Digital Doppelgängers - Reinforcing Personality Rights To Fight Deepfakes In India
Author: LawSphereX
Category: Technology, Cyber & Privacy
Published:
Updated:
DIGITAL DOPPELGÄNGERS: REINFORCING
PERSONALITY RIGHTS TO FIGHT DEEPFAKES IN INDIA
Akshat Anand, Symbiosis Law School, Pune
ABSTRACT
Deepfake technology has the potential to bring about significant disruptions regarding to identity, privacy, and respect in any law of the world and more specifically in Indian laws. Using AI to generate near perfection in fake videos, deepfakes are being used for identity theft, revenge porn, and political manipulation which have revealed shortcomings of India’s legal system. The Copyright Act, 1957 and Trade Marks Act, 1999, do not adequately protect the rights of ordinary individuals in their works of creation, focusing only on the commercial value of celebrities. Despite recent judgments addressing personality rights, ordinary citizens are still not adequately protected, highlighting the need for improved protection of individual rights.
This research article examines the issues in Indian intellectual property and privacy law frameworks related to deep fakes and suggests a constitutional reimagining of personality rights under Article 21 of the Indian Constitution, drawing on the comprehensive legal systems of Germany and the United States. The article suggests expanding the scope of personality rights, preventing Deepfakes, and promoting cooperation with authorities, social media platforms, and NGOs. It suggests blending legal reforms with technological safeguards and public awareness initiatives to balance the ethical promise of deepfakes with individuals' identity protection and dignity in the digital age.
Therefore, by prescribing the combination of legal interventions with technological and awareness measures, this article unfolds a way to harmonise the ethical potential of deepfakes with the envelopment of identity and human dignity in the digital era. Keywords: deepfakes, personality rights, identity protection, legal reforms, public awareness
Introduction
As we swiftly advance in the use of Artificial Intelligence in daily life, deepfakes provide a further obstacle in the legislative discourse about AI's ethical issues. Deepfakes are digitally or artificially generated pictures or videos created with a specific kind of AI referred to as Deep Machine Learning. Recent occurrences have resulted in an influx of deepfake videos online, such as the artificially altered video of Rashmika Mandanna, that was placed onto the initial footage of UK based internet personality Zara Patel1. The Indian public's engagement with deepfakes extended beyond mere novelty, as politically significant 'deepfaked' clips featuring actor Amitabh Bachchan posing inquiries about local politics circulated among voters in the state of Madhya Pradesh2.
Ashwini Vaishnaw (Union IT Minister), in addition to guarantees of a draft rule to counter deepfakes, characterized this sort of technological advancement as a ‘danger to democracy,’ since they disrupt the fundamental structure of the community at large3. Such ‘deepfaked’ materials are intended to harm as well as cause psychological damage to people. It is becoming more prevalent in identity theft, revenge pornography, and disseminating false information. Of greater worry is the use artificial intelligence to generate "doppelgangers," in which a threedimensional representation (3D model) of a person is produced, resembling a real-life video, therefore fabricating erroneous memories along with propagating misinformation. Unfortunately, this technology’s prevalent availability has created dangers to cybersecurity because of its participation in ‘revenge porn’4.
The likelihood for abuse is evident, and the person who suffers may be anybody, from a prominent figure to an average individual. Furthermore, it is impractical to impose restrictions prohibiting the use of deepfakes, since the technology has become an invaluable asset in the 1 Anupriya Dhonchak, Rashmika Mandanna deepfake: Are we protecting vulnerable users online? The Indian Express (Jan. 18, 2025, 12: 30 PM), https://indianexpress. com/article/opinion/columns/rashmika-mandannadeepfake-are-we-protecting-vulnerable-users-online-9020607/ 2 Times Now, https://www. timesnownews. com/elections/amitabh-bachchan-couldnt-sleep-all-night-pm-modion-deepfake-menace-times-now-exclusive-article-109888267 (last visited Jan. 18, 2025) 3 The Hindu, https://www. thehindu. com/sci-tech/technology/internet/new-regulation-to-tackle-deepfakessoon/article67565554. ece (last visited Jan. 18, 2025)
4 Kara Kelleher, Revenge Porn and Deep Fake Technology
The Latest Iteration of Online Abuse, Boston University School of Law (Jan. 18, 2025, 1:45 PM), https://sites. bu. edu/dome/2023/08/10/revenge-porn-anddeep-fake-technology-the-latest-iteration-of-online-abuse/ entertainment industry, enhancing visual or special effects and expanding content possibilities5. Therefore, what a person wants is the formation of legislation which not just safeguards people’s privacy, but additionally respects a person's entitlement to preserve their personality. This research study explores the complexities of the intellectual property law against the background of deepfakes and goes on to describe the lacunae inherent in it.
