Can Deepfake Technology Violate Personality Right Personality rights and Trademark laws in India?

INTRODUCTION

Personality rights are the rights arising out of prolonged recognition of expressions, acts, habits, and other special attributes of a socially recognized personality, which provide for protection of such special attributes under the umbrella of intellectual property laws all over the world. Laying emphasis on the protection of personality rights in India, we find no particular specific legislation providing provisions for such safeguards, and rather, interpretation of judicial precedents, application of Article 21, and discretion of courts swoop in to provide protection for such rights in the present regime. In the modern world, issues pertaining to such rights have been blooming large as personalities from the entertainment industry, the sports industry, and politicians whose attributes affect people widely find themselves in the conflict when someone does an act, performance, or content in the public domain that is commercially motivated and is most likely to deceive the public, as such an act or performance finds itself almost similar in its appearance or outlook to that of the original one. Taking such deception as core to our present issue, modern-day technologies like artificial intelligence and machine learning have given rise to manipulation of acts or performances of public figures in a way that such acts or performances did not happen the way they are being shown through such manipulated videos. For example, a politician who has a recognized voice in the public realm is shown to deliver a speech that he actually never did, and yet the video of such speech finds public trust that he/she actually delivered the speech, thereby creating potential threats for false narratives or evil sentiments. Therefore, manipulation of personality attributes through usage of technology has posed a serious threat and has questioned the veracity of modern-day technologies like Deepfake technology, which is a confluence of artificial intelligence and machine learning. Hence we now tend to explore the extent of infringement of personality rights happening under the present technological regime through the lens of trademark laws in India

UNDERSTANDING DEEPFAKE TECHNOLOGY

Deepfake technology is a type of artificial intelligence technology used to create convincing fake videos, images, and audio recordings. Deepfakes often tend to create content that is entirely original and contains people or objects that are well known, but the only difference is that the content being shown through such manipulated images, videos, or audio never existed in real life and is purely formed out of such a technological process imbibing real characteristics.

Understanding deepfakes through a technological lens, we come across the fact that deepfakes use two algorithms—a generator and a discriminator—to create and refine fake content. The generator’s function is to create the initial fake content, and then the discriminator spots the flaws and helps the generator to improve the authenticity of the fake content created.

Such a technology, according to a report by the U.S. Department of Homeland Security, creates fake content in a matter of seconds and thus acts as a weapon of massive danger in this cyber world. Therefore, major illegal activities carried out through the usage of deepfake technology are as follows:

1. Falsely created evidence: Deepfake technology, by virtue of the processes involved, helps in creating false evidence for presenting in the court of law, thereby manipulating the legal proceedings.

2. Fraudulent acts: Deepfake technology in this modern world have opened up avenues for the cybercriminals to use such technology to create videos or images which could be used to up commit crimes involving fraudulent money transfers or extortion, etc.

3. Spreading Misleading and false narrative among the public: People all over the world have access to social media platforms where people with malicious intent create such content, which spreads disharmony among the public and poses a threat for massive conflicts.

HOW DEEPFAKE TECHNOLOGY INFRINGES PERSONALITY RIGHTS?

With the advent of technological influence in the form of Deepfake technology, cybercriminals tend to create videos that are driven by malicious intent for profit-making purposes. These videos/images/graphics usually inculcate in themselves popular personalities who are shown in a manner performing a particular act that in reality they never did, thus attracting popularity through various social media platforms and hence generating profits for the perpetrators of this cybercrime. In its essence, personality rights are said to be infringed when a well-known act/gesture/dialogue or other special attribute of a popular personality is exploited by means of copying or mala fide use of such copied material for commercial purposes without valid authorization in the public realm. To its defense, we do not find any particular provision under the Indian legal system that explicitly protects such rights, but still celebrities in India find protection of their personality rights under the light of Article 21 of the Constitution and the Trademarks Act 1999, as also the Delhi High Court, which is the leading judicial body in India, has provided for continuous protection of the personality rights by using its discretion and conscience, as it has since the 1990s, and has developed a significant jurisprudence in the realm of protecting such rights. Hence, by understanding Deepfake technology’s usage in infringing personality rights, we come across the fact that the joint usage of provisions of the Information & Technology law and the Trademark Act 1999 through its section 14 provides remedial measures that could be availed in the court of law. Therefore, in the absence of any particular framework or measure or subject-specific law, there exist challenges that give rise to numerous threats to celebrities, which could be summarized in a manner mentioned below:

1. Passing off: Deepfakes that use a person's likeness, voice, or mannerisms to promote products or services they do not endorse can be considered passing off. This misrepresentation tricks consumers into believing the public figure has a genuine affiliation with the brand. Taking inspiration from the landmark case of Titan Industries v. M/s. Ramkumar Jewellers, the Delhi High Court restrained a jeweler from using celebrity photographs without permission, ruling that prominent people have the right to control how their identity is used commercially.

2. Defamation and Damage to Goodwill: Deepfakes can harm a person's carefully built public image and brand value. When a deepfake uses a celebrity's persona in a derogatory or false light, it damages the goodwill and reputation associated with their identity, which has commercial value akin to a brand.

Therefore, deepfakes act like a modern weapon in the present technological regime, where celebrities are prone to such malicious acts, which harm their reputation and goodwill and exploit their brand value for evil commercial purposes.

SAFEGUARDS

Having examined the extent of acts that hamper the personality rights, there also exist the legal safeguards that could be availed by victims of such infringement; thus, such legal safeguards provided under the Indian legal system are as follows:

1. Article 21 of the Constitution of India: In the Indian legal context, protection of personality rights is sought against any kind of infringement, as it advocates for the right to life and privacy, which are evidently the heart and soul behind the jurisprudence of personality rights in India.

2. Judicial Discretion: For seeking protection against such malicious acts, various judicial bodies in India, especially the Delhi High Court, have developed a separate jurisprudence over the years through their discretion and conscience, due to which maximum cases pertaining to personality rights infringement are dealt with by this court.

3. Trademarks Act 1999: Though no special provision is given for such rights protection, yet the courts in India take their inspiration from Section 14 of the act, as it provides for individuals to get trademarks registered under their name.

4. Intermediary Liability under Information and Technological Law: Under the IT (Intermediary Guidelines) Rules, 2021, social media platforms are required to swiftly take down deepfake content reported as misinformation or privacy violations. Failure to do so can result in the loss of their legal immunity (safe harbor).

Thus, the abovementioned are the legal safeguards provided by the Indian legal system, which are relied upon for seeking remedies in case infringement of personality rights takes place. Specifically, in today’s era, the conjoint usage of the IT Act & Rules, the DPDP Act & Rules, as well as the provisions of the constitution and IPR law, gives a solid shield to the citizens of the country against any material breach.

CONCLUSION

Therefore, having conducted a brief analysis of the deepfake technology and its impact on the personality rights in India, we understood that deepfake technology poses serious challenges to personality rights and trademark laws in India as it digitally manipulates a person’s image, voice, or likeness without consent. Furthermore, deepfakes can infringe upon an individual’s right to privacy, reputation, and identity, which are evidently core elements of personality rights. Moreover, when a celebrity’s likeness is misused for commercial gain, it can also amount to trademark infringement or passing off. Therefore, there stands an urgent need for clearer legal frameworks and stronger enforcement mechanisms to address misuse of deepfake technology and ensure effective protection of personality and trademark rights in India.