This article is written by Harleen Kaur of B.A.LLB. (Hons.) of UILS, Panjab University, Chandigarh, an intern under Legal Vidhiya
ABSTRACT
This article deals with the online expression in the forms of encroaching and violating forms of content such as deepfakes and revenge porn. The way the technology has made it accessible to violate a person’s privacy, is actually intimidating. The concept of deepfakes and revenge porn has been discussed in this article. The article mainly focuses on the legal framework to deal with such content, and even the platforms where such content is uploaded, distributed and transmitted. In India, there is no such specific legislation for the same, but different legislations such as Indian Penal Code, Information Technology Act, etc. touch upon various aspect of such forms of online expression. The Government also play an important role in verification of such content. These immoral acts affect the victims in more ways than one, which makes it very important to be able to control these activities and protect the privacy of every individual.
KEYWORDS: non-consensual pornography, deepfakes, revenge porn, intermediary, blockchains.
INTRODUCTION
The internet has no boundaries and its scope is expanding every day. This brings a possibility of a dark side emerging. The technology is dynamically progressing. With such progress also comes new ways of breach of law which were completely unheard of before. Recent advancements in the field of Artificial Intelligence (AI) have perpetuated the ability of individuals to create, modify and manipulate digital content. As a result, there are not enough laws to deal with such situations as laws develop in accordance to the needs and goals of the society. It is not possible to tackle such breaches with the existing laws.
One example of such breaches is non-consensual pornography (NCPs). This is covered both under the civil law and criminal law. Such cases happen outside the digital world as well but the digital world has made it easier for people to engage in such acts. It makes it easy to infringe a person’s privacy.
Around 90% of the victims of NCP are women[1]. There are numerous websites which provide perpetrators with a platform for NCP. For instance, first revenge porn website was created 2010 by Hunter Moore.
In this article, there are two types of NCPs focused upon in this article—revenge porn and deepfakes.
What are deepfakes?
Deepfake is any video, audio or otherwise which is wholly or partially fabricated or has been manipulated to look like something it originally is not. There are numerous applications available which are used to create such content in order to manipulate faces, bodies, expressions, language, etc. These have been around for years and is constantly increasing.
Deepfakes are hyper-realistic videos which are digitally altered to represent individuals saying and doing things that never occurred. This concept has devastating societal consequences as these can prove to be very dangerous. There have been situations where fraudsters are circulating celebrity deepfakes to steal cryptocurrencies using such deepfakes.
This technology can, however, also be used to nab criminals, animated story telling, voice regeneration for the one’s who’ve lost their voice. Still the negatives outweigh the positives by a lot.
What is revenge-porn?
Online revenge porn has also grabbed a lot of attention.
According to Citron,
“The term has been used as an acronym for unconsented distribution of sexual, or intimate material, often with personal information linked with an intent to cause harm or damage of reputation of the depicted person.”[2]
As per the term ‘revenge pornography’ is understood is terms of the distribution of intimate images, yet such practices also encompass the creation of images without which includes the covert filming, recording or photography of another person as well as the threats to distribute nude, sexual or sexually explicit images.[3]
As per Merriam-Webster dictionary,
“Revenge porn is the “sexually explicit images of a person posted online without that person’s consent especially as a form of revenge or harassment.”
The motive is revenge which could be due to many reasons such as a failed relationship, conflict, hatred, etc. Research indicates that revenge pornography occurs during relationship breakdowns which leads to the situation where one partner may upload private, sexually explicit moments of/with the victim as a way of taking their revenge. This is also known as ‘image based sexual exploitation’ or ‘image based sexual abuse’. It may or may not be obtained with the consent of the victim at the time but posted later on without consent and illegally. So, it also comes under the concept of NCP.
LEGAL PROVISIONS
The World Intellectual Property Organisation (WIPO) published the Draft Issues Paper on Intellectual Property Policy and Artificial Intelligence[4]. This addressed the problems relating to Intellectual Property Rights specifically regarding deepfake technology with content that is copyrighted. Copyright infringement can cause serious problems such as violation of right to privacy, human rights, etc.
Legal Framework in India
- Right to Privacy
In K.S. Puttaswamy v. Union of India[5], right to privacy was recognized as a fundamental right by Supreme Court of India. It was provided that it emanates from Article 21. This right also covers ‘informational privacy’ which means that an individual may have control over the dissemination of material which is personal to him. It even covers digital privacy under the realm of information privacy.
- Specific Legislations
There is no such particular legislation specifically focused on deepfake technology.
Section 52 of Indian Copyright Act is the only provision can tackle these issues. It provides an exhaustive list of works that can be considered as infringement of copyrights and also provides a difference between bonafide and malafide users of the protected work. This provision is based on Article 13 of TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement which provides,
“members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of right holder”
Section 67 and 67A of Information Technology Act, 2000 provides punishment for publishing sexually explicit material in electronic form, and under Section 79 of the Act provides for unlawful content to be taken down immediately after actual knowledge or by court order.
Section 500 of Indian Penal Code provides punishment for defamation but does not provide a framework for dealing with situations where it is via technology such as deepfakes.
