Artificial Intelligence, Personality Rights and Commercial Exploitation: Time for Deepfake Specific Legislation?

The discussion about the pitfalls of using Artificial Intelligence (AI) has recently  been dominated by its ability to generate deepfakes, as has been evidenced in  election campaigns and the rising phenomenon of “deepfake pornographic  content”. Recently, the Delhi High Court, Aishwarya Rai Bachchan v.  AishwaryaWorld.com & Ors has addressed the issue of commercial exploitation of  personality rights by AI. This is a landmark order by the court as it reaffirmed the  right to dignity and privacy of celebrity Aishwariya Rai Bachchan while protecting  her personality rights that were being commercially exploited through the use of  AI. The same Court also passed a similar order protecting the personality rights of  Abhishek Bachchan. 

Time for Judicial Recognition of Personality Rights 

The judiciary has been witnessing a rise in litigation surrounding the protection of  personality rights, as actors, film makers, and other celebrities have been  increasingly knocking on the Court’s door for protection from unauthorised  commercial exploitation that is a result of generative content that is being  generated by AI on a massive scale. It is worth noting here that it is not deepfakes  that are impacting the celebrities’ personal rights, but also morphing and digital  manipulation that is harming them. 

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Over the years, the jurisprudence on judicial recognition of personality rights has  developed as courts have granted relief to celebrities. As AI models continue to be  deployed on a large scale basis, similar matters are going to keep coming up before  the court. While reliance on judicial precedents can help address certain nuances of  the issue, it is time that India considers adopting legislation directed at protecting the personality rights of celebrities. This will prevent the judiciary from being  overburdened with similar matters. 

Existing Jurisprudence on Personality Rights 

In the past, Courts have equated the protection of personality rights to that of  trademark protection as seen in the case of Arun Jaitley vs. Network Solutions Pvt  Ltd. However, one of the first judgements that dealt with the commercial  exploitation as a result of the violation of personality rights is D.M Entertainment  House vs Baby Gift House. In this case, the plaintiff was artist Daler Mehendi,  who established D.M Entertainment House and obtained a registered trademark for  the letter DM. This meant that the right of publicity, commercial endorsement, and  other associated rights were owned by the company. The defendant was the owner  of toy and gift shops across Delhi, who was selling unauthorised Daler Mehendi  speaking dolls. To provide relief to the plaintiff, the Court relied on the provisions  of trademark law, such as passing off and false endorsement, as there was and  continues to be no specific legislation that deals with personality rights. 

In such a scenario, Article 21 of the Indian Constitution, which guarantees the  Right to Privacy, and India’s Intellectual Property Framework have come to the  Court’s aid while dealing with the issues concerning violation of property rights.  However, the unprecedented use of AI to generate sexually deepfakes of  celebrities, along with using them for unauthorised endorsement, is a new  challenge before the Courts. 

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Relief Granted by the Court 

In the interim injunction granted by the Court, Aishwariya Rai Bachchan has been  granted temporary protection as several websites, companies and unidentified  websites have been restrained by the Court from using her images or any associated aspect of her personality, such as her name from being used for personal  or commercial gain. It is noteworthy that the Court has specifically restrained the  use of AI to generate any deepfakes or circulate them, along with any form of  digital manipulation. To ensure the implementation of the relief, the Court has  directed the Ministry of Electronics and Information Technology to issue blocking  orders for URLs that are housing content. 

Solutions for Addressing the Problem of Deepfakes 

At the core of the personality rights matters that are coming up before the court is  the issue of generation and dissemination of deepfakes, which are enabling the  commercial exploitation of the celebrities' interest. It is different from how  personality rights violations used to play ot in the past- as they were still easier to  identify and shutdown. However, the massive scale on which AI models are used  to generate deepfakes makes it an extensive exercise for the government to shut  down such websites that indulge in these practices. 

When we talk about personality rights, perhaps reliance can continued to be placed  on judicial precedents as there is no specific legislation that deals with it. However,  deepfakes regulation is another issue that warrants urgent consideration, especially  when we are talking about personality rights. Currently, Section 66D of the  Information Technology Act, 2000 (IT Act) punishes identity fraud and online  impersonation using AI-generated deepfakes. Similarly, legislation like the  Indecent Representation of Women (Prohibition) Act, 1986, that the publication of  morphed images/videos of women, and the Digital Personal Data Protection Act,  2023, provides safeguards against unauthorized use of personal data in AI generated deepfakes. 

While this legislation is helpful, it is time that India starts either exploring the  prospect of having a legislation that deals with deepfake generation by AI or having an AI legislation in place that penalizes the unauthorized use of deepfakes.  As personality right violations will continue to happen and celebrities will keep on  approaching the Court, having legislation in place that deals with AI-generated  deepfakes is crucial.