Introduction
Deepfakes are manipulated versions of pictures of video where techniques like morphing is used to falsely pretend as someone else. It is a tool of misrepresentation which has an abundance of consequences behind it. Recently, many popular personalities have become victim of the deep fake use.
Currently, there are no concentrated regulations to stop these types of innovations. One of the primary legislations for preventing and prohibiting deepfakes currently in India is the IT Act, 2000. It is under the scope of violation of privacy to circulate or publish of a person’s images in mass media[1].
However, the IT act is not sufficient to tackle the specific need for a Deepfake or AI regulation in the country.
Existing Regulation :
The IT Act, 2000[2] and IT Rules[3] specify provisions for the violation of privacy against an individual and also the appropriate punishments.
Punishments :
Section 66A provides that any person who sends offensive or false or misleading information through message is punishable with 3 years along with fine.
Section 66C of the Act provides that if any person does an act which impersonates another person through signature or unique identification feature, shall be punished for 3 years.
Section 66E provides for the violation of privacy against any person. It includes publishing or captures obscene images without consent, shall be punished for three years alongside a fine of upto Rs.2,00,000.
The punishment fir publishing any form of obscene material shall be punished under Section 67 and Section 67A provides punishment for publishing any sexually explicit act. Section 67B punishes any person for transmitting or publishing any obscene media of children.
IT rules :
Rule 3(1)(b) gives directions to intermediaries. Intermediaries are the controllers of data and stores data for their internet application or websites.
Intermediaries are defined under Section 2(w) as:
“―intermediary, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”
Rule 3(1)(b) states that :
No intermediary shall host, display, modify, publish, transmit, store, update or share any information that :
- Belongs to another person
- The content is obscene, invasive of bodily privacy of another person, encourages money laundering etc.
- Such content is harmful to a child
- It infringes any intellectual property
- It misleads the viewer about the origin of the message or communicates any misinformation through its interface.
- Impersonates another person
- Is a public threat to the security and sovereignty of India.
However, the IT Act provides that the intermediaries will not be liable under Section 79(1) of the Act :
Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.”
MeitY Advisory notification :
The Ministry of Electronics and Information Technology issued an advisory notification governing the intermediaries to follow the IT rules in prevention of circulating deepfakes.
The advisory notification mentions that the users needs to be specifically mentioned about the type of content which is prohibited under the IT rules. The communication should be in precise language and must be easily interpreted. The ministry also advised to set up regular reminders to the users on the prohibited content, for example during every login or while registering as a new account in the interface[4].
The users must be informed about the penal provisions attracted to the violation of Rule 3(1)(b) of the IT rules. The penal laws attracting Rule 3(1)(b) are the IPC and the IT Act. It specifies that in the terms and conditions of the application, the intermediaries must clearly highlight that intermediaries/platforms are under obligation to report legal violations to the law enforcement agencies under the relevant Indian laws applicable to the context[5].
The advisory also emphasised on the Rule 3(1)(b)(v) which states that :
Any content which :
“deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature” shall be removed by the intermediary as a part of their duty.
Furthermore, it added that It is the responsibility of platforms to make reasonable measures to stop users from hosting, displaying, uploading, altering, publishing, sending, storing, updating, or distributing any content that is forbidden on digital intermediaries or information connected to any of the 11 mentioned user harms[6].
Does AI and deepfake need separate legislation :
The IT Act and IT rules no doubt provide an extensive scope for covering AI and deepfake violations. However, the regulations are ex-post regulations. It means that the scope for preventing these issues beforehand is not covered by the Act. The Act and the Rules only provide for the remedy after the damage has been done.
Innovations and new technological advancements is not the drawback of AI and deepfakes, it is the misuse of such which is causing a huge gap between privacy and technological advancement. The mechanism of “cure after damage” should be changed.
It is advised that the technological framework should be of ex-ante regulation which follows the mechanism of preventing a wrong to happen.
It was also stated that the MEITY has no legal enforcement and therefore the big companies and intermediaries are not legally binding to follow the advice [7].
Conclusion :
Things are not what they seem. Especially with the developing technology, it is hard to identify the origin of a particular media format. It is essential for a country like India which has a huge number of internet users to have specific legislation which extends the scope of regulating artificial intelligence and deepfakes.
It is important to recognize the need for artificial intelligence in the existing work culture of the country, however, it should not be done at the expense of violation of one’s right to privacy which is protected under the Constitution along with the new DPDP Act, 2023
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Written by- Sanjana Ravichandran
[1] Abha Shah and Nitika Nagar, The deepfake Dilemma : Navigating truth and deception in Today’s digital era, MONDAQ (Dec 14, 2023) https://www.mondaq.com/india/new-technology/1401876/the-deepfake-dilemma-navigating-truth-and-deception-in-todays-digital-era#:~:text=Deepfake%20technology%20refers%20to%20a,of%20deep%20learning%20and%20fake.
[2] The information Technology Act, 2000 (Act. No 21 of 2000)
[3] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, G.S,R. 139(E), published in the Gazette of India.
[4] Deep Fake issue : IT ministry tells social media platforms to comply with rules or face action, MINT (Dec 26,2023) https://www.livemint.com/technology/tech-news/govt-ministry-deepfake-advisory-content-not-permitted-it-rules-must-be-clearly-communicated-to-users-11703598291391.html
[5]PIB Delhi MeitY issues advisory to all intermediaries to comply with existing IT rules, PIB
( 26 DEC 2023 6:34PM) https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1990542#:~:text=The%20directive%20specifically%20targets%20the,clearly%20and%20precisely%20to%20users.
[6] India: MeitY set to introduce regulations on deepfakes, ONE TRUST DATAGUIDANCE (Nov 23, 2023) https://www.dataguidance.com/news/india-meity-set-introduce-regulations-deepfakes
[7] Aaratrika Bhaumik, Regulating deepfakes and generative AI in India | Explained, THE HINDU (Dec 4, 2023) https://www.thehindu.com/news/national/regulating-deepfakes-generative-ai-in-india-explained/article67591640.ece
