Author – Manyata sisodia Student at – guru gobind singh indraprastha university
To the Point
Deepfake technology has raised serious legal and ethical concerns in India. As the technology becomes more accessible, it poses threats to individual rights, public order, and national security. This article explores the existing legal landscape in India, identifies legislative voids, and recommends a robust framework to combat the menace while balancing free speech and technological advancement.
Use of Legal Jargon
Right to privacy, criminal defamation, electronic evidence, cyber jurisprudence, intermediary liability, mens rea, obscenity, penal sanctions, public mischief, prior restraint doctrine, digital forensics, data protection, content moderation, takedown compliance, vicarious liability.
Abstract
Deepfake technology refers to AI-generated synthetic media that can convincingly replicate real people’s appearances and voices. While it has potential uses in entertainment, education, and accessibility, it also opens the door to misinformation, character assassination, revenge porn, cyberbullying, political disinformation, and fraud. This article provides a detailed legal analysis of how Indian laws currently address deepfakes, highlights legislative and enforcement gaps, and recommends a comprehensive legal and policy framework. It also explores comparative international models, relevant Supreme Court judgments, and anticipatory policy recommendations that could guide Indian legislators and courts in the near future.
The Proof
- What are Deepfakes?
Deepfakes use artificial intelligence, particularly machine learning models like Generative Adversarial Networks (GANs), to create fake yet highly realistic audio-visual content. These can depict individuals saying or doing things they never did, making them particularly dangerous in the realms of misinformation, blackmail, and digital impersonation. Their rapid proliferation on platforms like Instagram, TikTok, and YouTube has made it easier for malicious actors to exploit them.
- Legal Framework in India
Currently, India does not have a standalone law that regulates deepfake content. However, existing statutes provide some degree of legal protection:
Section 66D, IT Act, 2000: Punishes cheating by personation using communication devices.
Section 67 & 67A, IT Act: Address the transmission of obscene or sexually explicit content electronically.
Section 500, IPC: Penalizes criminal defamation.
Section 292, IPC: Relates to the sale or distribution of obscene material.
Section 354C, IPC: Addresses voyeurism, applicable in deepfake pornography.
Section 505(1)(b), IPC: Covers statements conducing to public mischief.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: Prescribe due diligence and takedown obligations for intermediaries.
However, these provisions are reactive rather than preventive and suffer from enforcement and evidentiary challenges.
- Judicial Interpretation
Justice K.S. Puttaswamy v. Union of India (2017): Declared the right to privacy as intrinsic to Article 21. Deepfakes are a direct infringement on informational autonomy, bodily integrity, and decisional privacy.
Shreya Singhal v. Union of India (2015): Though it struck down Section 66A of the IT Act for being vague and overbroad, the court affirmed that intermediaries can be held liable if they fail to act after receiving actual knowledge of illegal content.
Aveek Sarkar v. State of West Bengal (2014): Interpreted obscenity in light of community standards. This judgment is relevant to deciding whether a deepfake crosses the legal threshold of indecency.
- Gaps and Challenges
Absence of a Definition: The term “deepfake” is not legally defined in any Indian law, making enforcement ambiguous.
Mens Rea and Intent: Establishing criminal intent is difficult since tools are widely available, and content often goes viral without traceable origins.
Cross-Border Jurisdiction: Offenders often reside outside Indian jurisdiction, making extradition and enforcement complex.
Burden on Victims: Victims often have to bear the financial and emotional cost of initiating takedown and legal action.
Platform Liability: Safe harbor under Section 79 of the IT Act limits liability unless platforms are proven to have prior knowledge.
Case Laws
- K.S. Puttaswamy v. Union of India (2017)
Recognized privacy as a fundamental right. Deepfakes can severely violate privacy by creating false representations, particularly in intimate settings.
- Shreya Singhal v. Union of India (2015)
Upheld the constitutionality of reasonable restrictions on free speech. The case emphasized the importance of clarity in penal provisions.
- Aveek Sarkar v. State of West Bengal (2014)
Established that the test for obscenity must be based on contemporary community standards, making it relevant for deepfakes portraying nudity or sexual content.
- Swami Ramdev v. Facebook Inc. (2019)
The Delhi HC held that global takedown orders could be imposed by Indian courts under Indian law, expanding the power of courts to curb deepfakes hosted on foreign platforms.
Arguments in Favour of Regulation
- Protection of Individual Dignity 👥
Deepfakes have been used to target journalists, celebrities, politicians, and common citizens. Women are disproportionately victimized through deepfake pornography, leading to social stigma and mental trauma.
- Safeguarding Democratic Processes 🌍
Fake videos of political leaders can swing public opinion, erode trust in democratic institutions, and create communal disharmony during elections.
- National Security 👮♂️
Deepfakes can be weaponized for espionage, fake military communications, or diplomatic misinformation, posing threats to internal and external security.
- Preserving Public Trust in Digital Media
Public confidence in video and audio content is vital for journalism, evidence in courts, and everyday communication. Regulation will help preserve this trust.
Arguments Against Overregulation
- Chilling Effect on Free Speech 📝
Overly broad definitions and vague laws could suppress satire, parody, and artistic expression, violating Article 19(1)(a).
- Innovation and Technological Progress
Overregulation could discourage AI innovation in areas like accessibility (e.g., creating assistive tools for disabled individuals).
- Impractical Enforcement
Expecting platforms to pre-screen millions of uploads for deepfakes is technologically challenging and financially demanding.
- Risk of Misuse by the State
Governments may use anti-deepfake laws to suppress dissent and criticism under the pretext of misinformation.
International Perspective
European Union: The EU AI Act (2024) mandates labeling of deepfakes and restricts high-risk AI systems. It balances innovation and fundamental rights.
United States: State-level laws like those in Texas and California prohibit malicious deepfakes during elections. The proposed DEEPFAKES Accountability Act seeks mandatory disclosure.
China: Requires synthetic content to be clearly labeled. The Cyberspace Administration of China (CAC) enforces strict takedown and compliance rules.
UK Online Safety Bill (2023): Obligates platforms to remove harmful deepfake content and imposes fines for non-compliance.
Conclusion
Deepfake technology represents a double-edged sword. While it has creative and educational potential, its misuse poses serious legal, ethical, and societal threats. India’s current legal framework is inadequate to deal with these challenges comprehensively. A multipronged approach is needed—one that defines deepfakes legally, empowers victims with legal recourse, imposes proportional liability on intermediaries, and encourages responsible AI development. Regulatory clarity, judicial oversight, and international cooperation will be key to navigating this complex legal terrain.
FAQs
- Are deepfakes currently illegal in India?
Not specifically. However, existing provisions under IPC and IT Act can be invoked depending on the nature of the content and intent.
- What laws apply to deepfake pornography?
Sections 67, 67A of the IT Act, Section 354C (voyeurism), Section 292 (obscenity) IPC, and the Indecent Representation of Women (Prohibition) Act, 1986.
- Can social media platforms be held liable?
Yes, but only if they fail to act after receiving actual knowledge. Section 79 IT Act provides safe harbor until such knowledge is established.
- Is there any ongoing legislative development in India?
Yes, the Digital India Act is in the drafting stage and is expected to address AI misuse and emerging threats like deepfakes.
- What should victims of deepfakes do?
They can file a cybercrime complaint at the local police station or through the National Cyber Crime Reporting Portal. Civil defamation and privacy suits may also be filed.
