Abstract
Deepfakes and manipulated videos are the biggest threat to the legal system, and that is a problem given the high bar of evidence that is expected in a court of law. This paper examines this very issue and goes further in dissecting the experiences of legal processes because of the same. This paper not only evaluates the current “right to be forgotten” legislation in preventing the proliferation of deepfakes but also identifies the possible solutions and improvements that can help the justice system to grow. Through exploring the problems of the existing legal regulation, this paper is going to make a more realistic suggestion on how the right to be forgotten can be enhanced in the digital age to stand against the malicious use of deepfakes.
Keywords: Deepfakes, deep fake technology, legal implications, artificial intelligence (AI), privacy, defamation.
Introduction
Deepfakes can be generally identified as artificial images, and more specifically identified as videos where a human being in the original image or video footage is replaced by a different person. This can be termed as a more complex approach to media faking and involves the use of deep machine learning in the formulation of the fake news which can even result into other crimes such as defamation, further increasing the risk factor of these deepfakes. The term “deepfake” is a merged word of “deep learning” and “fake” which helps us understand the nature of the term.
The technology and the machine learning used in deep fakes have advanced considerably in recent times and this makes it challenging to differentiate between the real and fake videos. This advancement in AI (Artificial Intelligence) and technology has raised concerns about the possibility of deepfake technology being used for numerous negative intentions such as political manipulation, slander, identity theft, and extortion. With the improvement in the technology used in the creation of deepfakes, there is the corresponding requirement for the development of means to counter them.
AI development has introduced the world to a new age of trickery, best illustrated by deepfakes. These hyper-realistic synthetic media can convincingly forge audio, video, and images, which present legal systems with new and unprecedented problems. This paper explores the challenges of deepfakes in the courtroom with regards to two major aspects: admissibility and jury deception. Based on the analysis of the legal environment, technological development, and possible countermeasures, this study will help to advance the understanding of this relatively new threat to the justice system.
Deepfakes could change the concept of evidence presented in the court of law in the future. They can be employed to produce fakes of a person speaking or acting in a way they never did. This could be very disastrous to the justice system as it could create doubt as to what is real and what is not, giving rise to risk of evidence tempering and manipulation.
There are many technical and legal issues that need to be addressed to deal with the many challenges of deepfakes in the courtroom. Some of these questions that are explored in this article are as follows:
- How to determine the admissibility of deepfake evidence?
- How to prevent a member of a jury from being deceived by deep fakes?
This paper aims at giving a brief analysis of the legal and technological aspects of deepfakes in the courtroom. It also outlines a number of possible tactics that may be employed to combat this relatively new threat to the justice system.
Research methodology
This research paper is purely grounded on secondary sources. This is done to comprehend the idea of deepfake and assay Deepfakes in the Courtroom and its Challenges of Admissibility and Jury Deception. The research makes use of secondary sources of data, including journals, journals, websites, case laws, papers, and so forth.
Review of Literature
Mika Westerlund’s paper, “The Emergence of Deepfake Technology: A Review,” provides a comprehensive overview of the rapidly evolving field of deepfakes. It talks about technical groundworks of this technology, exploring how this artifical intelligence is connected with deep machine learnig , is engaged to create hyper-realistic synthetic media
I found this paper to be very informative and well-written. It provides a clear and concise explanation of the underlying technology, as well as a discussion of the potential implications for society. I would recommend this paper to anyone who is interested in learning more about deepfakes.
The SCC Online blog highlights India’s lack of specific legislation to combat deepfakes. Instead, they are relying on existing laws like the Information Technology Act. The blog outlines various crimes that deepfakes enable, including identity theft, defamation, and non-consensual pornography. They emphasize the challenges faced by law enforcement in detecting and prosecuting deepfake-related offenses. They also underscore the urgent need for updated legislation to address this evolving threat.
Onfido’s online blog – “Deepfakes need regulating — but why now?”
