Author: Zoya Alam, Alliance University Bengaluru Karnataka
ABSTRACT
With the development of deepfakes using artificial intelligence, a new type of sexual harm has been introduced that the current Indian criminal law is not well equipped to deal with. Deepfake pornography, i.e., superimposing a face of a person onto explicit content without their consent, is a violation of autonomy, privacy, dignity, and decisional agency. Even though some of the provisions of the Indian Penal Code (IPC), the Information Technology Act (IT Act), and the Bharatiya Nyaya Sanhita (BNS) can be applied, the disjointed legal framework does not accept the sui generis character of deepfake sexual abuse. This document supports the legalization of deepfake pornography as a special criminal act, backed by increased punishments, victim-focused solutions, and faster takedown obligations. Based on comparative jurisprudence, case laws, and the policy trends, the article identifies the gaps in the current legislation and goes on to propose a recommendation of a holistic legislative intervention.
INTRODUCTION
A high-tech face-mapping, known as Deepfake technology, has quickly developed as a method of gendered cyber harm since it has transformed a creative technology into an actual mechanism of cyber violence. What initially seemed an innocent digital experiment has now transformed itself into an instrument of harassment, extortion, reputational ruin, and psychological trauma. It has recorded a terrifying surge in the number of deepfake pornography against women, minors, social media influencers, and even everyday people: the publicly available photos of celebrities are abused.
However, even though victimization is so large, the Indian criminal law is still silent concerning the deepfakes as a particular crime. Survivors are left to find their way around a patchwork of provisions, which do not fully embody the wrong, and leave huge gaps in enforcement. It shows that the Parliament urgently needs to acknowledge deepfake pornography as a novel type of sexual offense that must be treated with specific penalties.
Why Existing Indian Laws Are Insufficient
IPC/BNS does not specifically consider sexual imagery fabrication that is digital. Conventional crimes, e.g., an insult to the family, a slander, an obscenity, etc. were written in terms of actual, physical actions. Deepfake pornography is neither a physical violation nor a simple speech crime; it is an image of a person reproduced using technologies without any consent. Even such sections as 66E, 67 and 67A of the IT act consider pornography as something which has been captured or transmitted rather than produced in an algorithmic way.
Lack of the explicit identification of identity appropriation.
Deep fake pornography is based on digital theft of identity although there is no specific crime towards the manipulation of the likeness of a person in Indian law. Personality rights are in the field of civil law, and there is no evident analogy in the criminal field.
Evidentiary complexities
The process of deepfake forensic investigation is quite different compared to standard image verification. In the absence of statutory presumption or the existence of specialized offence, the investigations are prolonged, and victims are usually left with no option.
The trauma is special and worsened.
Deepfake pornography generates a kind of virtual rape a simulation of sexual intercourse without actual physical intercourse but with the same results as bodily violations. Victims suffer:
Ruining of social status.
Fear of public humiliation
Employment consequences
Prolonged psychological damage.
Never-ending re-circulation and viral spreading.
This non-physical yet extremely intrusive sexual harm should be recognized in the law.
The Emergency Requirement of a Special Offence.
A. Deepfake crimes should be considered sui generis.
A dedicated offence would:
plug doctrinal gaps.
ease police registration of FIRs.
give certainty in the context of mens rea.
standardize punishment.
move platform liability onto deepfakes.
B. Sexual autonomy and informational privacy.
After the Supreme Court had acknowledged the concept of privacy in Justice K.S. Puttaswamy v. Union of India, informational privacy involves the control of one in digital identity. Deepfake pornography destroys that authority. There is a special offence which becomes critical to enforce the constitutional safeguards of dignity and autonomy.
C. Deterrence in the AI era
In the absence of certain laws, offenders take advantage of the anonymity and loopholes in technology. Raising the penalties and making it criminal would serve as a deterrent.
D. Adherence to international standards.
In many jurisdictions such as in the UK, parts of the US, South Korea and Australia, legislation has been specifically passed regarding synthetic sexual imagery. India needs to closely match its regime on cybercrime with such global standards.
Proposed Structure of the Special offence.
A competently drafted law may contain:
Definition Clause
Deepfake sexual content should be established as any content that is digitally altered, AI-generated, or artificially created, and presents an individual in sexual activity or sexual, and it should have no connection with the consent of the individual being represented, regardless of whether the body being represented is real or not.
