Deepfakes and Criminal Law: Need for a New Offence?

Written by Sneha Singh

Table of Contents

• Introduction
• What are Deepfakes?
• Deepfake Misuse and Criminal Risks
• Indian Legal Framework: Existing Provisions
  • 1. Indian Penal Code, 1860 (IPC)
  • 2. Information Technology Act, 2000
  • 3. Data Protection and Privacy Law
• Why Existing Laws Are Inadequate
• Global Approaches to Deepfake Regulation
• Arguments for a New Offence under Indian Criminal Law
• Conclusion

Introduction

In the age of artificial intelligence and synthetic media, deepfakes have emerged as a powerful yet potentially dangerous tool. Derived from the combination of “deep learning” and “fake,” deepfakes are hyper-realistic but artificially generated videos, images, or audio recordings in which individuals appear to say or do things they never actually did. These manipulations, often undetectable by the human eye, have sparked global concerns over misinformation, cybercrime, political sabotage, and privacy violations.

While deepfakes can have positive applications in entertainment, education, or accessibility tools, their misuse has become increasingly rampant—ranging from non-consensual pornography and defamation to election interference and financial fraud. The legal system, particularly criminal law, now faces a critical question: Is there a need to create a new and specific offence to address the unique harms posed by deepfakes?

This article explores the nature of deepfakes, their intersection with Indian criminal law, the inadequacies of the current legal framework, and the arguments for a standalone legal offence to tackle deepfake-related crimes.

What are Deepfakes?

Deepfakes are created using advanced artificial intelligence techniques, especially Generative Adversarial Networks (GANs). These algorithms can learn from massive datasets—such as videos, images, and voice recordings—to produce synthetic but convincing media. A deepfake can:

• Place someone’s face onto another person’s body (face-swapping)
• Mimic a person’s voice or speech patterns
• Alter facial expressions in a video
• Fabricate entirely new audio-visual content

While this technology has the potential to revolutionize media and creativity, its misuse has led to serious legal and ethical challenges.

Deepfake Misuse and Criminal Risks

The criminal misuse of deepfakes spans a wide range of offences, including:

1. Non-consensual pornography and sexual exploitation
   • Victims, especially women, are targeted by placing their faces on pornographic videos or nude images without consent.
   • This has serious consequences for their dignity, mental health, and personal safety.
2. Defamation and character assassination
   • Deepfakes can be used to spread false statements or fabricate incriminating behavior, damaging reputations.
3. Political manipulation and misinformation
   • Synthetic videos of politicians or public figures making false statements can sway elections or incite violence.
4. Financial fraud and impersonation
   • Deepfake audio or video can trick employees or banks into transferring funds or sharing sensitive data.
5. Cyberbullying and online harassment
   • Deepfake content is used to threaten, blackmail, or humiliate individuals, especially on social media.

Indian Legal Framework: Existing Provisions

Currently, India lacks a specific law that criminalizes the creation or dissemination of deepfakes. However, certain existing provisions under criminal and cyber laws may be invoked to deal with deepfake-related conduct, depending on the context.

1. Indian Penal Code, 1860 (IPC)

• Section 469 (Forgery for purpose of harming reputation)
  Covers the creation of false documents or electronic records with the intent to harm someone’s reputation.
• Section 500 (Defamation)
  Can apply where deepfakes are used to publish false and defamatory content.
• Section 354A and 354C (Outraging modesty of women / voyeurism)
  May be invoked for deepfakes involving sexual imagery or non-consensual use of women’s likenesses.
• Section 292 (Obscenity)
  Deepfake pornography may attract liability under obscenity laws.

2. Information Technology Act, 2000

• Section 66E (Violation of privacy)
  Punishes capturing, publishing or transmitting images of private areas without consent.
• Section 67 and 67A (Publishing or transmitting obscene material)
  Applies to sexually explicit deepfake content shared electronically.
• Section 66D (Impersonation using computer resources)
  Addresses cheating by impersonation using digital means, which may apply to deepfake impersonation.

3. Data Protection and Privacy Law

With the enactment of the Digital Personal Data Protection Act, 2023, there is now a statutory framework to protect personal data. However, the Act does not directly address the misappropriation of biometric data or likeness, nor does it create criminal offences for such acts.

Why Existing Laws Are Inadequate

Despite the availability of these provisions, they fall short in addressing the unique nature and harms of deepfakes:

• No mention of AI-generated content: Most laws were drafted before the advent of synthetic media and do not address the use of AI to generate false content.
• Difficulties in attribution: Deepfakes can be created and shared anonymously, making it hard to identify and prosecute perpetrators under existing laws.
• Lack of deterrence: The penalties under general provisions may not be adequate given the severe and irreversible harm deepfakes can cause.
• Absence of remedy for likeness misuse: Indian law lacks a clear right of publicity or image rights, making it difficult for individuals to claim ownership over their own facial or vocal features.
• Jurisdictional and enforcement gaps: Deepfake content can spread across platforms and borders in seconds, while Indian laws struggle to keep pace with the transnational nature of these crimes.

Global Approaches to Deepfake Regulation

Several jurisdictions have started addressing deepfakes through specific legislation:

• United States: Some states like California and Texas have passed laws criminalizing deepfakes used in elections and non-consensual pornography.
• European Union: While the EU has not passed a deepfake-specific law, the proposed AI Act includes deepfakes under high-risk AI applications and mandates transparency.
• China: Enacted rules in 2023 requiring that deepfakes include clear markings and that users do not create or distribute harmful synthetic content.

These developments highlight a global trend toward explicit regulation of deepfakes, particularly in high-risk areas such as elections, consent, and fraud.

Arguments for a New Offence under Indian Criminal Law

Given the unique nature of deepfakes, there is a strong case for creating a dedicated offence within the IPC or a special law to address the creation, distribution, and use of malicious deepfake content.

Key components of a proposed offence could include:

1. Definition of Deepfake
   • Define deepfakes as synthetic media generated using AI or digital tools that falsely depict a person engaging in acts or speech they did not perform.
2. Consent-based framework
   • Criminalize the creation and sharing of deepfake content without the knowledge or consent of the person depicted, especially in sexual or reputational contexts.
3. Enhanced penalties for aggravated offences
   • Provide stricter punishments when deepfakes are used for revenge porn, electoral manipulation, financial fraud, or child abuse.
4. Right of redress and takedown
   • Introduce fast-track mechanisms for victims to report and take down deepfake content from platforms and search engines.
5. Platform liability and traceability
   • Mandate digital platforms to detect, label, and remove deepfakes, and to maintain audit trails to assist in investigations.
6. Anonymity and attribution safeguards
   • Empower law enforcement to trace the source of malicious deepfakes without compromising internet privacy rights.

Conclusion

Deepfakes represent one of the most pressing technological challenges to personal dignity, democratic discourse, and public trust. While existing Indian laws provide partial remedies, they lack the precision, scope, and enforceability required to effectively combat the growing menace of deepfake crimes.

There is an urgent need for a dedicated legal framework—either through a new offence under the Indian Penal Code or a standalone legislation—that recognizes the distinct harms caused by AI-generated content. Such a law should balance innovation with accountability, safeguard individual rights, and empower enforcement agencies to act swiftly and effectively in this fast-evolving digital era.

By proactively addressing deepfakes through targeted legal reform, India can strengthen its commitment to privacy, security, and the rule of law in the digital age.