In addition, it also urges for an extended use of the right to personality through borrowing from comparative law as well as identifying a method to construct an impermeable foundation for safeguarding one's reputation, image, personality and identity in its entirety. Understanding Copyright Issues in Deepfakes The IT Ministry's commitment to deliver draft laws regarding deepfakes within a 10-day period during the final week of the month of November 2023 has not been realized6; however, the overarching areas of emphasis, which include the detection of fakes and the enhancement of reporting mechanisms, seem inactive, placing the onus on social media websites. The government's relaxed stance necessitates a return to the base level to examine the fundamental legislation regulating deepfakes in India: "The Indian Copyright Act, 1957" as well as "The Indian Trade Marks Act, 1999".
Although these regulations govern deepfakes, the issue arises from their limited scope in safeguarding the rights of victims. Sections 137 and 148 of the Trademarks Act, 1999 puts limitations on utilizing certain names as well as representations. Section 529 of the Copyright Act, 1957 puts forth a complete list of actions which aren't considered infringement. Furthermore, Section 57(1)(b)10 of the Copyright Act, 1957 offers moral liberties for authors, specifically, their right to integrity, in compliance of which creators of works of literature may seek damages or restrict the modification, distortion or mutilation of their creation in the event it affects their reputation or honour. All these laws simply provide authors with the initial ownership’ rights.
Herein, it is 5 Adine Mitrani, Vejay Lalla and Zach Harned, Artificial Intelligence: deepfakes in the entertainment industry, World Intellectual Property Organization Magazine (Jan. 18, 2025, 1:59 PM), https://www. wipo. int/web/wipomagazine/articles/artificial-intelligence-deepfakes-in-the-entertainment-industry- 42620#:~:text=Leveraging%20deepfakes%20to%20enhance%20a,content)%20for%20the%20underlying%20pe rformance.
6 Id. at 3
7 The Trademarks Act, 1999, § 13, No. 47, Acts of Parliament, 1999 (India)
8 The Trademarks Act, 1999, § 14, No. 47, Acts of Parliament, 1999 (India)
9 The Copyright Act, 1957, § 52, No. 14, Acts of Parliament, 1957 (India)
10 The Copyright Act, 1957, § 57(1)(b), No. 14, Acts of Parliament, 1957 (India)
crucial to grasp that there’s some distinction among well-known personalities and the creators or authors of the copyright. In the case of Camlin Pvt Ltd. v. National Pencil Industries11, an ‘author’ was described as an individual who had “utilized his expertise, skill as well as labour on it”. Typically, producers of movies fall within the purview of authors and consequently, the proprietors of copyright since they've invested their expertise and produced the film. In a similar manner when paparazzi capture illicit images of these prominent individuals then they act as the ‘author’ of the photograph and have ownership of its copyright12. Therefore, celebrities who have been targeted by the use of the deepfake material are not considered the legitimate holders of copyright of the original video which has been altered to make the deepfake content.
Thus, they are unable to claim any kind of relief or remedy for the infringement of copyright can initiate a lawsuit. This stance has progressively transformed through the prevalence of "the initial the proprietor of copyright’ in which the Delhi HC in Titan Industries v. Ramkumar Jewellers (2012)13 stated that a well-known personality or a celebrity possesses the authority or right to control where, when and in what manner their persona as well as their identity is utilized whenever such physical bodily characteristics are utilized without any prior authorization. While such copyright holders along with these famous well-known individuals possess significant legal remedies, the rights of the common people are disregarded.