The rapid advancements in deepfake technology have raised serious concerns for identity verification. Deepfakes can manipulate reality with such astonishing realism that it can be difficult to distinguish them from real life. This poses a significant threat to the integrity of legal proceedings, as it can be used to create false evidence or impersonate individuals.
To address this growing threat, there is an urgent need for clear and effective regulations that can combat deepfakes. These regulations should focus on preventing the creation and distribution of malicious deepfakes, while also protecting freedom of expression.
This blog talks about the recent call for new laws to criminalize the creation of deepfake images response to AI-generated explicit images of Taylor Swift circulating online. I agree that legislation is lagging behind when it comes to protecting against harmful activities, and it’s time lawmakers caught up.
Detection of Deepfakes
Diving into deepfake detection, can be very fascinating. It’s a rapidly developing field that’s crucial for fighting misinformation and protecting people’s identities.
Deepfake detection uses a variety of methods, including:
- Visual analysis:
This is used for things like unnatural blinking, bad lighting, and weird skin textures.
- Machine learning:
This uses deep learning models that have been trained to spot patterns that indicate a deepfake.
- Audio analysis:
This listens for things like voice inconsistencies and lip-sync issues.
Deep learning-based detection:
Deep neural networks are among the deep learning algorithms that can be employed to detect deepfakes through training of the algorithms on a set of real and fake images, videos, or audios. The algorithm learns the patterns and artifacts that are associated with fake content for example, the movements of the face, blinking of the eyes, and the audio and the video do not match. after training the deep learning algorithm, the latter can be applied to the identification of deepfakes by analyzing new, previously unseen media. If the algorithm is able to determine that certain media is fake, then the media can be marked for review or marked for further analysis.
Metadata analysis:
This term can be explained as looking at the characteristics of the file to determine the authenticity of the video and whether it has been altered.
Another challenge that deepfake detection has is that the use of deepfake technology is growing at a fast pace. In fact, it is almost impossible to tell that the content is fake by using the naked eye since the deepfake technology is almost perfect. However, the researchers are attempting to find out better detection methods and experts are optimistic of its success. It is very important to actively tackle this as with deep fakes, any person or entity has the power to post fake news causing damage to the victim. The growth in the advancement of deepfake detection in such a short time is quite remarkable to have seen.
Deepfakes Impact on Law
Deepfakes present a new challenge to the legal system as they have become a part of the world. This technology’s ability to generate near-realistic fake news and images presents numerous legal issues to the concepts of evidence, defamation, and privacy.
Consequently, the following are the significant effects of deepfakes on law:
- Evidence Admissibility:
Deepfake distorts the concept of truth and credibility of digital evidence. Judicial systems are struggling to decide whether and when manipulated media can be admitted and how sound standards for verifying such evidence can be established, this is crucial for setting the high standard of proof required in law, given the high stakes of the situation
- Defamation and Reputation:
The production and sharing of deepfake videos can result in significant adverse effects on one’s reputation. Current laws on defamation may not be sufficient in dealing with the rate and consequences of deepfake-based defamation.
- Privacy Violations:
It is possible to use deepfakes to produce pornography without the subject’s consent, which is a violation of the subject’s rights to privacy. This has led to new legal questions on how to tackle these crimes.
- Intellectual Property Rights:
The creation of a deepfake using someone’s image also poses a threat to their rights of publicity and personality since it is done without their consent.
- Election Interference:
Deepfakes can be used to spread fake news and influence voters during elections which can compromise the democratic system.
- Contractual Disputes:
Deepfakes can be employed in fake contracts or agreements, and this will lead to very many legal issues.
To meet these challenges, legal systems all over the world are rapidly developing. To address the problems caused by deepfakes, new laws, regulations, and technological countermeasures are being created. However, the rate at which technology is being developed has remained high compared to the rate at which the law and regulations are being developed, thus posing a continuous challenge to the legal fraternity.
