Personality Rights and AI Deepfakes: Emerging Legal Challenges in the Digital Age

Personality Rights and AI Deepfakes: Emerging Legal Challenges in the Digital Age

 By Nikita Nijjar

Editor- Kanishk Kr Singh & Adv. Komal

Abstract

The evolution of artificial intelligence has led to the way digital content is produced and spread in society. One such development is the introduction of deepfake technology that produces convincing synthetic audio, video, or images resembling that person’s appearance, voice, facial expressions, and gestures. While deepfakes have various positive uses including entertainment, learning, and technological progress, their abuse threatens personality rights, privacy, dignity, and reputation of the person. There being no comprehensive law dealing with personality rights in India, courts have been assuming the responsibility of redressing harms in these matters. This paper will study the connection between personality rights and AI-created deepfakes, discuss the adequacy of current Indian legal framework in this regard, review recent case laws on the matter, and provide comparative insights from abroad. It is argued that due to its fragmented nature, the Indian legal system is not competent enough to tackle issues relating to synthetic media and a new legislation should be created in order to protect personalities from any digital infringement and exploitation.

Introduction

AI technology has emerged as one of the key technological trends of the twenty-first century. Thanks to advanced machine learning techniques, artificial intelligence systems can now create realistic images, videos, and sound clips which cannot be easily differentiated from real-world human-generated content. Such synthetic media content is usually referred to as “deepfakes” and can create an almost perfect simulation of someone’s face, voice, mannerisms, and behavior. While there is considerable commercial and artistic potential in using such technology, it poses serious ethical and legal challenges due to its abuse.

The rising availability of deepfake technology creates a novel way to manipulate an individual’s identity. People can now be shown doing things they have never done, promoting products they have never promoted, and voicing opinions which were never theirs. Such abuse does not only result in damaging someone’s reputation but also compromises their personal autonomy by making it impossible for people to control how their identity can be used on the Internet. This becomes even more dangerous when deepfake technology is being used for misinformation, fraud, blackmailing, or other malicious purposes.

India has seen a growing concern with deepfakes after a series of cases which involved public figures and celebrities. These instances have compelled the judiciary to consider whether the existing legal doctrines are enough to safeguard the personality of an individual at a time when even his/her image, voice, and identity can be reproduced with great accuracy by virtue of artificial intelligence. In this essay, the implications of deepfakes will be discussed from the perspective of personality rights.

Personality Rights and the Threat of Deepfakes

Personality rights can be defined as the right to control any form of commercial or non-commercial utilization of aspects that relate to an individual’s personality such as his name, image, likeness, voice, signature, etc. Though Indian law does not explicitly provide for personality rights, the doctrine is slowly evolving through the application of constitutional law, intellectual property law, and privacy law.

The importance of personality rights is in the realization of the fact that the identity of an individual has an economic as well as dignity value. Celebrities earn a lot of money through the image that they create and ordinary citizens have a stake in the protection of their identity. The deep fake technology poses a serious threat to these interests.

While traditional impersonations can easily be exposed as being fake or inauthentic, deepfakes created by AI make the process of exposing them a challenge. Modern technologies of voice cloning allow generating realistic voices based on just a few seconds of recorded audio, and image generators can recreate images with stunning fidelity. Therefore, deepfakes have extended the list of damages caused by the violation of someone’s identity beyond typical legal classifications. Such damage includes reputation harm, emotional stress, financial losses, invasion of privacy, and depreciation of one’s economic value.

A special problem of deepfakes is that they do not imply the reproduction of existing material. Rather, deepfakes create new synthetic material based on some learned characteristics of an individual’s identity. This makes traditional intellectual property laws insufficient since they are focused on protecting original works, not identities. Hence, personality rights play a key role in resolving issues related to AI-generated identity exploitation.

Existing Legal Framework in India

At present, there is no specific law on personality rights or deepfake technology in India. Legal protection, however, comes from a collection of constitutional rights, statutory protections, and judicial principles. Although these sources offer some form of legal protection, they appear to be scattered and insufficient in coping with the challenges posed by artificial intelligence technology.