Ordinary people who fall prey to malevolent information like revenge porn are becoming the most affected stakeholders within the age of social media and digitization14, without the resources of social capital and legal redress mentioned above. Navigating Personality Rights Amid the Rise of Deepfakes To a considerable degree, current statutory framework allows for the creation of copyright upon an individual's characteristics via the means of agreement, consent and intellectual property. Nevertheless, the issue remains unresolved in circumstances when there does not exist obvious infringement of copyright. This emphasizes the importance of developing the right to
11 Camlin Pvt. Ltd. V. National Pencil Industries, AIR 1986 Delhi 444
12 IPTSE, https://iptse.com/who-owns-copyright-in-photographs-rights-of-paparazzi-vis-a-vis-rights-ofcelebrities/ (last visited Jan. 18, 2025)
13 Titan Industries v. Ramkumar Jewellers, 2012 (50) PTC 486 Del
14 Khurana & Khurana, https://www. khuranaandkhurana. com/2024/10/23/are-personality-rights-only-forcelebrities/ (last visited Jan. 18, 2025 individuality15. This part of the article expands on the evolving notion of the right to personality within India by comparing it to legislation in other countries. Furthermore, this part seeks to assist ordinary individuals by recognizing the significance of their right to individuality and pushing for a framework that broadens the boundaries of the conventional understanding of this right. The Journey of Personality Rights in Indian Law The concept of personality rights, which basically includes an individual's name, signatures, voice, as well as other characteristics that helps identify them, has been extensively examined in relation to constitutionalism's views on human dignity, respect, confidentiality and privacy16.
It encompasses all other essential characteristics that make individuals apart. Renowned people, especially celebrities, cherish this privilege since their personalities could potentially be used for profit. In general, the evolution of the Right to Personality in the Indian context may be divided into two parts: the fundamental right to privacy as well as the ability to choose over the commercial usage, which is more often known as the "right to publicity”17. Considering deepfakes use altered voices and visuals, one's privacy as well as personality rights are automatically violated. Excessive use of personality attributes in deepfakes might do irreversible harm to a person's reputation or goodwill. In India alongside other legal systems throughout the globe, the right to personality is still a relatively new idea.
Since a person's right to personality isn't expressly mentioned in Indian legal framework, it has evolved via rulings by the courts18. In Anil Kapoor v. Simply Life India & Ors. (2023)19, the Delhi HC acknowledged the constitutional right of an individual to have their own personality and worked to prevent Anil Kapoor's features from being utilized by artificial intelligence (AI) to produce caller tunes, 15 Hafiz Gaffar and Saleh Albarashdi, Copyright Protection for AI-Generated Works: Exploring Originality and Ownership in a Digital Landscape, Asian Journal of International Law. 2, 1-24 (2024). 16 Luis Anibal Aviles, Human Dignity, Privacy and Personality Rights in the Constitutional Jurisprudence of Germany, the United States and the Commonwealth of Puerto Rico, 67 University of Puerto Rico Law Review.
343 (1998)
17 Agnes Augustian, Protection Of Personality Rights In India
Issues And Challenges, 1 IPR Journal of MNLU, Nagpur. 46, 44-53 (2023) 18 Nashyam Sadiya, Protecting Personality Rights In India, Khurana and Khurana (Jan. 18, 2025, 6:29 PM), https://www.mondaq.com/india/privacy-protection/1475772/protecting-personality-rights-in-india
19 Anil Kapoor v. Simply Life India & Ors., CS(COMM) 652/2023
animated images, emojis, ringtones, GIFs and other types of modified material. This ruling was unique and established a standard for protecting personality rights in the contemporary digital age. Here, the use of the prominent Actor Anil Kapoor's traits of personality was prohibited for
16 companies including the general public20.
The well-known actor Amitabh Bachchan had earlier been given an interim injunction prohibiting the excessive use of his identity, voice, and picture for business and promotional purposes in the case of Amitabh Bachchan v. Rajat Nagi & Ors. (2022)21. Public personalities' right to personality has been effectively implemented by both of the aforementioned rulings, granting them discretion over how to use their personal characteristics. According to the law, the right to personality is protected by Article 2122 of the Constitution of India, which also covers the rights to publicity as well as privacy. Preventing the usage of a person's identity and private traits without consent or fee is part of the right to publicity. An individuals' "informational privacy" was emphasized in KS Puttaswamy v. Union of India23.
A person's choice in sharing their private data and information is known as informational privacy, however it may be a violation of their right to privacy if that information is shared unnecessarily without their consent. Under the wider objective of safeguarding an individual's rights, the growth of the right to personality isn't just confined to an intellectual property problem; rather, it is a constitutional junction of rights like privacy, life and human dignity under the wider ambit of Article 21. Unfolding New Dimensions of the Right to Personality in India There are two primary causes why the Indian legislations' "Right to Personality" is insufficient and inadequate. Firstly, it has evolved within the framework of celebrities and prominent personalities.