Possible Consequence of Deepfakes for Trail Practice
Deepfakes are a major disruption for legal systems all over the world and it is extremely difficult to stop them. This technology has the capability of producing synthetic media that could be almost real and this brings new questions to courts and lawyers. Here are some of the main ways deepfakes affect the law
Evidence Admissibility:
Judges are now faced with the problem of proving the admissibility of digital evidence because even in the case of deepfakes, it can be hard to distinguish between the original and the fake. For instance, it is possible to deploy a deepfake video to give the perception that a person was involved in a criminal act.
Defamation and Reputation:
The threats of deepfake videos are that they can lead to significant reputational losses and current legislation in the field of defamation does not seem capable of containing the growth of this type of content. For instance, one could create a deepfake video to depict a politician as saying something they never said, which would harm their reputation and influence the results of an election.
Privacy Violations:
Deepfakes can be utilized to produce revenge pornography, which is the invasion of people’s privacy and is unlawful. For instance, a person’s face could be cloned onto a pornographic film, which they would find very disturbing and a violation of their privacy rights.
Intellectual Property Rights:
The unauthorized use of someone’s image in a deepfake might violate their legal rights like rights of publicity and personality rights. For instance, a deepfake video can be created with the intention of advertising a certain product or a service with the image of a certain person without their consent.
Election Interference:
Deepfakes can be used to spread fake news and influence the voters’ decision during elections, thus harming the democratic system. For instance, a fake video can be produced in such a way that a candidate is seen saying something that he or she did not say or involved in some form of vice.
Contractual Disputes:
Deepfakes can be used to forge contracts or agreements, which would make legal issues very complicated. For instance, a deepfake video may be created to give an impression that the person concerned agreed to something he/she never did.
To these challenges, legal systems in the global society are steadily adapting. New laws, regulations and technological countermeasures are being created as attempts to reduce the effects of deepfakes are being made. However, the rate at which technologies are being developed is increasing hence it becomes a continuous struggle for the legal profession.
Laws regarding Deepfakes
Deepfakes are trending right now, and for a good reason. With this technology, it is possible to produce very convincing fake videos which are almost as good as the original. This can lead to all sorts of issues, including dissemination of fake news, damaging someone’s reputation.
Unfortunately, the law has not been able to adapt to the current advancement in deepfake technology. Therefore, most countries are using the existing laws to address the deepfake related problems. These laws include privacy laws, libel laws, and laws dealing with the protection of ownership rights on ideas and creations. But they are not always sufficient to really combat the specific threats that deepfakes pose.
One problem is that it is challenging to prove that a certain video is a deepfake. One of the issues is that deepfakes can be employed to produce revenge pornography or other non-consensual materials. Deepfakes can also be used to manipulate elections or any other political activity.
However, there are some nations that are gradually beginning to come up with more refined deepfake laws. For instance, some countries are already thinking about the legalization of creating or distributing deepfakes in certain conditions. But it is still at an experimental stage and people have not come up with the best strategy for it. While even more maturated legal systems have not found a proper way to combat this issue, It is crucial here for India to take lead and formalize laws regarding same.
The increasing incidences of deepfake technology have brought into question the need for higher legal measures especially in issues to do with privacy, data protection and cybercrime. Although, India has few laws that can be used to fight deepfake technology but there is a dire need of specific laws to counter deepfakes. Another problem is the absence of legal regulation of deepfake technology and the actions that can be qualified as deepfake-related crimes. This can make it hard to apprehend people or entities that use deepfakes to perpetrate or carry out other unlawful activities.
The Indian legal system has recently been enriched with new rules that can counter deepfake technology. Section 66 E of the information technology (IT) Act of 2000 now includes offenses such as creating, recording, sharing or disseminating an individual’s deepfake without their permission. This offense is punishable with imprisonment which may extend to three years or with fine which may extend to ₹2 lakh. Another provision which has some relevance is Section 66 D (5) of the IT Act,
Information Technology Act [No. 21, Acts of Parliament,2000 (India)], Section 66D permits the charging of those who utilize computers or control the communication tools to act as imposters.