The constitutional basis for personality rights is Article 21 of the Constitution that recognizes the right to life and personal liberty. Through progressive interpretations, Article 21 includes privacy, dignity, autonomy, and informational self-determination. In its ruling in Justice K.S. Puttaswamy v. Union of India, the Supreme Court affirmed privacy as a basic constitutional right and highlighted the significance of an individual’s control over his/her personal information. Deepfakes pose a clear threat to these constitutional concerns.

Some of the measures that could be taken include provisions under the Information Technology Act, 2000. This act provides specific provisions against crimes that involve identity through the use of electronic means of communication. For instance, Section 66C and 66D provide protection against identity theft and personating for cheating by using electronic communication whereas Section 67 and 67A provides remedies against publication and transmission of obscene and pornographic matter. While these provisions might help in dealing with some malicious deepfakes, it is worth noting that they are quite old compared to the development of generative AI.

Defamation laws form yet another area that could help deal with such malpractices. Deepfakes, which result in damaging the reputation of individuals, might warrant legal action through civil defamation or criminal defamation under the Bharatiya Nyaya Sanhita.

Copyright is insufficient in cases of unauthorized usage of photos, recordings, or performances. However, copyright covers the work and not the personality behind the image in question. Thus, AI-created deepfakes usually do not qualify for copyright protection as their content is created anew and is not a copy of an existing creation.

Under the Digital Personal Data Protection Act, 2023, there are measures that require consent of the individual regarding the processing of their personal data. Hence, the act can offer indirect measures to protect from unauthorized use of personal data during the deepfake creation process. Nonetheless, there are no laws concerning the replication and personality rights exploitation through AI.

Judicial Response to AI-Driven Identity Exploitation

The development of personality rights jurisprudence in India has been driven by judicial activism in the absence of statutory provisions. Judicial activism has resulted in recognition of the fact that a person’s identity is a legal interest which needs to be protected from unauthorized commercialization and exploitation.

One of the first judicial deliberations on the issue of publicity rights was in the case of ICC Development (International) Ltd. v. Arvee Enterprises where the Delhi High Court held that a person has rights over the commercial value derived from his personality. This was an early case on personality rights and did not deal with any AI-generated material.

Thereafter, in the case of Shivaji Rao Gaikwad v. Varsha Productions, the Madras High Court held that celebrity identity can be protected from unauthorized exploitation and restrained any exploitation of the persona of actor Rajinikanth.

There have been instances of courts intervening in cases of harm caused due to the usage of AI. In the case of Amitabh Bachchan, the Delhi High Court provided protection from the misuse of the actor’s name, image, voice, and other personal attributes. In addition, the court realized that the advances made in technology had the capacity to be used as a means of harassment.

The judgment delivered in the case of Anil Kapoor brought about a change in the jurisprudence related to personality rights. The Delhi High Court has given protection to the name and image of Anil Kapoor, as well as his voice and other signatures which could be generated by using AI.

In another instance, the case of singer Arijit Singh came before the Bombay High Court. The court acknowledged the fact that the voice of a person was unique and that its cloning by the use of AI would amount to an infringement of the personality rights of the concerned individual.

Such judicial trends illustrate that there is a growing consensus about the need for personality rights to be amended in view of the new reality of the digital age. However, the strategy of addressing such issues via litigation may prove to be insufficient due to lack of resources of those people who need to pursue the lawsuit.

Comparative Perspectives and Critical Analysis

There are some other countries which have developed more sophisticated mechanisms aimed at preventing identity theft and exploitation of synthetic media. For example, the right of publicity in the United States is protected in many states and enables individuals to control commercial use of their name, appearance, and voice.

Another regulatory approach has been adopted by the European Union. The EU AI Act imposes some requirements for AI-generated content and seeks to achieve more transparency when using synthetic media. The EU AI Act does not include personality rights as such but represents a broader attempt to mitigate the societal risks associated with advanced AI systems.

Among others, China has some of the strictest laws regulating deepfakes. The laws require clear labeling of any generated synthetic media, and also require that providers get the consent of the individual prior to generating or distributing any deepfake images of the person. This is an example of how regulatory frameworks can help tackle the harms caused by deepfakes in ways that laws cannot do alone.

