2.2 Morphing/Deepfakes

The creation of a morphed image or video results in a range of overlapping violations. Chief among them is the violation of the victim’s right to privacy and bodily integrity. Another relates to issues of identity fraud and digital misrepresentation. Further, since these cases usually involve images being morphed into pornographic ones or the creation of sexual deepfakes, they raise the issue of dissemination of sexually explicit materials, which is punishable under Section 67A of the Information Technology (IT) Act, 2000 (IT Act).

Though there are no legal provisions in India that directly address the offense of morphing, existing provisions of the Indian Penal Code (IPC) and the IT Act could be interpreted in such a way as to cover the act of morphing and deal with the specific harms arising from it.

Sections 463 and 465 of the IPC, which deal with the offense of forgery, could be invoked in cases of morphing, as it essentially involves the making of a false electronic record with the intent to cause damage or injury to a person. If the act of morphing is coupled with threats or intimidation, Sections 503 and 506, which punish acts of criminal intimidation, could be applied. Further, Sections 499 and 500 of the IPC relating to the offense of defamation would be applicable if the publication of morphed images injures the reputation of the affected women.

Section 67A of the IT Act, which punishes the act of transmitting sexually explicit materials, would apply in the case of dissemination of sexually morphed images or sexual deepfakes. If the morphed image is used to cheat someone by impersonation, then Section 66D of the IT Act would apply.

While Section 66E of the IT Act punishes violation of privacy by the non-consensual capture or dissemination of private images of a person, it does not specifically include cases where the photo of a person’s face is transposed onto the nude body of another. Therefore, it is doubtful if the words of Section 66E allow it to be invoked in cases of morphing.

2.2.4.1 State v. Madachirayil Gopinathan Suni (2018)⁴State v. Madachirayil Gopinathan Suni, CNR no. DLCT02-000212-2005, judgment dated 31 August 2018, Delhi District Court, at para 28.

While courts have acknowledged the injury caused by morphed images and held perpetrators guilty, references to the modesty of the victim and reliance on obscenity provisions are all too common in the adjudication of such cases. In this Delhi District court case, the accused sent obscene and threatening emails to the victim along with a morphed image and demanded sexual favors and threatened to upload the images on pornographic websites. When she refused, he uploaded the morphed images to the homepage of a pornographic website, and the image was taken down by the owners of the website only much later.

The court in its judgment referred to the offending email communication, which contained a morphed photograph along with threats of extortion, as follows:

“The words and photographs mentioned in the emails were clearly intending that such words shall be read and the object/photograph shall be seen by the complainant woman so as to insult her modesty. Such obscene and pornographic material, which had been suitably modified and morphed by superimposing her face on a pornographic picture, would be sufficient to make out an offense under section 509 IPC.”⁵State v. Madachirayil Gopinathan Suni, CNR no. DLCT02-000212-2005, judgment dated 31 August 2018, Delhi District Court, at para 28.

The court also convicted the accused under Section 67 of the IT Act (transmission of obscene material) based on the following reasoning:

“It is thus clear that the material in question is lascivious and appeals to the prurient interest which tends to deprave and corrupt the persons who are likely to read, see or hear the matter contained or embodied in it, which was published, transmitted or caused to be so published or transmitted in electronic form. The emails are certainly in electronic form. Any person reading the emails and looking at the morphed obscene picture of the complainant, would tend to deprave and corrupt.”⁶State v. Madachirayil Gopinathan Suni, CNR no. DLCT02-000212-2005, judgment dated 31 August 2018, Delhi District Court, at para 25.

The reliance on patriarchal notions of modesty and the framework of obscenity fundamentally misrecognizes the nature of the offense and the harm caused to the victim, and therefore, does not appreciate its gravity. Couched in the language of “outraging modesty” and “insulting” women, the legal definitions of such crimes give the impression that they merely offend women, while diluting the harrowing experience of harassment as an act of violation. While invoking “outraging the modesty of a woman” under Section 509, courts should be cognizant that the narrative of womanly modesty is centered around anxieties surrounding a woman’s sexuality. This, in turn, ends up promoting the idea of regulating a woman’s behavior instead of upholding her rights.⁷Tewari, A. (2017). My Modesty Is Not Outraged, I Am! Patriarchy In The Language Of Law. Feminism in India. https://feminisminindia.com/2017/08/28/modesty-outraged-patriarchy-law/ While this Section has been applied in favor of the victim, as the following case will show, it can also be used by courts to pass moralistic statements about a woman’s conduct and deny her remedy.

