Author: Jyoti Singh, Delhi Institute of Rural Development
To the point
As we are emerging in technology, Artificial Intelligence (AI) is also expanding, resulting in deepfake technology creating more problems every day, which is highlighting a concerning problem, especially in judicial proceedings.
This article has highlighted the main problem caused due to deepfakes and how this is a concerning issue while dealing with judicial proceedings. The article will also focus on a legal solution to combat deepfakes, synthetic material like picture, video and audio, generated using AI technology trying to depict something which is not real or such event which may have never happened are deepfakes, they are so real that it turns out to be tough in differentiate between real and manipulated facts Deepfakes also jeopardize evidence which are fundamental part of legal procedure.
Use of legal jargon
Mens Rea- Deepfake can be used with criminal intention to distort true and fabricate the actual evidence, which will cause a delay in the proceeding and would result in compromising justice for both parties.
Prima facie- deepfake could be seen as genuine, but looking in-depth, such kind of evidence lacks the credibility of prima facie.
“Falsus in uno, Falsur in omnibus” means false in one thing, false in everything. If one part of the evidence is proven to be fabricated through a deepfake, then the credibility of the entire evidence will be questioned.
Res gestae- facts which are directly linked to the case, if those facts are fabricated through deepfakes in such a scenario, authenticity and reliability will be at stake.
Section 65A & 65B- Since the shift of the world into the digital era, the legal fraternity of the Indian court has taken into consideration that the use of technology in the proceeding, by using the Information Technology Act 2000 properly and frequently.
Through the amendment in sections 65a and 65 b of the Indian Evidence Act, which is specifically used to question the admissibility of evidence recorded, section 65A lays down special provisions related to electronic records. Section 65 explains the condition of section 65B(4), which talks about the mandatory certificate.
The proof
Deep fakes generally use artificial intelligence and other techniques like generative adversarial networks (GANs). Deepfake software generates fake audio, video, or images, and mimics voices or actions. Since legal procedures are moving towards the involvement of new technology, we have also started admitting digital evidence for any information regarding the facts of the case. Such evidence, before being produced to a court of law, should undergo a major check and balance and fully meet the requirements so that it would be capable of being admitted.
Legal checks and balances
Reliability- whether the evidence produced is from a trustworthy source, it should carry the facts of the case. The code will not admit the evidence which are found to be fabricated, creating unwarranted speculation.
Authentication- the evidence produced should not be manipulated and purports what it says; the court has no room for such evidence which are found to be manipulated and is not a fabricated, and from authentic source.
Expert Verification- Section 45A of the Indian Evidence Act talks about the expert opinion on the electronic evidence, which involves a forensic expert and is necessary to establish the reliability of evidence.
Being fake can be used as evidence in different malicious ways in a courtroom, for example, fabricating the video of the accused while under confession or by including in creating fake surveillance footage or morphing the video.
Abstract
In this article, the authors studied the dangers of deep fakes and how they pose a danger to deepfakes, as well as what legal implications and methods can be adopted to prevent such Mishaps. This advanced creation of artificial intelligence is breaking the line between AI and truth, which leads to a question of the authenticity of traditional courtroom rules while dealing with courtroom evidence. The writer will discuss cases that how court is now keeping up with deepfakes and heading to have strong legislation with high-end protection.
Case laws
1. Anvar P.V Vs P.K. Basheer (2014)
In this landmark judgement, the court emphasises the strong need for compliance with section 65 b of the Evidence Act. The court stated that oral evidence cannot be substituted for the requirement of a certificate under section 65B(4) of the Evidence Act.
2. Shafhi Mohammad Vs State of HP (2018)
The Supreme Court in this case created an exception to section 65 B(4) for the requirement of a certificate in case of a victim; if the victim does not have access to the original electronic evidence, then the certificate requirement can be challenged. But later, in the case of Arjun Pandit Rao, this judgment was overruled.
3. People Vs. Beckley (2023, California)
The court ruled out a deep-fake Video for confession, which was inadmissible because of an unreliable source and tampered with the facts.
4. R.V Allen 2003 (EWCA crime 3100 UK)
The court emphasises the importance of forensic digital analysis in the authentication of evidence.
Conclusion
The interference of the deepfake not only affect the judicial proceeding but also a hazard to constitution, evidence and jurisprudence of legal framework it directly attack article 21 of the constitution which guarantee right to fair trial and right to privacy current legal system is not fully immune to address threats from deepfake are current legal framework like defamation, Cyber law, information technology act are not sufficient to handle such serious problem related to deepfake by providing enough tool and training also introducing mechanism for taking down such things with immediate effect also digital education among people over technology privacy defect must be added in the curriculum for better functioning of the society.
FAQS
1. What is a deepfake?
Deep fakes generally use artificial intelligence and other techniques like generative adversarial networks (GANs). Deepfake software generates fake audio, video, or images, and mimics voices or actions.
2. Are deepfakes admissible in India?
In India, the authenticity of a defect can only be admissible if all the conditions of section 65B of the Indian Evidence Act are fulfilled.
3. Currently, which law deals with deepfakes in India?
Section 65A, 65B, 45A of the Evidence Act. Information Technology Act 2000, article 21 of Indian constitution right to fair trial and right to privacy.
4. What kind of safeguards can be placed for tackling deepfakes?
Mandating blockchain-based time stamping of evidence, motion digital evidence verification, AI-powered authentic scanner, training of judicial officers and investigating officers on emerging trends.
Some of the crucial steps can play a big role in safeguarding society from deepfakes.
