“In the digital age, information is power, and the internet has become a battleground for the manipulation of information.”
These words were spoken by Noreena Hert which perfectly captures the essence of the abrupt and horrendous rise of deepfakes, with the rapid advancement in technology, deepfakes developing technology experienced a swift ascendancy in recent years which has blurred the lines between reality and fabrication. It’s no joke how rapidly the concept of deepfakes has taken over not only this a humongous number of apps were available in the market like FaceSwap, Zao, etc. which were great helping hands in developing deepfakes, now not only cyber criminals or online trollers but individuals with no extensive technical expertise even students had full access to these pre-trained machine learning models.
In an exceedingly brief duration, this turned into something graver and the dissemination of intimate pictures or videos with malicious intent including blackmail, revenge, and humiliation started to weaponize against people, Now the biggest question arises how and what will safeguard people from being victimised by these degrading practices? India per se has some laws to combat deepfake technology but there’s an urgent need to introduce more specific and effective laws, the way deepfakes are becoming widespread and having horrendous impacts the laws that provide very little protection might not be able to safeguard the rising threat imposed by this practice
The Deepfake Conundrum
In a world where everyone is trying to fix the broken reality, the emergence of deepfakes has made it nearly impossible to escape the perplexing and unsettling conundrum that has arisen. Deepfake is the malevolent technology that ushers to the development of synthetic media, creating hyper-realistic manipulative content that deceits the authenticity of the content, managing to fool and influence a large number of people. This technology fabricates content resulting in people doing and saying things that they never did or said[1] all this is possible because of the machines that work on learning algorithms particularly Generative adversarial networks (GAN)[2], which have a prominent say in the generation and manipulation of various types of data.
Deepfake imposes serious threats and targets the vulnerability of thousands of people, to aid this India does have some laws that can provide relief to those in need, namely section 66E of the Information Technology Act “Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both[3].” Section 66 D of the Information Technology Act “Whoever, by means of any communication device or computer resource cheats by personating, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees[4].” Some provisions of the Bharatiya Nyaya Sanhita,2023 which accounts for defamation, forgery, sedation, and voyeurism[5] plus some provisions from the Copyright Act, 1957 but the biggest dilemma is that the Indian legal framework doesn’t provide specific laws against deepfakes, these existing laws will be aidful to a certain extent but to shield the vulnerability of people against the rising dangers imposed by deepfakes, calls for better laws in India.
The Revenge Porn Menace
The adversities of deepfake don’t stop there, eventually, it took the form of disseminating intimate pictures and videos, swapping faces of people, and turning them into pornographic content without their consent, it’s no surprise that moments shared in confidence can be enhanced for destructive purposes with the help of technology, not only this revenge porn have a significant ramification in the political arena too and famous people are subject to the same. These pictures and videos are usually shared with the motive of blackmailing, humiliating, exploiting, and demeaning the person, often as an act of revenge. There are a tremendous number of cases of victimizing the people of these dreadful practices. Rana Ayyub, an investigating journalist was also a victim of revenge porn when a pornographic video with her face morphed was broadcasted in 2018[6].
There is a big market for revenge porn, a large number of people bearing large amounts of content, ready to throw it in the hands of the internet. The problem doesn’t stop here Internet is like another universe we are living in which is boundless and unstoppable, no matter where you are, or how cautious you are, you are constantly on the radar and can be subject to this unfortunate practice. Laws in India can give provisional relief, but the expanding scope of these disastrous practices needs more specific laws that shall cover the wide periphery of what these activities might turn into. Indian legal system provides laws that could be used under normal circumstances, they are covered under the provisions of the Indian Penal Code, 1860, Information Technology Act, 2000 plus under the Indecent Representation of Women (Prohibition) Act (IRWA). [7] These laws will provide aid about voyeurism, protecting the modesty of a woman, defamation, criminal breach of trust, and sexual harassment, some sections also deal with publishing or transmitting obscene and sexual material through an electronic mode whereas some sections penalize breach of confidentiality and privacy. Although there are plenty of laws offering support still ambiguities are created because all these laws don’t comprehensively address revenge porn.
Lessons from the West
The two global giants the USA and the European Union understood the grievous nature of rising technology developing deepfakes and revenge porn. They have provided specific and extensive laws that have overcome the uncertainty of laws that currently India’s legal system faces. New York City the heart and soul of the USA is also referred to as “the city that never sleeps” because it’s the center of global trends and events and has acknowledged the importance of giving immediate attention to the formulation of a justice system that fights back against these heinous crimes and other internet abuse, regarding this New York City Administrative Code 10-180, Unlawful Disclosure of an Intimate Image, or New York Penal Law 245.15, Unlawful Dissemination or Publication of an Intimate Image criminalizes revenge porn and deepfakes as it is wrapped under the same definition, this penal law provides the same provisions in Manhattan, Brooklyn, Westchester, Rockland, Putnam, Dutchess or any other county or municipality[8], in a further effort the USA has introduced bipartisan Deepfake Task Force Act, to deal with the deepfake technology the homeland security will form a task force to look into the rising proliferation of deepfakes[9].