In the case of Sunilakhya v. HM Jadwet[6], it was provided that intention to cause harm to one’s reputation is the sine quo non for defamation.
So, content such as deepfakes would amount to libel as it includes any kind of visual representation.
For revenge porn as well, there is no such law to deal with the same. IPC and IT Act touch the subject in certain provisions but not entirely. This act attracts the following provisions such as-
- Indian Penal Code
Section 292 which deals with distribution or circulation of obscene material.
Section 354C which deals with capturing or dissemination of pictures of a woman engaged in a private act without her consent.
Section 499 that deals with the act done by a person intending to harm or having a reason to believe the same would harm an individual’s reputation or character
Section 509 deals with act intended to insult the modesty of a woman.
- Information Technology Act
Section 66E provides that violation of privacy, publishing or transmitting obscene material in electronic form.
Section 67A deals with publishing or transmitting of material containing sexually explicit act, etc. in electronic form.
Section 67B was added to the IT Act after the 2008 Amendment. This was added in compliance with the Convention on the Rights of the Child (CRC), which India is a signatory to and has also ratified the optional protocol on the State of Children, Child Prostitution and Child Pornography. This section criminalizes every type of pornography.
Section 72 deals with breach of confidentiality and privacy.
Moreover, “Intermediary Liabilities under IT (Intermediary Guidelines) Rules[7]” prescribed, amongst other things, guidelines for administration of takedown by intermediaries. Section 2(w) of the IT Act defines that an ‘intermediary’ with respect to any particular electronic message means ‘any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message’.
As per Rule 3 of the 2011 Guidelines, an intermediary has not only to publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary’s computer resource but he has to also inform all the words of the various matters set out in Rule 3(2).
But the problem with this rule is that the definition of intermediary is vague. There is a need for more definitive explanation for the same for proper application.
In the case of State of West Bengal v. Animesh Boxi[8], it was considered the first-ever case of revenge porn. The accused was in an intimate relationship with the victim. During the course of relationship, he obtained intimate pictures of her. The victim later broke off the relationship. In order to take revenge, the accused uploaded these pictures on pornographic sites with her father’s and her information. The accused was convicted under section 354, 354A, 354C and 509 of IPC along with Section 66E, 66C, 67 and 67A of IT Act.
The Court even directed the State Government to treat the victim as a rape survivor and provide her with appropriate compensation.
In the case of Shreya Singhal v. Union of India[9], the Supreme Court struck down Section 66A of the IT Act. This provision specifically addressed the offence of cyber defamation. It provided the punishment regarding sending any information by computer resource which is offensive or has threatening or menacing character; or if it is for the purpose of causing annoyance, danger, insult, injury, hatred, ill will, etc. It was held that this provision is unconstitutional because it violates the fundamental right of speech and expression under Article 19(1)(a) of the Constitution.
Other Related Offences
If the deepfakes are used in which forged versions of the original content are used then the perpetrator would be liable to be punished under Section 468 of Indian Penal Code with an imprisonment of three years and a fine.
Where such content is used to bring hatred and disdain against the rule of law and the government set up by the procedure established by law. Such offence would make the person liable under section 124 of Indian Penal Code for sedition.
If the victim is threatened with the intention to harm property or reputation or the body of the person (victim), it would be covered under Section 506 for criminal intimidation.
Copyright Infringement under Section 14 of Copyright Act, 1957 provides that if a copyrighted video is used in such content (a deepfake video) then the copyright owner of a cinematograph film and sound recording has the exclusive right to do or to license making a copy of the film, including photographs of any image forming part thereof or making any other sound recording embodying it, respectively.
In the case of Amarnath Sehgal v. Union of India[10], the author of the copyrighted work can claim damages for infringement of his moral right (identified as a moral right) or otherwise any modification in his work would be against his honor or reputation. A person who does that would be liable to pay compensation to the rightful owner of the work or any other damages the court feels suitable to be paid. Such a person would even be punishable with an imprisonment of 3 years and fine upto two lakh rupees.
Also, in the case of Myspace Incorporation v. Super Cassettes Industries Ltd.[11], the Court held that the intermediary would be required to take down any content which infringes the copyright of the owner, upon receiving the notification from the parties, even if there is no Court order received.
- Other Ways to Take Action
The Indecent Representation of Women (Prohibition) Act, 1986 provides a framework where victims can file a complaint against a perpetrator under Section 4 and 6. It prohibits the act of publications, pamphlets, distribution or circulation in form of paper, film, writing, photographs containing indecent representation of women. The offender would be punished with rigorous imprisonment and/or fine.
VERIFICATION OF THE CONTENT
One thing that is very important with such content and technology is to verify whether it is fake or not. In order to do that, a better version of the algorithm has been released. So, it is the responsibility of the government and the public authorities to verify such content. With such technology, it has been observed that it is difficult to control the origin of such content which makes it important for the government to set up certain bodies to analyse the same using the mechanism of blockchain technology. In such mechanism, the blockchains store blocks of data on a decentralized network where anyone can verify the originality of the information by matching with the distinct non-invertible key[12]. Hence, even the slightest data manipulation can be recognized, which is very important to be able to control such content.