Individuals are not automatically categorized into categories under the Indian Copyright Act of 1957, which refers to some as "public figures" while others are designated as "not”24. However, as discussed earlier, the courts have consistently incorporated this difference within the statute in a number of rulings. Secondly and perhaps more significantly, 20 Malavika Prasad, Delhi HC protects Anil Kapoor’s personality rights: What they are, how have courts ruled, The Indian Express (Jan. 18, 2025, 6:50 PM), https://indianexpress. com/article/explained/explained-law/delhihc-anil-kapoor-personality-rights-8951569/
21 Amitabh Bachchan v. Rajat Nagi & Ors., 2022 SCC OnLine Del 4110
22 Constitution of India, art. 21.
23 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
24 Lucy Rana and Shilpi Sharan, Protection of Personality and Image Rights in India, S. S Rana & Co. (Jan. 18, 2025, 7:37 PM), https://ssrana. in/articles/protection-personality-image-rights-india/ it is based on an intersecting interpretation of the right to publicity along with the right to privacy under Article 2125 of the Indian Constitution as presented in the case of KS Puttaswamy26. Since there is no clear foundation upon which it may be built, this limits the potential for enhancing legislative provisions in the preservation of the right to personality. In the countries of Germany and the United States, there is a clearer constitutional as well as jurisprudential foundation. The universal right of personality was officially acknowledged as a "basic right" in Germany27.
According to the Marlene Dietrich Case (1954)28, it's acknowledged as an "other right" according to Section 823(1) of the Civil Code of Germany29, and is guaranteed by the constitution under Articles 130 and 231 of the Basic Law of Germany. Furthermore, in the US, an inherent 'right of publicity' was established in the case of Haelan Labs Inc. v. Topps Chewing Gum Inc32. , which states that an individual has an inherent exclusive authority to control the publishing and use of his image. The initial progression towards the notion that an individual might possess an innate right to regulate how their personality or identity is used is the wider understanding of this ratio. Given the aforementioned scenarios, it is recommended that the right to personality be developed in Indian law to the point where it is recognized as an enlarged constitutional right.
It is subject to restrictions only by virtue of being derived from Article 21. The authorities and the government are now considering using a legislative as well as regulatory framework to combat deepfake technology, although this approach has not advanced very far. The shortcomings in digital legislation and the evolving notion of privacy make this worse. Numerous basic rights are outlined in the Indian Constitution, including the right to life (Article 21)33, the right to freedom of speech and expression (Article 19)34, and the more general category known as the Equality Code. not one thing in this list of positive rights
25 Id at 22.
26 Id at 23.
27 Zeller Seyfert Law Attorneys, https://zellerseyfert.com/en/expertise/personality-rights/general-right-ofpersonality-protection-against-defamation/? (last visited Jan. 18, 2025)
28 Bundesgerichtshof (BGH), Case I ZR 49/97, Marlene Dietrich Case (1999)
29 GER. CIV. CODE § 823(1)
30 BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY art. 1
31 BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY art. 2
32 Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953)
33 Id at 22
34 Constitution of India, art. 19.
safeguards people's intrinsic identity or individuality when it comes to their own selfdetermination, that is emphasized by the unique physical characteristics and qualities that each individual possesses. Therefore, it is suggested that in order to fully control the malicious utilization of deepfake technology as well as other harmful content which have the potential to compromise identity rights, a rigorous legal and constitutional interpretation of the right to personality which is consistent with elements like the right to privacy as well as publicity is required. It is important to extend the right to personality beyond commercial use to include non-commercial uses such as revenge porn or other malicious actions. The general public must benefit from this privilege, going beyond the narrow definition that just includes famous people.
Important Legal Cases on Deepfakes and Personality Rights
1. Rajat Sharma and Anr. vs Tamara Doc and Ors. (2024)35
The Delhi High Court decided in favour of journalist Rajat Sharma, ordering the removal of artificial intelligence-generated material that improperly utilized his voice and image. The court's proactive attitude towards protecting personality rights in the backdrop of evolving technology is shown by the fact that it prevented many defendants from using their personal traits without authorization.
2. Arijit Singh vs. Codible Ventures LLP (2024)36
In light of the unlawful commercial utilization of Arijit Singh's voice and images by AI platforms, the Bombay High Court protected his personality rights, which is a significant step in the recognition and protection of personality rights in the digital age.
3. Hepp v. Facebook (U.S.)37
The US court supported an individual's personality rights against the unapproved use of social media platforms and websites in this case, which concerned the interpretation of Section 230 of the Communications Decency Act. In the context of deepfakes, this case sets a precedent for striking a compromise between the rights to free speech and personality.
