Deepfakes, videos or audio recordings manipulated using artificial intelligence to depict someone saying or doing something they never did, are rapidly evolving from a novelty to a serious societal concern. While they can be used for harmless entertainment, their potential for misuse, including spreading misinformation, manipulating public opinion, and perpetrating fraud, has triggered a complex legal debate. This blog post explores the emerging legal landscape surrounding deepfakes, highlighting the challenges and potential solutions.

The Problem: Deepfakes and Their Multifaceted Threat

The deceptive nature of deepfakes makes them a potent tool for malicious actors. Their potential harms span various domains:[1]

• Political Manipulation: Deepfakes can be used to create false narratives about political candidates or events, influencing elections and eroding public trust in democratic institutions.
• Reputational Damage: Fabricated videos can damage an individual's reputation, both personally and professionally, with potentially devastating consequences.
• Financial Fraud: Deepfakes can be used to impersonate individuals in financial transactions, leading to significant financial losses.
• Extortion and Blackmail: Threatening to release compromising deepfakes can be used for extortion or blackmail.

A Timeline of Legal Responses to Deepfakes

The legal landscape surrounding deepfakes has been rapidly evolving since the technology gained mainstream attention around 2017-2018, initially with manipulated celebrity videos. These early instances sparked initial discussions about potential legal issues, which quickly escalated as the potential for misuse became clearer.[2] By 2019, the financial risks were brought into stark focus with a case in the UK where a firm was defrauded of nearly $250,000 using deepfake voice technology.[3]

This same year saw significant legislative action, with Texas enacting one of the first US laws specifically targeting deepfakes used in political campaigns, marking a pivotal moment in addressing the threat to democratic processes. Around the same time, Virginia also passed legislation, focusing specifically on non-consensual deepfake pornography, highlighting the diverse applications of this technology and the varied harms it could cause. The period from 2019 to 2020 saw increased legislative consideration in many other US states and countries globally, with variations in the scope and focus of proposed laws.

More recently, several high-profile incidents have kept the issue in the public eye. In April 2023, a lawsuit involving a reality TV star and a deepfake app developer (Kyland Young v. NeoCortex, Inc.) brought attention to the intersection of deepfakes and right of publicity laws. In October 2023, Tom Hanks publicly warned about a deepfake ad using his likeness, demonstrating the ongoing threat to public figures. And in early 2024, the spread of explicit deepfakes of Taylor Swift on social media led to increased platform action and public outcry, further pushing for stronger content moderation and legal frameworks. These events, along with ongoing discussions among legal scholars and organizations, demonstrate that the legal response to deepfakes is a dynamic and ongoing process.

Existing Legal Frameworks: A Patchwork Response

Currently, no single, comprehensive law specifically addresses deepfakes in most jurisdictions. However, existing legal frameworks offer some avenues for recourse:

• Defamation Laws: If a deepfake portrays someone in a false and damaging light, defamation laws may apply. However, proving malicious intent can be challenging.
• Intellectual Property Laws: Copyright and trademark laws may be relevant if a deepfake uses copyrighted material or trademarks without permission.
• Privacy Laws: If a deepfake invades someone's privacy by depicting them in a private or sensitive situation, privacy laws may offer protection.
• Cybercrime Laws: In some cases, creating or distributing malicious deepfakes could fall under existing cybercrime laws related to fraud, identity theft, or harassment.

India Existing Legal Approach
India's approach to addressing the misuse of deepfakes relies on a combination of existing legal instruments and growing judicial and governmental awareness. Several key provisions within Indian law offer avenues for recourse against different forms of deepfake misuse. The Information Technology Act of 2000 (IT Act) provides a framework for addressing digital offenses.