COMPARATIVE ANALYSIS
Such acts of encroachment of a person’s privacy using the technological advancements are a global issue. Most countries have enacted laws to address it. Many countries have similar legal provisions but the approach is still different.
For instance, in United States of America, there is a federal law known as the “Intimate Privacy Protection Act”. This Act criminalizes the non-consensual distribution of intimate images. It aims to provides civil remedies for victims, including damages and injunctive relief. It imposes both civil and criminal liability on the distributors.
The United Kingdom has enacted the “Criminal Justice and Courts Act, 2015”. This Act criminalizes the non-consensual distribution of intimate images. Alongside, it provides civil remedies for victims—damages and injunctive relief. It also imposes criminal and civil liability on the initial distributor and any subsequent distributor of such images.
On the other hand, in India, the legal framework is relatively new. The lack of clarity on the legal provisions and their interpretation. It is seen that there is a need for a more robust legal framework to provide more effective remedies and ensure the liability of the intermediaries. Maybe, separate law altogether would be more effective in this aspect. Keeping in mind, the ever-changing nature of these platforms, social media, etc., it is necessary to have a legal mechanism providing atleast a foundation to fall back upon.
CONCLUSION
The technology is changing every day. The law cannot change as fast, which becomes a problem in matters of abuse of technology. Such offences have made the world a very vulnerable place. There is a need to tackle these issues. Technology of producing content such as deepfakes or distributing revenge porn have become very common today. In India, the first protection against all such abuses comes in the form of the right to privacy, covered under the fundamental right of Article 21 of our Constitution. Apart from this, Indian Penal Code also touches upon this matter. The Information Technology Act deals with the same as well, with the Intermediary Guidelines dealing specially with the role of the intermediaries (social media and online platforms) in curbing such unlawful and immoral activities.
However, it cannot be disregarded that the current legal framework is not clear and there is a lot of ambiguity regarding its interpretation and application. There is a need for a more robust legal framework to control such acts.
Any person’s privacy is the most important to their dignity. Once that is encroached, and as easily as it can be done nowadays, leads to dire consequences to the victim and their family.
REFERENCES
- Mania, K. The Legal Implications and Remedies Concerning Revenge Porn and Fake Porn: A Common Law Perspective, 24 SEXUALITY AND CULTURE, 2079–2097 (2020). https://doi.org/10.1007/s12119-020-09738-0
- B. van der Sloot, Wagensveld Y., Deepfakes: regulatory challenges for the synthetic society, 45 COMPUTER LAW AND SECURITY REVIEW, 1-14 (2022). https://www.sciencedirect.com/science/article/pii/S0267364922000632#cit_2
- Pramukh N. Vasist & S. Krishnan, Engaging with deepfakes: a metasynthesis from the perspective of social shaping of technology theory, INTR Emerald Publishing Limited, 1066-2243 (2022), https://iimk.ac.in/uploads/faculty/10-1108_INTR-06-2022-0465.pdf
- Shubham Pandey and Gaurav Jadhav, Emerging Technologies and Law: Legal Status of Tackling Crimes Relating to Deepfakes in India, SCC Online Blog (March 17, 2023), https://www.scconline.com/blog/post/2023/03/17/emerging-technologies-and-law-legal-status-of-tackling-crimes-relating-to-deepfakes-in-india/
- Vartika Singhania, Creation and Detection of Deepfakes- A Socio-Legal Analysis, KnowLaw Blog (July 7, 2021), https://knowlaw.in/index.php/2021/07/07/the-creation-and-detection-of-deepfakes-a-socio-legal-analysis/
- Yash Raj, Obscuring the Lines of Truth- The Alarming Implications of Deepfakes, JURIST – Student Commentary (June 17, 2020, 07:32 PM) https://www.jurist.org/commentary/2020/06/yash-raj-deepfakes/.
- Raj Rathi, Decoding Indian Laws Regarding the Non-Consensual Distribution of Intimate Pictures and Ascertaining the Intermediary Liability, KnowLaw Blog (May 19, 2023), https://knowlaw.in/index.php/2023/05/19/non-consensual-distribution-of-intimate-pictures/
- Prashant Mali, Revenge Pornography Legal Framework in India, 4 INTERNATIONAL JOURNAL OF LAW MANAGEMENT AND HUMANITIES, 2494 – 2510 (2021), https://doij.org/10.10000/IJLMH.111613
[1] Cyber Civil Rights Initiative Survey (2015)
[2] Citron, D.K. Hate Crimes in Cyberspace 2014. Harvard University Press and Hill. Cyber-misogyny. Should Revenge Porn be Regulated in Scotland and if so, how?
[3] Alyse Dickson, Revenge Porn: A Victim Focused Response, Vol 2 (2016)
[4] 2019
[5] (2017) 10 SCC 1
[6] AIR 1968 Cal 266
[7] 2011
[8] GR 1587/2017
[9] AIR 2015 SC 1523
[10] (2005) 117 DLT 717
[11] (2017) DLT 478
[12] https://blogs.lse.ac.uk/southasia/2020/05/21/deepfakes-in-india-regulation-and-privacy/