The Ministry of Information and Broadcasting of India also came up with an advisory that was released to media houses in India on 9th January, 2023. The advisory encourages people to be very careful when sharing such content and advises that any such content should be tagged as ‘manipulated’ or ‘modified’.
The following changes to the Indian legal system are required to deal with the danger of deepfake technology: Deepfake technology is a technique used to develop fake videos that look like the real thing of people speaking or acting in ways they never did. This can lead to some negative effects for example, people’s character assassination, emotional trauma, or even manipulation of the elections.
The new laws and guidelines will assist in preventing the negative impacts of deepfake technology on the society. They will also facilitate the enhancement of laws regarding the perpetrators of deepfakes creators and distributors
To what extent should deepfake legislation be taken?
First of all, it is necessary to note that a large number of existing rules are directed only at political deception or sexually explicit deepfakes. Deepfakes are also assisting criminals in opening bank accounts, altering or threatening people, and causing distress in general. The criminals and fraudsters will always look for the weak areas and the new ways of exploiting the existing technology. Deepfake legislation has to plug those gaps where it is able to.
However, this is not without some problems. First of all, the most egregious offenders are the hardest to apprehend; They work undercover, exchange data on the internet that is borderless and anonymous, and are always evolving.
Police officers have also noted that the industry still lacks the ability to identify deepfakes, which complicates the monitoring and subsequent legal action against any misuse of the technology when the law is violated. This means that deepfake detection technology will be very important in the implementation of the legislation.
SUGGESTIONS
In the present world of deepfakes, India lacks the legal provisions to counter the threats that are associated with this technology. The use of deepfakes can effectively alter reality to a terrifying extent, which is a problem for the admissibility of evidence and the reliability of legal cases. To address this challenge, there is a need to enhance the Indian privacy laws to provide for consent and severe penalties where a person’s likeness has been used without permission. There should also be specific rules that apply to deepfake creators, distributors, as well as those who intend to use them for immoral purposes. Such regulations should comprise reporting requirements, obligations of the platform, and content identification requirements.
Furthermore, cybersecurity laws have to be strengthened in general, and more specifically, against the misinformation. Other measures include; Encryption should be used. Another important area is the extension of the legislation on intellectual property rights to the violations connected with deepfakes and the determination of responsibility for dangerous deepfake materials.
However, cybersecurity laws have to be strengthened, especially against the background of disinformation attacks. Measures like encryption should be employed. It is also necessary to extend the existing legislation on intellectual property rights to include violations connected with deepfakes and determine legal responsibility for the dissemination of dangerous deepfakes. It is crucial to work on an international level, consider the advancements in technology, raise awareness among the population, and estimate the effects on the economy in order to create a strong legal basis for the protection from the dangers of deepfake technology.
CONCLUSION
In an era of rapid technological advancement, we must address a growing threat that has the potential to undermine the integrity of our legal system: this is known as deepfake technology. Deepfakes pose a considerable threat to the practice of trials for several reasons, mainly because they can alter any evidence that may be available in a digital format in a way that is almost impossible to distinguish from the real thing. This begs questions on matters of admissibility of evidence, defamation, and privacy.
To overcome these difficulties, the development of a complete legal framework is imperative. Legal frameworks do exist to some extent to protect people from deepfake videos, but these laws are generally ineffective against the constantly developing technology. This means that there is need to engage legal minds, technologists and the public in order to come up with sound policies that will protect individual rights while at the same time promoting innovation.
More studies are needed to understand the moral issues concerning deepfake detection and prevention tools and the effects of deepfakes on new and developing fields like AI and VR. If these issues are not addressed in advance, there is a risk of the legal system’s corruption due to this new threat.
ROHIT SHILIMKAR AND ARYAN SHAH
DES NAVALMAL FIRODIA LAW COLLEGE