Deepfakes: A Thin Line Between Satire And Defamation

With the advent of deepfakes created using generative artificial intelligence (AI) tools, discerning the difference between deepfake satire and defamation has become difficult. 

• Now, it’s not just about the content, but also whether viewers can reasonably identify who is speaking.

Recent Cases on Deepfakes Satire and Defamation

Several public figures in India have recently been the subject of deepfakes, some of which were widely circulated on social media. 

• Anil Kapoor vs Simply Life India & Others Case: 
• Case: The Delhi high court examined the use of non-consensual deepfakes of Anil Kapoor.
  • Issue: Misuse of his image, name, voice and persona without his consent.
  • Decision Taken: The court held that Anil Kapoor’s likeness, image, persona, etc, all deserve to be protected under intellectual property law.
  • Observation on Satire: The court observed that the legal protection for free-speech referring to public figures includes satire within its ambit, but does not include speech that jeopardizes the individual’s personality or attributes associated with them.
• Case of Rajat Sharma: 
  • Case: Television journalist Rajat Sharma sought broad orders on deepfakes. Requested access to deepfakes creating software.
  • The Delhi high court will consider this case further in July 2024.
• Others: Celebrities famous for promoting a healthy lifestyle or green causes could have their reputation harmed by deepfakes that depict them discussing a love for junk-food or flying on a private jet. 
  • These situations appear to fall outside the ambit of protected satire, recognized by the Delhi High Court in the Anil Kapoor case.

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About Deepfakes and Satire 

Satire is thousands of years old. Deepfakes are new. Today, they coexist within social media, rife with misinformation, disinformation, and decontextualization.

• Satire: It is a genre of creative expression that draws on comedic devices (hyperbole, irony, etc.) to cast judgment on a person, group of people, a set of norms, or a larger idea. At their best, such works of art aim to reveal larger social truths. 
  • The aim is generally to hold real-life people and events up for critical evaluation.
  • Satire has long been accepted as a legitimate form of free speech, not constituting defamation. 
  • In the case of satirical drawings and depictions in film or text of an individual, a fair-minded viewer or reader is aware that the content in question did not actually originate from the subject of the satire. 
• Deepfakes: These are computer-synthesized audio and/or video that make it seem like people have done or said things that they never did or said.
• • • Deep Fakes are a compilation of artificial images and audio put together with machine-learning algorithms to spread misinformation and replace a real person’s appearance, voice, or both with similar artificial likenesses or voices. 
  • Origin of the Term: The term deep fake originated in 2017 when an anonymous Reddit user called himself “Deepfakes.” 
  • Deepfake Technology: The application of a technology called Generative Adversarial Networks (GAN), which uses two AI algorithms — where one generates the fake content and the other grades its efforts, teaching the system to be better — has helped come up with more accurate deepfakes.
    • A Generative Adversarial Network (GAN) is a deep learning architecture that consists of two neural networks competing against each other in a zero-sum game framework.

About Defamation and its Differences from Deepfakes

Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.

