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Navigating AI Deepfakes: India's Evolving Stance Versus Denmark's Pioneering Bill

  • Writer: Soumya Juneja
    Soumya Juneja
  • 16 hours ago
  • 7 min read

 

Introduction

The advent of deepfakes, sophisticated synthetic media generated by artificial intelligence, has ushered in a new era of digital challenges. These manipulated images, videos, and audio clips are rapidly evolving in realism and accessibility, posing significant threats across various domains.  Every country is falling prey to the use of AI, which has now transcended into deepfakes and misuse of celebrity personalities. This directly undermines individual privacy, reputation, and the integrity of public discourse and democratic processes. All over social media, there is AI generated content now and the general public cannot differentiate between the two: AI and reality. For instance, there are multiple videos of Bollywood actresses morphed and posted across various social media platforms to get views and engagement. This is the most common example nowadays, however, there are so many more instances which are far more harmful. In such cases as well, a celebrity’s likeness and attributes are being copied to gain traction and, in the end, maybe earn profit or popularity.


The rapid technological advancement of deepfakes inherently creates a legislative lag, where existing legal frameworks struggle to keep pace with novel forms of digital harm. Technology, particularly AI, progresses at an exponential rate, constantly introducing new capabilities and challenges. This article will delve into how two distinct jurisdictions are grappling with this complex challenge: Denmark, which is taking a pioneering, proactive legislative stance, and India, which is currently navigating the issue with existing legal tools while actively planning future, more comprehensive reforms.

 

India's Evolving Response: Navigating Deepfakes with Existing Legal Tools

India's legal framework for deepfakes and AI is evolving, primarily relying on existing statutes rather than specific, standalone deepfake legislation. The core framework includes the Information Technology Act, 2000 (IT Act), and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021). 


Relevant provisions under the IT Act, 2000, include Section 66C (identity theft), Sections 66D (cheating by impersonation using a computer resource) and 66E (publication or transmission of private images without consent). Sections 67, 67A, and 67B prohibit obscene or sexually explicit material. The Bharatiya Nyaya Sanhita (BNS), which replaced the Indian Penal Code, 1830 also allows legal action for deepfake-related offenses like defamation, or obscenity.[1] Even though the above-mentioned provisions can assist an individual in cases pertaining to deepfakes; a more robust legal framework is required to effectively address such challenges.


India has seen several high‑profile deepfake incidents at this point and it is not an imaginary concept anymore. For instance, a morphed video of actress Rashmika Mandanna in late 2023 led to an arrest and FIRs under IPC sections 465/469 and IT Act provisions (66C, 66E).[2] This has become a common occurrence in today’s day and age as the public has started misusing technology. These cases are often prosecuted under existing criminal law rather than under tailored regulations.


India's approach places significant obligations on social media intermediaries (SMIs). Platforms must exercise due diligence to identify misinformation and deepfakes, especially content violating rules or user agreements. They are mandated to take "expeditious action" and remove content within 36 hours of a report from a user or government authority. Platforms must also prevent users from hosting such content. Non-compliance with IT Rules, 2021, invokes Rule 7, leading to loss of protection under Section 79(1) of the IT Act, 2000 (intermediary immunity), and empowering individuals to sue platforms under the IPC.[3]


The Indian government prioritizes digital safety. Union Minister Shri Rajeev Chandrasekhar stated that "safety and trust of digital citizens" are paramount, identifying deepfakes as a "major violation".[4] Platforms are urged to take proactive measures, and victims are encouraged to file First Information Reports (FIRs) and use IT Rules, 2021 remedies. 


In this recent judgment of Ankur Warikoo & ANR. v. John Doe & ORS.[5], the plaintiff is a well-known financial influencer. Unknown people, in this case, were using his personality i.e., likeness, image, name or voice to mislead the public for personal gain. Delhi High Court in the Ankur Warikoo case concluded that the balance of convenience was easily in the favor of the Plaintiff as this impersonation was directly affecting the public and was increasing fraudulent schemes. Since, Warikoo’s identity is inherently based on financial literacy, it could deeply deceive the public. However, this case clearly took the angle of consumer protection and failed to link that with personality rights.[6]


Personality rights in India, or the right to publicity, stem from the ethical belief that individuals should control the commercial exploitation of their persona. While not statutorily recognized, their scope is defined by judicial decisions. This safeguards livelihood, privacy, and dignity against unauthorized AI-generated content. Notable cases include Anil Kapoor v. Simply Life India & Ors.[7] and Amitabh Bachchan v. Rajat Negi and Ors.[8], where both the actors respectively were successful in obtaining injunctions from the Delhi High Court against misuse of their personality attributes, including AI deepfakes, citing unauthorized use and balancing convenience in their favor regarding copyright, personality rights, common law rights, and privacy. This demonstrates the judiciary's adaptive role in filling legislative gaps.[9] 


India's reliance on intermediary liability and judicial interpretation reflects a reactive and adaptive legal strategy. While offering immediate relief, it burdens individuals and the judiciary to define deepfake misuse case-by-case. This patchwork approach, relying on existing acts, rules, and evolving precedents, builds legal clarity slowly, which can be costly and time-consuming for victims and lead to inconsistent application. The system largely acts after deepfake dissemination, focusing on removal and punishment, rather than proactive prevention or responsible AI development. This pragmatic short-term approach may not provide the comprehensive, predictable legal environment needed to combat deepfake proliferation effectively.