Unlike these other jurisdictions, India still takes a rather reactive stance against deepfakes. This is because existing protections against deepfakes are scattered throughout various legal areas, making it difficult to know what rights a victim actually has. Moreover, the law currently favors only celebrities and public figures who can afford access to judicial redress. This is while common citizens suffer the same amount of harm but are unable to enforce their rights due to practical difficulties.

In addition to all of this, lack of an explicit statutory framework makes it difficult for technology firms, content creators, and online platforms to know how consent, liability, and use of deepfake should be regulated. This means that the courts have to fill these legislative gaps through case-by-case development of law.

Recommendations and Conclusion

The advent of deepfake technology has completely changed the dynamic between technology, identity, and law. The existing principles of law were formulated in a period where impersonation was a challenging task to accomplish due to the efforts involved and the high level of technological expertise required. The development of artificial intelligence technology has shifted this scenario by enabling easy manipulation and replication of identities through artificial intelligence technology.

Therefore, India must go past its fragmented system and develop a comprehensive statute that deals with personality rights and synthetic media. The statute will recognize the rights to control one’s image, voice, likeness, and digital identity. This statute will also lay down guidelines for the use of artificial intelligence replicas in consent, set duties on the platforms that provide synthetic content, and provide speedy redressal to the victims of impersonation through artificial intelligence technology.

However, regulations for AI-generated deepfakes need to be crafted with great care because these technological tools are neither bad nor do they lack legitimate uses in educational, entertainment, accessibility, and creative industries. Thus, the primary focus of the legislation should be to avoid abuse, and not stifling technological progress.

In the end, it can be argued that the invention of AI-based deepfakes is one of the most challenging issues from the standpoint of the law in the era of digitalization. Since deepfakes simulate the human identity with great accuracy, they pose serious challenges to traditional legal doctrines of privacy, reputation, and personality rights. Although the Indian judiciary managed to make some significant progress in safeguarding individuals from any kind of digital exploitation, judicial creativity is obviously not enough. It is crucial to adopt appropriate legislation.

References

1. Robert Chesney & Danielle Keats Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 California Law Review 1753 (2019).

2. Danielle Keats Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age (W.W. Norton & Co. 2022).

3. Mark A. Lemley & Bryan Casey, Fair Learning, 99 Texas Law Review 743 (2021).

4. Jennifer E. Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press 2018).

Indian Cases

5. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

6. ICC Development (International) Ltd. v. Arvee Enterprises, 2003 SCC OnLine Del 1059.

7. D.M. Entertainment Pvt. Ltd. v. Baby Gift House, 2010 SCC OnLine Del 479.

8. Titan Industries Ltd. v. Ramkumar Jewellers, 2012 SCC OnLine Del 2382.

9. Shivaji Rao Gaikwad v. Varsha Productions, 2015 SCC OnLine Mad 158.

10. Amitabh Bachchan v. Rajat Nagi, CS (Comm.) No. 819/2022 (Delhi High Court, Nov. 25, 2022).

11. Anil Kapoor v. Simply Life India, 2023 SCC OnLine Del 6914.

12. Arijit Singh v. Codible Ventures LLP, Commercial IP Suit (L) No. 18838 of 2024 (Bombay High Court).

13. Rajat Sharma v. Union of India, W.P. (C) No. 4801/2024 (Delhi High Court).

Statutes

14. Constitution of India, art. 21.

15. Information Technology Act, No. 21 of 2000, §§ 66C, 66D, 67, 67A (India).

16. Copyright Act, No. 14 of 1957 (India).

17. Digital Personal Data Protection Act, No. 22 of 2023 (India).

18. Bharatiya Nyaya Sanhita, No. 45 of 2023, §§ 356–357 (India).

International Sources

19. Regulation (EU) 2024/1689 of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence (Artificial Intelligence Act), 2024 O.J. (L 1689).

20. Provisions on the Administration of Deep Synthesis Internet Information Services (Cyberspace Administration of China, effective Jan. 10, 2023).