Next comes the European Union which has been constantly working to provide efficient laws against deepfakes and revenge porn, the EU has crafted a separate organization known as the Budapest Convention, it is the first even convention which has ever paid stress on harmonizing and addressing laws over the internet. The United Kingdom and France have taken the initiative to make more relevant and feasible laws to protect their people, the UK has already passed specific legislation criminalizing revenge porn, sharing of private pictures or videos and this was made possible by the criminal justice and courts act, 2015. On the other hand, France has adopted the Digital Republic Law which protects the victims of revenge porn, and the perpetrators are convicted for transferring intimate pictures or videos without the consent of the person concerned[10], and many more European countries like Spain, Sweden, and Belgium have created a strong legal framework regulating the menace created by these malicious activities.
Looking at the initiatives and legislative advancements in the two global world powers, it is high time India also reforms its laws and creates a safer and more effective legal framework protecting its people from the evolving digital perils. Currently, India’s legal system somehow doesn’t accomplish the desired goal, as an example of how there’s a need for reforms in India against revenge porn, there was a case in Delhi known as Air Force Bal Bharati school case where a student in a classroom as a revenge of his classmates calling him ugly created a site http//: http://www.amazing-gents.8m.net which functioned as a free space for the school students where illicit sexual descriptions of girls and teachers were posted in written form calling them with sexual names and sharing the desire to do with them. A case was filed against the student after a boy talked about the site to a girl who featured on the site. The student was sent to juvenile for a week and was released.[11] Hence an urgent need for legal reforms.
Legal Quagmire
Deepfakes and revenge porn practices are dangerous but what’s more dangerous than that is the lack of existing legislation for regulating these practices. This jeopardizes everyone from celebrities to political personalities even the common people who are using the internet and uploading anything either publicly or privately, the legal vacuum poses a notable risk to people all over the world, it’s no surprise that the internet is interconnected today’s world making the internet limitless where it overrides the jurisdictional boundaries. With unlimited access to the internet perpetrators from anywhere in the world, can easily target and victimize people living within the jurisdiction of India, not only this they can also derail peace and pose serious threats to national security by just posting any fabricated content while being at the comfort of their home within some other jurisdiction. This inflicts major concerns about the cross-border deepfake and revenge porn offenders, with no definite physical boundaries it becomes difficult to determine the jurisdiction under which the offender shall be held. Cross-border offenders do complicate the legal issues but wait until anonymous offenders come into the picture, there are the perpetrators who conceal their identities online by using some proxy server or virtual private network (VPN) [12]which helps them hide their IP address making it more complicated and challenging to find the offender and decide the jurisdiction.
Establishing international jurisdiction and cooperation has become so important in the aspect of the global legal framework because when states go beyond the jurisdictional border, they can encroach upon the sovereignty of other nations[13] which could raise tensions among the nations. Even if the offender has been identified they cannot be extradited because the international jurisdiction under which the offender is residing might not allow extradition or might not have any treaties with India about the extradition of the perpetrators another dilemma is that countries may have different laws concerning the same issue or some countries might not even consider something as a crime unlike the others. All these jurisdictional issues make it challenging to serve justice to those who have been victimized.
It’s time for the world to come together as there is an urgent necessity for the establishment of a robust and effective global legal framework that addresses the alarming concerns regarding deepfakes and revenge porn practices. International treaties should be formed addressing cross-border cybercrimes, demarking jurisdictions, and establishing proper norms and laws under which cross-border offers can be held, though there are some treaties taking stand against cybercrimes like The Paris Call for Trust and Security in Cyberspace and The Budapest Convention on Cybercrime[14], these treaties are non-binding and don’t specifically talks about deepfakes and revenge porn and the jurisdictional issues which coexist with them. The formation of new, more efficient, and more practical and should focus on providing solutions to our concerns. Moreover, extradition treaties should also be incorporated as it is very important to set mutual grounds on which nations can agree on legally transferring individuals who are accused of some crime in other nations, these kinds of treaties are important so that offenders are found guilty, and justice can be served.
Another legal Quagmire that the legal framework is unable to address is that heinous crimes like these which alter a person’s life are enforced with insufficient and narrow remedies. Any person who has been subjected to these injustices is provided with very few remedies in their hand, they can seek restraining orders against the perpetrator, which will only provide protection to a level, but it will not stop the abuse against the victim, or they will be provided with damages which in no world can make up for the harassment, character assassination and the emotional damage it has caused. Even if we stretch the perpetrators are held accountable and are put behind bars for a time period which is not enough to justify what they have done. Indian legal framework consists of the Indian penal code, the Information Technology Act, etc. which provide remedies, but they fail to understand the complexities of these digital threats, and victims are left with limited avenues for seeking redress.
