On November 7, 2023, the Ministry of Electronics & IT (MeitY) issued an advisory to social media intermediaries to exercise due diligence in identifying deep fake content on their platforms and take down such content within 36 hours of reporting.1
This probably stems from the recent decision of the Delhi High Court for restraining the unauthorized usage of actor Anil Kapoor's image, likes, persona, etc. thereby granting protection to his personality rights, and also addressed the misuse of Artificial Intelligence (AI) technology by extending prohibition towards anyone who uses AI tools like 'deepfakes' to recreate the actor's personality through videos for commercial gain.2 The Delhi High Court had decided on a similar question last year in a suit filed by the actor Amitabh Bachchan3 seeking protection against his personality rights when his persona was being used to deceive the public.
Deepfake-The Technology and its Impact
Among the number of generative AI technologies that have taken the world by storm, one of the foremost is called 'deepfakes'. While we are familiar with the production of manipulated visual content, the AI tool has elevated this process by precisely simulating every aspect of a person's likeness and expressions to the point of undetectable accuracy. The technology relies on a machine learning technique4 which uses publicly available data to replicate the facial expressions precisely and speech synthesis to create manipulated videos. With several technology companies releasing their own deepfake-applications to create such videos, the content creators have increased manifold with some gaining over a million views, and earnings from the viewership/subscriptions. While the innovation is laudable in terms of entertainment, on the other end of the spectrum rests its abuse which is grave.
Personality Rights-Statutory Position in India
Personality rights, grant the right to an individual to decide upon the commercial usage of their name, personality, or voice. Thus, safeguarding individuals from unwanted public disclosure, and ensuring prior consent is obtained for usage. For example, if a video game were to be based on a celebrity, ideally the specific individual would have the right to provide consent to the use his virtual representation for the game.
Though not explicitly addressed in Indian statutes, personality rights find indirect recognition within the Copyright Act and the Trademarks Act. The courts have also been extremely proactive in cases involving well-known actors, quoted above.
Regulation of AI-generated work in other countries
Earlier this year, China rolled out regulations to regulate the content generation service providers and also the end-users who are using the services to produce content. The legislation prescribes that content produced using the AI tool must be watermarked, and the service providers shall undertake measures to prevent the dissemination of false information by taking down the content, informing the relevant authorities, etc.
In Europe, the French National Assembly recently proposed a bill aiming to protect authors of the original content from unauthorized use by AI tools. Interestingly, it also proposes a taxation framework to be imposed upon companies exploiting AI-generated works, where the source of the work is untraceable.
A group of senators in the US proposed a draft bill called the Nurture Originals, Foster Art, and Keep Entertainment Safe Act which provides an individual a 'digital replication right' i.e., the right to authorise the usage of one's likeness in a digital replica.5 Although the bill addresses penal provisions for unauthorized usage of digital replicas it has created certain broad exclusions for purposes of news, sports broadcast, parody, etc.
Way forward under the Indian regime
While AI regulations are absent in India, the present regime which is the Information Technology Act, 2000 (IT Act) tackles issues of dissemination of explicit electronic content, which has been reiterated in the MeitY advisory. It has directed social media intermediaries to regulate deepfake content, identify misinformation, ensure expeditious action in removal of such content once reported. At a time when the government has been questioning the 'safe harbour' provision for the upcoming Digital India Act, the said advisory echoed such thoughts by clearly stating that failure to regulate such content would render the intermediaries to lose its protection under Section 79 of the IT Act. Furthermore, the country's criminal laws combat defamation and disruptive speech, which may potentially assist victims of deepfake content, especially when involving public figures.
Over the past few years, innovation in technology has taken leaps whereas the laws are inching to regulate the same to the extent of questioning some of the archaic laws in force. Moreover, the effectiveness of the mechanisms adopted by different legislations are yet to be witnessed as the laws would primarily kick in after the content is out in the public. While a complete ban on such tools could be proposed, however it maybe be impractical to implement and exposed to challenge under the ambit of freedom of speech and expression. Although the advisory issued by MeiTY could be one of the primary ways to counter the issues along with consumer awareness temporarily, a newer and robust framework, possibly incorporated in the upcoming Digital India Act, could tackle AI generated issues in the future.
2. Anil Kapoor vs Simply Life India & Ors. (CS (COMM) 652/2023)
3. Amitabh Bachchan vs Rajat Nagi & Ors (CS (COMM)819/ 2022)
4. Generative Adversarial Network
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