Differences of Defamation from Deepfakes

• Background of Defamation:
  • In India:
    • Ancient Times: It can be found as early as in the Manusmriti. lt emphasized on the harm to reputation due to ill speaking against a person. 
    • During British Rule: Laws such as the Vernacular Press Act, 1878 and the Newspaper (Incitement to Offences) Act, 1908, etc. were enacted in order to curb criticism against the imperial British Government.
  • In World:
    • Ancient Roman Law: Abusive chants were dealt with through capital punishments. 
    • In the Middle Ages: Reputation was protected in England by combined secular and spiritual authorities. Thereafter, the jurisdiction of defamation went to the Judges in Courts.
• Defamation Law: It professes to protect personal character and public institutions from destructive attacks, without sacrificing freedom of thought and the benefit of public discussion.
• Fundamental Rights vis-i-vis Defamation:
  • Violation to Fundamental Rights: It is often argued that defamation laws are a violation of fundamental rights guaranteed under Article 19 of the constitution. 
  • Ruling by the Apex Court: The Supreme Court has ruled that the criminal provisions of defamation are constitutionally valid and are not in conflict with the right to free speech. 
    • The court also held that the freedom of speech and expression is “absolutely sacrosanct” and is not absolute. 
    • The right to life under Article 21 shall also include the right to reputation of a person and cannot be allowed to crucify by other’s right of free speech.
• Categorisation of Defamation Laws in India: In India, defamation is an offence under both the civil and criminal law.
  • Civil Defamation Law in India: Defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant. 
    • A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits a tortious act.
  • Criminal Defamation Law in India: Defamation is a bailable, non-cognizable and compoundable offence. 
  • Constitutional Provisions: Article 19(2) has imposed reasonable exemption to freedom of speech and expression granted under Article 19(1) (a). 
    • Contempt of court, defamation and incitement to an offence are some exceptions.
• Controversies around Defamation:
  • Freedom of Expression: The broad interpretation of defamation laws and the potential for abuse can have a chilling effect on individuals and media organisations, limiting their ability to express opinions or report on matters of public interest.
  • Criminalising Defamation: Critics argue that criminalising defamation is excessive and that civil remedies should be sufficient to address defamation claims.
  • Misuse and Harassment: There have been instances where defamation cases have been filed against journalists, activists, and whistleblowers to silence them or deter them from exposing wrongdoing.

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Arising Questions

The creation and distribution of deepfakes raise various questions which are as follows: 

• On Legal Obligation: As AI and deepfakes in particular go mainstream across online platforms, the question of how these technologies affect citizens’ legal obligations becomes more prominent.
• On Disclaimers: While several jurisdictions, including India, see a legitimate public interest in satire, the obvious signs that usually lead an audience to conclude that the content they’re consuming is satirical are likely to be missing in hyper-realistic deepfakes.
• Interaction on Law: While the Delhi high court’s decision in the Anil Kapoor case does provide a Lakshman Rekha, or red line on what is acceptable, the question of how deepfakes interact with the law of defamation remains open. 
  • Aspects of Defamation under Civil Law: 
    • Publication: The publication of content in any medium
    • Reputation: The content that is thus placed in the public domain is found to lower the reputation of its subject
• On Determination: Recent research suggests even fair-minded people may have difficulty determining whether statements or actions are attributable to the subject of a deepfake.

Way Forward

Balancing innovation with responsibility is crucial to harnessing the benefits of deepfake technology without compromising trust and security.

• Use of Clear Disclaimers: Satirists should issue clear disclaimers that could shield them from the law against damaging people’s reputations. 
  • The use of disclaimers on deepfakes can mitigate the risk that a viewer will be misled into taking the content as genuine.
  • Example: The EU now requires AI-generated content, including deepfakes, to be labelled as such. 
    • Similar measures are included in recent advisories issued by India’s ministry of electronics and information technology.
    • Indian courts have held that even where content does not, from its context, appear to be defamatory, a disclaimer indicating that the content is satire may usefully safeguard the rights of all parties.
• Focus and Follow 3Cs: 3Cs- Consent, Control and Collaboration can be an optimum solution to meet the present day challenges our society is faced with.
  • Consent: No-one should be synthesised without consent. There is a need to implement a digital consent system to streamline the process.
    • Example: Synthesising public figures without consent violates these ethical guidelines no matter the intention of the content.
  • Control: Actors should be in control of their likeness and should have access to a record of all synthetic media content they appear in.
  • Collaboration: A general willingness, within reasonable means, to engage in public discourse and education around synthetic media.
• Clear Warnings: Clear warnings that such satirical content is generated using AI, and that it does not actually seek to depict real events, could help manage viewer expectations and reduce the likelihood of unintended defamation charges and their penal consequences.
  • As deepfakes become increasingly likely to pass for genuine portrayals, content that is meant to parody rather than deceive may still be defamatory. 

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Read More About: Personality Rights in India

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