The Indian legal framework should bring reforms and introduce laws that are effective in the cases of digital threats and understand the turmoil that the victims have to go through, new and strict penalties should be imposed on the offenders which halts them to a certain extent. Laws that hold online platforms responsible for hosting explicit and harmful content on their platform, should enable them to remove that content instantly. These are the reforms which shall make the legal framework occupied with relevant laws to deal with deepfakes and revenge porn.
Conclusion
Concerns about privacy, security, and justice in the digital age have grown significantly as a result of the spread of deepfakes and revenge porn in India. The distinction between reality and manipulation has been muddled by these harmful practices with the use of cutting-edge technology. Although Sections 66E and 66D of the Information Technology Act in India address some aspects of these concerns, they fall short of the clarity and breadth needed to properly address deepfakes and revenge porn. Deepfakes, which are powered by machine learning algorithms like Generative Adversarial Networks (GANs), produce created content that is incredibly lifelike and can fool and control a large audience. India’s current regulations are insufficient to meet the complexity of deepfake technology. Deepfakes’ evil offspring, revenge porn, involves the maliciously motivated non-consensual sharing of intimate content. Although the Indian Penal Code and the Information Technology Act can offer some legal redress, they do not fully address the complex concerns related to revenge porn.
Comparatively, nations like the United States and the European Union have acknowledged the seriousness of these online dangers and have passed comprehensive legislation to address them. For instance, New York City has a single term to criminalize both deepfakes and revenge porn. To address the growing prevalence of deepfakes, the USA even created a Deepfake Task Force. Through conventions like the Budapest Convention, the European Union has also made tremendous progress in defending its citizens from these evil practices. But because these digital dangers frequently cross international borders, India is in a legal bind. Anonymous offenders make issues worse by hiding their identity by using virtual private networks and proxy servers. This makes it extremely difficult to find them and bring charges against them. India urgently requires a worldwide legal framework that addresses cross-border cybercrimes, sets distinct jurisdictional lines, and makes the extradition of offenders easier in order to handle these issues. Despite the existence of some conventions like The Budapest Convention, they are not explicit enough to address deepfakes and revenge porn. In order to address these new challenges, new treaties need to be robust and useful. India must also update its internal legal system to provide victims with more powerful remedies. Such actions would be discouraged, and victims would receive the justice they merit if perpetrators were subjected to harsher punishments and online platforms were held accountable for posting damaging content. In conclusion, the digital age’s privacy and security are seriously threatened by deepfakes and revenge porn. To safeguard its citizens from these increasing digital dangers, India must modify its legal system, taking cues from international best practices. Comprehensive, useful, and aimed at securing justice and security in the digital age, reforms should be made. We take pride in the power of the Internet and we believe in harnessing the potential of the Internet in good ways but will no longer put up with the assault, this dark side of the Internet has to offer.
[1] Deepfakes and its Iniquities : Regulating the Dark Side of AI, 5.1 NLUO SLJ (2020) 41
[2] Emerging Technologies and Law: Legal Status of Tackling Crimes Relating to Deepfakes in India, 2023 SCC OnLine Blog OpEd 22
[3] Information Technology Act, 2000
[4] Information Technology Act, 2000
[5] Bharatiya Nyaya Sanhita,2023
[6] Rana Ayyub, “I was the Victim of a Deepfake Porn Plot Intended to Silence Me” (HuffPost, 21-11-2018)
[7]Raslin Saluja, “What to do if you are a victim of revenge porn” https://blog.ipleaders.in/ [24th September,2023]
[8] Unlawful Dissemination or Publication of an Intimate Image: NY Penal Law 245.15.New York Lawyers, https://www.new-york-lawyers.org/specific-page-title(24sep,2023)
[9] DEEPFAKE Task Force Act Report of the Committee on Homeland Security and Governmental Affairs, United States Senate, to Accompany S. 2559 to Establish the National Deepfake and Digital Provenance Task Force, and for Other Purposes.
[10] LUCY CLARKE-BILLINGS, “Revenge Porn Laws in Europe, U.S. And Beyond,” Newsweek
[11] Mohammed Marzuk T.M., Vijayasarathy R., & Madona Mathew, “Revenge Porn: A Peep into its Awareness among the Youth of Tamilnadu, India,” Volume 11, Issue 3, July- September, 2023 (page 209).
[12] How to Hide Your Identity Fast,” WhatIsMyIPAddress.com, https://whatismyipaddress.com/ (24th September, 2023).
[13] Aryan Raj Singh, INTERNATIONAL JURISDICTION (June 12, 2023).
[14] Abdul, “Paris Call for Trust and Security in Cyberspace” – Microsoft Urges India to Join in,” (April 17, 2021), [forumIASor the hindu].
Author: Anvi Vijay
Juris Centre 