability. Simultaneously, artificial intelligence algorithm should be developed to identify and block deepfakes that can be used by the appropriate platforms including and not limited to government authorities, social media and corporate giants.
The author, Purvi Nerma, is currently a law student at the National University of Study and Research in Law (NUSRL), Ranchi.
[1] M.H. Maras & A. Alexandrou, Determining authenticity of video evidence in the age of artificial intelligence and in the wake of Deepfake videos, 23(3) International Journal of Evidence & Proof, 255, 256 (2019).
[2] Nilesh Christopher, We’ve Just Seen the First Use of Deepfakes in an Indian Election Campaign, Vice, 18/02/2020, available at: https://www.vice.com/en_in/article/jgedjb/the-first-use-of-deepfakes-in-indian-election-by-bjp, last seen at 23/06/2020.
[3] John Xavier, Deepfakes enter Indian Election Campaigns, The Hindu, 20/02/2020, available at: https://www.thehindu.com/news/national/deepfakes-enter-indian-election-campaigns/article30880638.ece, last seen at 23/06/2020.
[4] An Indian politician is using deepfake technology to win new voters, MIT Technology Review, 19/02/2020, available at: https://www.technologyreview.com/2020/02/19/868173/an-indian-politician-is-using-deepfakes-to-try-and-win-voters/, last seen at 23/06/2020.
[5] Mika Westerlund, The Emergence of Deepfake Technology: A Review, 9(11) Technology Innovation Management Review, 39, 40 (2019).
[6] Rob Towes, Deepfakes are going to wreak havoc on Society. We Are Not Prepared., Forbes, 25/05/2020, available at: https://www.forbes.com/sites/robtoews/2020/05/25/deepfakes-are-going-to-wreak-havoc-on-society-we-are-not-prepared/#f355cbd74940, last seen at 23/06/2020.
[7] Cristian Vaccari & Andrew Chadwick, Deepfakes and Disinformation: Exploring the Impact of Synthetic Political Video on Deception, Uncertainty, and Trust in News, Sage Journals, 1, 13 (2020).
[8] Konstantin Pantserev, MUAI in the Political Area: the Case of Deepfakes, in Experts on the Malicious Use of Artificial Intelligence: Challenges for Political Stability and International Psychological Security, Report by the International Center for Social and Political Studies and Consulting June 2020, Moscow, 1, 14 (2020).
[9] Geraint Rees, Here’s how deepfake technology can actually be a good thing, World Economic Forum, 25/11/2019, available at: https://www.weforum.org/agenda/2019/11/advantages-of-artificial-intelligence/, last seen at 23/06/2020.
[10] James Kobielus, Deepfake Technology Loses its Stigma Amid Socially Redeeming Uses, Futurum, 05/03/2020, available at: https://futurumresearch.com/research-notes/deepfake-technology-ecosystem/, last seen at 23/06/2020.
[11] John Brandon, Terrifying high-tech porn: Creepy ‘deepfake’ videos are on the rise, Fox News, 16/02/2018, available at: https://www.foxnews.com/tech/terrifying-high-tech-porn-creepy-deepfake-videos-are-on-the-rise, last seen at 23/06/2020.
[12] Katie Baron, Digital Doubles: The Deepfake Tech Nourishing New Wave Retail, Forbes, 29/07/2019, available at: https://www.forbes.com/sites/katiebaron/2019/07/29/digital-doubles-the-deepfake-tech-nourishing-new-wave-retail/#10a3cc604cc7, last seen at 23/06/2020.
[13] Mark Verstraete & Derek E Bambauer, Ecosystem of Distrust, 16 First Amendment Law Review 129, 144 (2017).
[14] Matt O’Brien, YouTube: No ‘deepfakes’ or ‘birther’ videos allowed in 2020 election, Press Herald, 03/02/2020, available at: https://www.pressherald.com/2020/02/03/youtube-no-deepfakes-or-birther-videos-allowed-in-2020-election/, last seen at 29/06/2020.