Specifically, Section 66D targets instances of cheating by impersonation using computer resources, applicable when deepfakes are employed for deceptive or fraudulent purposes, carrying penalties of up to three years imprisonment and/or a fine of ₹1 lakh.[4] Section 66E addresses violations of privacy, potentially applying to deepfakes that capture, publish, or transmit an individual's image in a manner that compromises their privacy, with similar penalties of up to three years imprisonment or a fine of ₹2 lakh.[5]

Furthermore, Sections 67, 67A, and 67B of the IT Act address the dissemination of obscene or sexually explicit material, which could be relevant in cases involving deepfakes used to create such content.[6] Beyond these, the Copyright Act of 1957 provides protection against the unauthorized use of copyrighted material, such as music or film clips, within deepfakes.[7]

Recent developments highlight the evolving legal landscape. The Anil Kapoor case saw the Delhi High Court issue an injunction against the unauthorized use of the actor's personal attributes, including in deepfakes, underscoring the judiciary's recognition of personality rights in the digital sphere. Additionally, a January 2023 advisory from the Ministry of Information and Broadcasting urged media organizations to exercise caution and label manipulated content, indicating a growing governmental awareness of the issue.

While these existing laws and developments offer a foundation, they also reveal limitations. A comprehensive, dedicated law specifically addressing deepfakes is currently lacking, creating potential ambiguities and gaps in protection. Existing laws may struggle to fully address the unique challenges posed by deepfakes, such as the difficulty of establishing malicious intent and the rapid pace of technological advancement.

Moreover, enforcement can be complex due to the internet's global reach. This highlights the need for targeted legislation that provides a clear definition of deepfakes, criminalizes their malicious creation and distribution with specific penalties, addresses their use in various harmful contexts (including political manipulation and financial fraud), establishes reporting and removal procedures, and promotes public awareness and media literacy.

The Need for Specific Legislation: Addressing the Gaps

The limitations of existing laws highlight the need for specific legislation addressing deepfakes.

Such legislation could focus on:

• Criminalizing the creation and distribution of malicious deepfakes: This could include penalties for using deepfakes to influence elections, defame individuals, or perpetrate fraud.^[8]
• Requiring disclosure of manipulated content: This would involve labeling deepfakes as such, allowing viewers to distinguish between genuine and synthetic media.
• Establishing civil remedies for victims of deepfakes: This would allow individuals harmed by deepfakes to seek compensation for damages.
   

Challenges and Considerations

Developing effective legal frameworks for deepfakes presents several challenges:

• Technological Advancements: The rapid pace of technological advancement makes it difficult for laws to keep up with new deepfake techniques.
• Freedom of Speech Concerns: Balancing the need to protect individuals from harm with the right to freedom of speech is crucial.
• Jurisdictional Issues: The internet's global nature makes it difficult to enforce laws across borders.
   

The Path Forward: A Multi-pronged Approach

Addressing the challenges posed by deepfakes requires a multi-pronged approach involving:

• Legal Frameworks: Developing specific legislation to criminalize malicious deepfakes and provide remedies for victims.
• Technological Solutions: Investing in research and development of detection technologies to identify deepfakes.
• Media Literacy Education: Educating the public about deepfakes and how to identify them.
• International Cooperation: Collaborating with other countries to develop international standards and enforcement mechanisms.

Conclusion
The legal landscape surrounding deepfakes is still in its nascent stages. As this technology continues to evolve, it is essential to have a robust legal framework in place to mitigate its potential harms while safeguarding fundamental rights. This requires ongoing dialogue between lawmakers, technologists, and the public to navigate the complex ethical and legal implications of synthetic m

End Notes:

1. Yisroel Mirsky & Wenke Lee, The Creation and Detection of Deepfakes: A Survey, ACM Comput. Surv. 54, no. 1, 1 (Jan. 2021), https://doi.org/10.1145/3425780.
2. De Ruiter, A. The Distinct Wrong of Deepfakes. Philos. Technol. 34, 1311–1332 (2021). https://doi.org/10.1007/s13347-021-00459-2.
3. Danielle Citron & Robert Chesney, Deep Fakes, 114 Nw. U. L. Rev. 1353 (2020).
4. Information Technology Act, 2000, No. 21 of 2000, INDIA CODE (2000), § 66D.
5. See id. § 66E.
6. See id. §§ 67, 67A, 67B.
7. Copyright Act, 1957, Act No. 14 of 1957, INDIA CODE (1957).
8. Pranav Mukul, Year of elections: Lessons from India's fight against AI-generated misinformation, The Indian Express (Dec. 12, 2023), https://indianexpress.com/article/technology/tech-news-technology/misinformation-and-harmful-deepfakes-will-affect-future-elections-in-india-adobe-9357027/