Offence Clause
Criminalization: should include:
Creation
Publication
Transmission
Threats to share.
Intent to distribute possession.
The manufacture of deepfakes through inducement or abetment.
Strict Penalties
Sentence of 3-7 years, increased to 7-10 years in instances of:
Minors
Intimate partners
Public dissemination
Harm to reputation
Extortion or blackmail
Platform Liability
The social media intermediaries should be obligated to:
Embrace deepfake-detecting technology.
Adhere to takedown notices in 24 hours.
Keep up user verification logs.
Work effectively with cybercrime cells.
Victim-centric Provisions
Right to instantaneous deletion of content.
Court-ordered injunctions
Emotional and reputational injury Compensation.
Anonymity in the investigation and trial.
Doctrinal Support and legal views.
Online Sexual Violence as a Contemporary Evocation of Gender-related crimes.
Deepfake pornography does not erase the conventional patriarchal hierarchy of sexual offense, control, humiliation, and violation, and depicts that cyberspace injury is a continuation and not a break of physical harm. The legislation should be changed to acknowledge that cybercrimes cause actual trauma.
Use of the Puttaswamy Principles.
Within informational privacy, the user is free to regulate their image publicity. Deepfake pornography does not consider this right at all, and thus legislation makes it a constitutional obligation.
The Misappropriation of Personality Tort.
The doctrine, despite being formulated under the law of privacy, provides compelling grounds to defend against criminal incursion of one of his or her digital identity. This is where criminal law is necessary to seal the gap in cases of civil remedies deficiency.
The Indian Case Laws regarding Deepfake and Sexual Cyber Harassment.
Although India does not have any specific legal judgments related to deepfake content, some cases may shed light on the jurisprudential basis:
Justice K.S. Puttaswamy v. Union of India (2017)
These claims of identity, dignity, and bodily autonomy are deeply based on the concept of privacy, which is considered a basic right in cases of deepfakes.
Shreya Singhal v. Union of India (2015)
In the process of declaring Section 66A IT Act invalid the Court demystified the issue of intermediary liability in Section 79. This case highlights why there is a need to have a balanced platform liability in the deepfake offences.
State of West Bengal v. Animesh Boxi (2018)
Revenge pornography conviction under 66E, 67 and 67A IT Act. The argument proves that sexual cyber abuse should be severely punished but this case also indicates that the law focuses only on the cases which involve real pictures and not made ones.
K.S. Puttaswamy (Aadhaar-5J Bench) – Informational Sovereignty.
The verdict solidified the right to manage digital identity, which is destroyed by deepfakes.
Deepfake Harms(2023-2024 trends) High Court PILs.
In several states (Delhi, Karnataka, Kerala), various PILs demanded a tighter regulation of deepfakes, indicating that judicial officials recognize the gap in the current legislation.
Conclusion
Deepfake porn is one of the most malicious manifestations of digital sexual violence that has developed in the 21st century. Its damage model, which includes identity theft, reputational destruction, psychological trauma, and irremovable digital trails require a legislative emergency response. The current laws in India despite being able to handle the pieces of the evil do not holistically portray the evil. Resolute deepfake offence is not only theoretically sound, but also a constitutional requirement. India needs to stop being reactive in its policy and create an initiative-taking legislation paradigm that protects autonomy, dignity, and digital sovereignty, especially of the women and vulnerable communities. Deepfake porn should not be criminalized anymore–it is something that must be done.
FAQS
Is deepfake pornography illegal in India?
The IPC, BNS, and IT Act have the means to prosecute it, but there is no crime specifically committed to deepfake pornography. This causes unequal application.
Are victims able to address the police in case they use their pictures in deepfakes?
Yes. The victims are allowed to submit FIRs in cases which related to 66E, 67, 67A IT Act and defamation, sexual harassment, and identity theft. A special law would however streamline the process and expedite it.
Should social media sites be charged with the responsibility of hosting deepfake content?
In the present intermediate system, platforms must take down illegal content when notified to do so. There would be a special deepfake offence that would have stronger obligations.
Why should deepfakes attract another criminal offence?
Since the damage is technologically one-of-a-kind. It includes the appropriation of digital identity, simulated intercourse with AI, and widely spread without any reflection of previous laws.
What are the remedies that should be given to victims?
Immediate deactivation, damages, identity protection, injunction, and assistance of cybercrime departments. These should be codified in a new law.