Denmark's Proactive Stance: Pioneering Digital Copyright for Personal Likeness


Denmark is poised to become the first European country to explicitly grant individuals copyright over their own face, voice, and physical likeness to combat AI-generated deepfakes.[10]

The new law will amend Denmark’s copyright law, allowing individuals to claim legal ownership of their personal appearance and voice. Key provisions of the proposed bill[11] will not only include the right to demand removal of any deepfake video, synthetic voice clip, or manipulated image created without consent but also claim financial compensation for unauthorized use. Culture Minister Jakob Engel-Schmidt emphasized the Bill's aim is to provide every individual with an absolute right i.e., "unequivocal message that everyone owns the rights to their own body, voice, and facial features,"[12] addressing a gap in current law concerning generative AI. 


The law's primary objective is to curb harmful AI uses, such as non-consensual deepfake pornography, financial scams, and fabricated political content. It includes exceptions for parody and satire, balancing rights with freedom of expression. Platforms failing to remove flagged content could face "steep fines," increasing their accountability. Denmark's approach is a "significant shift" due to its direct grant of copyright over biometric data, setting a pioneering precedent in Europe.


This approach could establish a new legal category or strengthen "digital personality rights," offering a more direct and tangible mechanism for individuals to control their digital selves.[13] It moves beyond prohibiting misuse to affirming ownership, potentially influencing global legislation and compelling platforms to treat biometric data with the same reverence as copyrighted material.


This Amendment will set a standard for other countries as no country has legislation that protects one from unauthorized AI impersonation. Your likeness is no longer considered to be private, and it can very easily be exploited or cloned. Thus, the proposed bill is paramount for the safety of every citizen.


The Legislative Gap in India: Challenges and the Path Forward


Despite existing provisions, India faces a significant perceived lack of specific and comprehensive legislation to effectively control AI-generated deepfakes.


Challenges of this legislative gap include:


●      Inadequate Scope: Current laws don't specifically address deepfake technology's unique ability to create convincingly real but fictional content that misleads the public beyond simple fraud or obscenity. 

●      Reactive vs. Proactive Measures: The existing regime is predominantly reactive, penalizing after the fact, lacking robust proactive mechanisms to prevent deepfake creation and widespread dissemination. 

●      Technological Pace: Evolving deepfake advancement is making it hard for laws to keep up with the pace.

Despite this, the Union Government has taken steps. An advisory was issued to SMIs on November 7, 2023, urging swift action against deepfake content. Crucially, on November 27, 2023, the Union announced plans to draft “new regulations and amend existing laws specifically to combat deepfake creation and spread”.[14] This forthcoming legislation is expected to focus on identification, prevention, reporting, and public awareness. The importance of involving industry stakeholders, such as deep learning developers and SMIs, in the regulatory process is emphasized, as they can provide insights for effective solutions. 


Conclusion: Lessons and Recommendations for India's Deepfake Legislation


The analysis of India's and Denmark's approaches reveals distinct yet critical responses to deepfakes. Denmark's bold, rights-centric approach contrasts with India's adaptive, intermediary-focused framework. While India has taken proactive steps through advisories and plans for new legislation, the comparison offers valuable lessons.


The Danish model also shows the importance of balancing rights with exceptions for parody and satire. For India, future legislative efforts are a critical juncture.


Recommendations for India's deepfake legislation:


●      Accelerate Specific Legislation: Dedicated deepfake legislation is needed to provide greater legal clarity and predictability, moving beyond the "inadequate scope" and "reactive" nature of current laws.

●      Proactive Measures and AI Governance: Move beyond just addressing deepfake "spread" to regulating their "creation." This could involve mandating watermarking, provenance tracking, or ethical guidelines for AI developers. Moreover, involving industry stakeholders is crucial.

●      Enhanced Enforcement and Awareness: Strengthen enforcement of existing IT Rules and BNS provisions for timely action. Launch public awareness campaigns on deepfake risks, identification, and reporting.

●      International Collaboration: Active participation in international discussions and harmonization efforts is vital for developing global standards and cross-border enforcement against borderless deepfakes.

India's chosen path will impact its citizens' digital safety and its position as a major digital economy. This decision will reflect India's broader philosophy on digital rights and AI governance in an increasingly complex digital world.




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Soummya Juneja

Associate








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