The application of the obscenity clause also does not address the harm or rights violation suffered by the victim. The court in the above-mentioned case was more concerned with whether the morphed image would deprave or corrupt an individual viewing it as opposed to remedying the rights violation suffered by the victim. It neither acknowledged nor addressed the violation of the victim’s privacy and bodily integrity or the digital misrepresentation or defamation that she may have faced due to the acts of the accused. Therefore, while the court’s judgment may have convicted the accused, the reasons for the conviction did not uphold the rights of the victim but rather relied on regressive frameworks which seek to regulate and restrict women’s behavior. Instead of Section 509 of the IPC and Section 67 of the IT Act, the court in this case could have used Sections 463 and 465 of the IPC for forgery with intent to cause damage or injury to a person.

Another point to note in this case is that the creation of the morphed image co-occurred with blackmail, as the offender threatened to send the morphed photograph of the victim to her husband. Despite the court’s reliance on the archaic modesty framework that does not recognize principles of privacy and dignity, there is one positive that can be gleaned from this judgment. It correctly recognized that this was a case of criminal intimidation (IPC 503), commonly known as blackmail, as the perpetrator threatened to send the offending image to the victim’s husband.

2.2.4.2. Vikas Dogra v. State of Himachal Pradesh (2015)⁸Vikas Dogra v. State Of Himachal Pradesh, Cr.M.P(M) No. 125 of 2015, judgment dated 5 February 2015, High Court of Himachal Pradesh, at para 10

This was yet another case where the accused morphed the photograph of a woman’s face onto a nude body. Highlighting the offline-online continuum of violence, the case also allegedly involved the commission of a rape. In its judgment, the court relied on various extraneous factors, such as the fact that the perpetrator and the victim were in a relationship in the past, and the intervening time between the commission of the offense and the victim choosing to approach the court, as mitigating factors to grant bail to the perpetrator. In a particularly regressive statement, the court said:

“It is ultimately the woman herself who is the protector of her own body and therefore, her prime responsibility to ensure that in the relationship, [she] protects her own dignity and modesty. A woman is not expected to throw herself to a man and indulge him promiscuity thereby becoming a source of hilarity. It is for her to maintain her purity, chastity and virtues.”⁹Vikas Dogra v. State Of Himachal Pradesh,  Cr.M.P(M) No. 125 of 2015, judgment dated 5 February 2015, High Court of Himachal Pradesh, at para 10.

This observation highlights the fallout of using the womanly modesty framework, as it can lead to unwarranted scrutiny of the victim’s conduct by the court. It is important for courts to guard against judicial stereotyping,¹⁰Poddar, R. (2021). Gender Stereotyping: Paternalism By Courts Erodes Trust in Judicial Institutions. The Wire. https://thewire.in/law/gender-stereotyping-paternalism-by-courts-erodes-trust-in-judicial-institutions that either sees the woman as in need of protection or as an untrustworthy accomplice. The above observation also goes against the settled judicial position in India that the sexual history of a rape victim is irrelevant in the trial,¹¹Lillu and ors v. State of Haryana, CRIMINAL APPEAL NO. 1226 OF 2011, judgment dated 11 April 2013, Supreme Court of India. and against the mandate of Section 53A of the Indian Evidence Act. Section 53A says in cases of sexual offenses, where the question of consent is in issue, evidence of the character of the victim or of such person's previous sexual experience with any person shall not be relevant in determining the issue.

The creation of morphed images and synthetic media is an area where the law has been playing catch-up with the rapid growth in technological possibilities. However, as morphed imagery and deepfake technology become more easily accessible, these are no longer fringe problems that can be dealt with in the future but are rather urgent and disturbing realities.

In 2019, the United States Congress proposed the Defending Each and Every Person from False Appearances by Keeping Exploitation Subject to Accountability Act, 2019 (Deepfakes Accountability Act), to impose civil and criminal liability upon people who create or share deepfakes without appropriate disclaimers. While concerns have been raised about overbreadth in the definition of offending content,¹²Schapiro, Z. (2020). Deepfakes Accountability Act: Overbroad and Ineffective. Boston College Intellectual Property and Technology Forum. https://lira.bc.edu/work/ns/73aa6d56-3d4b-4176-bf20-446281904b04 the proposed legislation signals a move towards recognizing the seriousness and pervasiveness of the offense.

The Deepfakes Act also revises the criminal offense of fraud in connection with certain identification documents to include deepfakes.¹³DEEP FAKES Accountability Act of 2019. (United States). Recognizing the gendered nature of the offense, the proposed law also provides for assistance to victims of deepfakes, explicitly mentioning “the impact of intimate and sexual deepfakes on women and marginalized communities”.¹⁴DEEP FAKES Accountability Act of 2019. (United States). It is crucial that any law governing morphed imagery takes into account issues of privacy, identity fraud, and digital misrepresentation, as well as the gendered nature of the offense.