Introduction

What if I told you that tomorrow you wake up and, while scrolling through your feed, you find a video of yourself endorsing a cryptocurrency scam you’ve never heard of, but it’s a high-quality recording with your voice and that slight twitch of the left eyebrow when you are being serious? It is perfect. And it is fake.

A few years ago, this was dystopian science fiction. Today, it is just another Tuesday on the internet. Welcome to the world of generative AI, where the most prized possession being bought, sold, and remixed isn’t data; it is you.

Deep fake technology has risen with the ability to produce synthetic media that swaps your face and clones your voice with amazing precision, and has created a significant legal whirlwind globally. But in India, a nation obsessed with movie stars and creating a massive digitalisation wave, it is creating a very different and unique situation.

What we are witnessing is a clash of cutting-edge technology and an ancient legal doctrine called Personality Rights.

“Jhakaas” Moment: When Courts Drew the Line

Intellectual Property Law has typically been something others dealt with, such as corporations having legal battles regarding microchip patents. With the rise of deepfake Technology, it has become a much more intimate part of individuals’ lives.

In India, “Personality Rights” as a concept is not clearly defined in a specific piece of legislation, unlike most other countries. We do not have a single section entitled “Section 1 of the Personality Act”. Therefore, the Courts created a “Frankenstein” style of law concerning Personality Rights over the past several years, beginning with the right to privacy contained within our Constitution and using the common law principles of the tort of passing off and defamation.

The concept itself states that if an individual has created a name, image, voice, or signature persona and this has commercial value, then that individual has exclusive rights to exploit that persona commercially. In addition, that individual has the right to prevent others from commercially exploiting that persona without permission.

In recent months, there have been several high-profile cases involving Bollywood stars that have helped us reach this tipping point.

A recent legal milestone occurred with Anil Kapoor’s case in front of the Delhi High Court, where he sued not only one person/corporation, but tried to get an injunction against the entire internet. Anil took to court because people were making use of artificial intelligence (AI) to copy his voice, image, and even his famous phrase “Jhakaas“. Some were making use of it to sell products, others for derogatory memes, and still others to create fake endorsements.

In response, the court took an aggressive approach by issuing a John Doe injunction. A John Doe injunction is a type of order that essentially states, “there are many infringers, and we do not yet know who they are; however, we want to stop them from using Anil Kapoor’s persona using AI or any other means for commercial purposes.”

This was a huge message to everyone that the courts did not have to know exactly how the deepfake technology works in order to recognise theft.

Amitabh Bachchan is also getting similar protections from the courts. The message sent to those in the AI industry was loud and clear: just because one has developed amazing technology does not give him/her a right to take someone else’s identity and use it without permission.

It’s Not Just About Actors Selling Soap

Although it may be tempting to view the actions of the rich, famous and powerful as simply being about their ability to protect their financial interests from misrepresentation or theft, it misses the larger picture.

When someone with an entire army of lawyers cannot control the way their likeness is used for the promotion of false or inappropriate information, what hope does an ordinary person have? One of the most striking examples of the challenges to our democracy took place in the recent election cycles in India, where both deceased and living politicians’ voices were cloned using AI and manipulated to create false speeches. This created a situation in which the concepts of reality or truth became so muddled that they were completely open for debate. If you do not know whether what you are hearing is true or fabricated through AI, the integrity of the democratic process will suffer. As personality rights develop from a protection against commercial exploitation to serving as an important protective function for human dignity in the digital landscape, there is a legal movement to begin to state that there is an inherent/rooted connection between a person’s inherent nature and their outward representation (face), and that no machine should be permitted to sever that connection merely because it can.

Grey Areas in the World of Mimicry, Memes, and the Dead

When courts place too many restrictions on a celebrity’s identity or likeness, how does this affect the impersonation artist? India has a long-standing tradition of practising comedic impersonations. Would an excellent impersonator performing on comedy programming now have to obtain a permit before the act?

Courts are working to clarify the distinction between genuine satire and artistic expression versus commercial exploitation through deepfake technologies. Realistically, considering that the popularity of memes on the internet can be monetised today, the boundary may have become blurred as to when a “fan tribute” crafted with artificial intelligence crosses into copyright infringement. Things also progress to the macabre. 

What about those who have died?

Posthumous personality rights can present a significant difficulty regarding the legality surrounding these issues. Would it be permissible for studios to create an artificial intelligence-generated portrayal of a deceased artist in a future film? Would it require the consent of the deceased’s family or their estate? For how long would such rights extend after their death? In a future where technology can be used to either digitally restore or prolong an actor’s career through the manipulation of algorithms, there is a significant gap in the current laws regarding the ethics and legality of these applications.

This aggressive legal approach also creates new complications. What will be the potential boundary?

Game of Whac-A-Mole

Even when courts make stronger decisions, implementing those decisions is extremely difficult. Internet service providers have no regional restrictions. Take, for instance, a situation where someone receives a restriction notice (injunction) from the Delhi High Court; however, the deep-fake may very well have been created in Eastern Europe and stored on an American server (i.e., in Silicon Valley).

To add to this issue, the companies providing the service of the social media platforms are currently battling what seems like a never-ending game of “Whac-A-Mole“. While these companies may successfully remove ten deep fakes, there will likely be hundreds of additional deep fakes created within the timeframe of removing the first ten.

Currently in India, the law is designed to put a ‘due diligence’ obligation on platforms such as these. Once a platform is made aware of infringing material, it is required to remove it within a specific time period to protect itself from liability (i.e., provide a safe harbour). As this legislation becomes more prevalent, additional arguments are being made that simply having a safe harbour is not sufficient. If these platforms had better proactive filters for intercepting clear-cut examples of ‘AI likeness theft’ during the upload phase, then they would be able to reduce the amount of time it takes to remedy a wronged victim by not having to wait for that victim to report the infringement.

Conclusion: Future of “You”

The future changeover to new forms of tech is difficult. The speed of changes in AI technology is greater than the Law that has always been slow in responding to this change.

At the moment in time, India continues to rely heavily on the Courts exerting “Judicial Activism” to deal with technology issues on/as they arise, being dealt with on a case-by-case basis. At the end of it all, and to some extent, this is working, but it is quite untidy and messy. We are quickly approaching a resolution requiring a Codified Law for digital personality rights that properly supports and strikes the correct balance between Innovation and Freedom Of Speech, in addition to ensuring that we, as the people, always maintain our Fundamental Rights to Control our own faces. Up until that time (and beyond), the Battle for your Identity will go on in the Courts. While the “Jhakaas” decision is an initial step to correcting the wrongs done, it is simply the first step. We don’t yet know if the story ends with us living in a utopian world of creators owning their digital Identity or a dystopian world where we are simply the Training Data set for the Machines.

References

1. Anil Kapoor v. Simply Life India & Ors., CS(COMM) 652/2023 (Del. H.C. Sep. 20, 2023).
2. Amitabh Bachchan v. Rajat Negi & Ors., 2022 SCC OnLine Del 4110.
3. India Const. art. 21.
4. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3.
5. Indian Penal Code, 1860, §§ 499–500 (or Bharatiya Nyaya Sanhita, 2023, § 356).
6. Reckitt & Colman Products Ltd. v. Borden Inc., 1 All E.R. 873 (The “Classical Trinity” of Passing Off).
7. Election Commission of India, Advisory on the Use of Artificial Intelligence and Deepfakes in Election Campaigns, No. ECI/PN/72/2024 (May 6, 2024).