{"id":270,"date":"2023-08-09T06:04:22","date_gmt":"2023-08-09T06:04:22","guid":{"rendered":"https:\/\/projects-dev.itforchange.net\/online-violence-gender-and-law-guide\/?page_id=270"},"modified":"2024-10-29T12:09:59","modified_gmt":"2024-10-29T06:39:59","slug":"2-2-morphing-deepfakes","status":"publish","type":"page","link":"https:\/\/projects.itforchange.net\/online-violence-gender-and-law-guide\/module-2-typologies-of-online-gender-based-offenses-in-law\/2-2-morphing-deepfakes\/","title":{"rendered":"2.2 Morphing\/Deepfakes"},"content":{"rendered":"
Navigate:Online Gender-based Violence Judicial Resource Guide<\/span><\/a><\/span><\/div><\/div><\/div><\/div><\/div><\/div>
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2.2.1 What is morphing?<\/h3>\n
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Morphing is a very specific form of digital sexual violence involving transmogrifying or splicing photos or videos (for example, using deepfake applications to morph the head of a victim onto another image), and uploading them, including on pornographic websites.1<\/a><\/sup>UN Women. (2020). Online Violence against Women In Asia: A Multicountry Study<\/em>. https:\/\/asiapacific.unwomen.org\/sites\/default\/files\/Field%20Office%20ESEAsia\/Docs\/Publications\/2020\/12\/ap-ICT-VAWG-report-7Dec20.pdf<\/a> <\/span> The digital morphing of an image, as a way of attacking women, is a relatively new form of gendered violence. Its prominence has increased as Artificial Intelligence (AI) capabilities have become more sophisticated and easily available to the general public. Through deepfake technology, a person\u2019s face can be superimposed onto the body of another, with eerily realistic and convincing results.<\/p>\n

Research carried out by Sensity AI on the use of deepfakes shows that an overwhelming majority are sexual in nature, featuring women who did not consent to appear in these videos.2<\/a><\/sup>Sensity. (2010). Deepfake Detection For Forensic Analysis<\/em>. https:\/\/sensity.ai\/blog\/deepfake-detection\/deepfake-detection-forensic-analysis\/<\/a><\/span> Although morphed images and other forms of synthetic media are used in many contexts, most notably to peddle false narratives in the field of politics, we limit our analysis here to the use of this technology as an instrument of gendered violence. Digitally morphed images that superimpose faces or other identifying features into pornographic media are frequently used to attack and shame women.3<\/a><\/sup>Ayubb, R. (2018). I Was The Victim Of A Deepfake Porn Plot Intended To Silence Me.<\/em> Huffington Post. https:\/\/www.huffingtonpost.co.uk\/entry\/deepfake-porn_uk_5bf2c126e4b0f32bd58ba316<\/a><\/span><\/p>\n

The offense tends to co-occur with doxxing, blackmail, and the creation of fake profiles or impersonation. It is also used as a weapon to target prominent women in the public sphere, including celebrities, journalists, and human rights defenders.<\/p>\n

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2.2.2 What is a gender-sensitive way to read a case of morphed images\/videos?<\/h3>\n
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The creation of a morphed image or video results in a range of overlapping violations. Chief among them is the violation of the victim\u2019s 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).<\/p>\n<\/div>\n<\/div><\/div><\/div>

2.2.3 Which laws are applicable?<\/h3>\n
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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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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\u2019s 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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

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Under the IPC, the offense of forgery is defined under Section 436. However, in the BNS, it is an offense under Section 336. Section 336 of the BNS is more consolidated, and includes some aspects of the offense of cheating too, both in physical and electronic format. Forgery is the act of creating a false document or electronic record with the intent to cause harm, deceive others, or support fraudulent claims. It can involve manipulating documents to cause someone to part with property, enter into a contract, or damage someone's reputation. The intent behind forgery may include causing financial loss, gaining an illegitimate advantage, or misleading others for personal gain.<\/span><\/p>\n