[15] Peter Suciu, TikTok’s Deepfakes Just The Latest Security Issue For The Video Sharing App, Forbes, 07/01/2020, available at: https://www.forbes.com/sites/petersuciu/2020/01/07/tiktoks-deepfakes-just-the-latest-security-issue-for-the-video-sharing-app/#12bc287f70a2, last seen at 29/06/2020.
[16] Tony Romm, Drew Harwell & Isaac Stanley-Becker, Facebook bans deepfakes, but new policy may not cover controversial Pelosi video, The Washington Post, 08/01/2020, available at: https://www.washingtonpost.com/technology/2020/01/06/facebook-ban-deepfakes-sources-say-new-policy-may-not-cover-controversial-pelosi-video/, last seen at 29/06/2020.
[17] Katie Paul, Twitter to label deepfakes and other deceptive media, Thomson Reuters, 05/02/2020, available at: https://in.reuters.com/article/us-twitter-security/twitter-to-label-deepfakes-and-other-deceptive-media-idINKBN1ZY2OV, last seen at 29/06/2020.
[18] H.R.3230-Defending Each and Every Person from False Appearances by Keeping Exploitation Subject to Accountability Act of 2019, available at: https://www.congress.gov/bill/116th-congress/house-bill/3230/text.
[19] Texas S.B. No. 751 86(R), available at: https://capitol.texas.gov/tlodocs/86R/billtext/html/SB00751I.htm.
[20] Assembly Bill No. 730, available at:leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB730.
[21] Code of Virginia, Section 18.2-386.2.
[22] (2017) 10 S.C.C. 1.
[23] Justice K. S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1.
[24] Section 67, Information and Technology Act, 2000.
[25] Section 67A, Information and Technology Act, 2000.
[26] Section 67B, Information and Technology Act, 2000.
[27] Section 66C, Information and Technology Act, 2000.
[28] Section 66D, Information and Technology Act, 2000.
[29] Section 69A, Information and Technology Act, 2000.
[30] T. Pradeep & Aswasthy Rajan, A Critical Study on Cyber Defamation and Liability of ISPS, 119(17) International Journal of Pure and Applied Mathematics, 1717, 1719 (2018).
[31] Shivi, Defamation Laws and Judicial Intervention: A Critical Study, ILI Law Review, 170, 175 (2016).
[32] Section 499, Indian Penal Code, 1860.
[33] Section 500, Indian Penal Code, 1860.
[34] Section 66A, Information and Technology Act, 2000.
[35] A.I.R. 2015 S.C. 1523.
[36] Section 469, Indian Penal Code, 1860.
[37] Section 124, Indian Penal Code, 1860.
[38] Section 503, Indian Penal Code, 1860.
[39] Section 504, Indian Penal Code, 1860.
[40] Section 153A, Indian Penal Code, 1860.
[41] Section 295A, Indian Penal Code, 1860.
[42] Section 14(d) and Section 14(e), The Copyright Act, 1957.
[43] 117 (2005) DLT 717.
[44] Section 57, Copyright Act, 1957.
[45] Section 55, Copyright Act, 1957.
[46] Section 63, Copyright Act, 1957.
[47] Section 2(d)(v), The Copyright Act, 1957.
[48] Section 2(d)(iv), The Copyright Act, 1957.
[49] Amanda G. Ciccatelli, In Honor of April Fools’ Day: Diving Into Deepfakes, IP Watchdog, 01/04/2019, available at: https://www.ipwatchdog.com/2019/04/01/honor-april-fools-day-diving-deep-fakes/id=107878/, last seen at 29/06/2020.
[50] Letter from ECI to Chief Electoral Officers et al., Instructions of the Commission with respect to Use of Social Media in Election Campaigning, Letter No. 491/SM/2013/Communication (25/10/2013), https://perma.cc/Z5VG-PPW9.
[51] Instructions of the Commission with respect to Use of Social Media in Election Campaigning, Supra note 46.
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