35 Rajat Sharma and Anr. vs Tamara Doc and Ors., 2024 LiveLaw (Del) 1365
36 Arijit Singh vs. Codible Ventures LLP, 2024 SCC OnLine Bom 2445
37 Hepp v. Facebook, 14 F.4th 204 (3d Cir. 2021)
4. Amitabh Bachchan vs Rajat Nagi and Ors (2022)38
In this case, renowned actor Amitabh Bachchan's personality rights were violated due to the commercial exploitation of his personality characteristics. The court ordered an ad-interim exparte injunction in favor of Mr. Bachchan, strengthening protections against abuse of Artificial Intelligence technologies such as deepfake technology.
5. Anil Kapoor v. Simply Life India and Ors. (2023)39
The Delhi HC recognized Anil Kapoor's personality rights against the illegal and unauthorized use of his likeness in material such as videos created using Artificial Intelligence technology. This decision barred different companies from exploiting his personality features without proper authority or content. Recommendations for Strengthening Personality Rights Against Deepfakes in India In order to deal effectively with the problems created by the deepfake technology and preserve personality rights, it is necessary to introduce an appropriate legislative regime enshrining personality rights into an independent statutory right. All people, including celebrities and public figures, should be protected by this legislation from commercial and non-commercial violations that include revenge porn, misinformation and identity theft.
This is of course a way of elaborating a legal framework that would offer indeed stronger protection to personal identity and dignity in the context of communication technology. Deepfake technologies need to be regulated under Information Technology Act, covering regulations only for the creation and usage of such technologies. Mandatory transparency in algorithms, ethical usage standards and liability of developers whose technologies are used in an unethical way should be among these regulations. Accurate remedies must be made available, so that an ordinary person who is the victim of personality rights violations is adequately compensated in his or her case of personality rights violation. By setting up fast track tribunals and online grievance portals people would be able to get swift redressal if they were affected by malicious deepfakes.
At the same time, public awareness campaigns should be launched to educate the public through a proactive
38 Amitabh Bachchan v. Rajat Nagi & Ors., 2022 SCC OnLine Del 4110
39 Anil Kapoor v. Simply Life India & Ors., CS(COMM) 652/2023
collaboration between the government, NGOs, civil societies etc. , about what the ethical importance of deepfakes is, what misuse would that mean, and what legal recourse is available. Finally, collaboration with the technology platforms is a must. On social media and hosting services it should be mandated to have the tools to detect, if the personal characteristic was used without consent, and to proactively monitor deepfake content and remove it. These recommendations merge legislative, technological and social measures to create a sound framework for preventing the employing of the deepfake technology through the manifestation of individual dignity and identity. Conclusion In the changing technological world today, deepfake technology is one of the profound threats faced by the community and persons in the modern society mostly in the areas of identity, privacy and dignity.
Pervasive misuse of this technology has brought out several weaknesses in Indian legal regime especially with regards to personality rights. Recent legal reforms show that the court pays sufficient attention to celebrity rights and active measures to protect their privacy; however, individuals do not receive the same level of protection which they deserve. The need is for personality rights to be integrated as an independent statutory provision within Indian law. And this must be broad enough to apply to commercial and non-commercial violations, to provide equal remedies to all victims. The ethical usage and responsibility of deepfake technologies under the Information Technology Act requires the creation of another minimum regulation. In addition, promoting fast track grievance mechanisms for victims, and public awareness, are crucial means of course of reducing harm.
Intensive multisectoral involvement of all stakeholders, including governmental organisations, non-governmental organisations, and technological companies that offer social-networking platforms, is critical in establishing an effective programme to stop deepfakes. Social Networking platforms should also be ensured to take responsibility accordingly of controlling cases of unauthorised use of personal characteristics. Only, the approach of legislation, technological security, and community awareness of the issue will help India to address the challenges that deepfake technology creates comprehensively and protect the individual’s identity and dignity in the context of digitalization.
Hence it is proposed that the domain of personality right should be extended to cover ordinary persons and the freedom from its restricted commercial application. There will always be the risk of allowing the harms of deepfakes but protecting the benefits of deepfakes at the same time is the only approach to identifying a constitutional protection of not only the preservation of one’s self but also one’s concept of identity in terms of basic aspects such as physical traits that defines individuals in their identity.