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Under the IPC, the crime of criminal intimidation and its punishment are provided under Sections 503 and 506, respectively. Further, criminal intimidation through an anonymous source is punishable under Section 507. These sections are consolidated under the BNS into one provision, Section 351, and are dealt with under different sub-sections. Section 351(1) of the BNS corresponds to Section 503 of the IPC, Section 351 (2) of the BNS corresponds to Section 506 of the IPC and Section 351(3) of the BNS corresponds to Section 507 of the IPC. These Sections discuss the offense of criminal intimidation which occurs when someone threatens another with harm to their person, reputation, or property, intending to cause alarm or compel them to act against their legal rights or duties.<\/span><\/p>\n\t\t\t\t<\/div>\n\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t

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Under the IPC, the definition of criminal defamation and its punishment are provided in Sections 499 and 500, respectively. However, in the BNS, these sections are consolidated into one provision:\u00a0 Section 356. The elements of the offense have not been changed in the BNS provision. The Section discusses the harm caused by publication, verbalization, or other forms of offensive material that is false, defamatory, and causes harm to the reputation of a person. The main difference between the two laws is that in the BNS, community service has been added as an alternative punishment along with imprisonment and fines.<\/span><\/p>\n\t\t\t\t<\/div>\n\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t

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  1. Section 336 of the BNS (Forgery):\u00a0 <\/b>Under the IPC, the offense of forgery is defined under Section 436. However, in the BNS, it is an offense under Section 336. Section 336 of the BNS is more consolidated, and includes some aspects of the offense of cheating too, both in physical and electronic format. Forgery is the act of creating a false document or electronic record with the intent to cause harm, deceive others, or support fraudulent claims. It can involve manipulating documents to cause someone to part with property, enter into a contract, or damage someone's reputation. The intent behind forgery may include causing financial loss, gaining an illegitimate advantage, or misleading others for personal gain.<\/span><\/li>\n
  2. Section 351 of the BNS (Criminal Intimidation):<\/b> Under the IPC, the crime of criminal intimidation and its punishment are provided under Sections 503 and 506, respectively. Further, criminal intimidation through an anonymous source is punishable under Section 507. These sections are consolidated under the BNS into one provision, Section 351, and are dealt with under different sub-sections. Section 351(1) of the BNS corresponds to Section 503 of the IPC, Section 351 (2) of the BNS corresponds to Section 506 of the IPC and Section 351(3) of the BNS corresponds to Section 507 of the IPC. These Sections discuss the offense of criminal intimidation which occurs when someone threatens another with harm to their person, reputation, or property, intending to cause alarm or compel them to act against their legal rights or duties.<\/span><\/li>\n
  3. Section 356 of the BNS (Defamation): <\/b>Under the IPC, the definition of criminal defamation and its punishment are provided in Sections 499 and 500, respectively. However, in the BNS, these sections are consolidated into one provision:\u00a0 Section 356. The elements of the offense have not been changed in the BNS provision. The Section discusses the harm caused by publication, verbalization, or other forms of offensive material that is false, defamatory, and causes harm to the reputation of a person. The main difference between the two laws is that in the BNS, community service has been added as an alternative punishment along with imprisonment and fines.<\/span><\/li>\n<\/ol>\n\t\t\t\t<\/div>\n\t\t\t<\/div>\n\t\t<\/div>\n\t\t<\/div>\n<\/div>\n<\/div><\/div>

    2.2.4 How have courts dealt with cases of morphed images\/videos?<\/h3>\n
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    2.2.4.1 State v. Madachirayil Gopinathan Suni (2018)<\/em>4<\/a><\/sup>State v. <\/em>Madachirayil Gopinathan Suni, CNR no. DLCT02-000212-2005, judgment dated 31 August 2018, Delhi District Court, at para 28. <\/span><\/h4>\n

    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.<\/p>\n

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

    \u201cThe 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.\u201d5<\/a><\/sup>State v. Madachirayil Gopinathan Suni, <\/em>CNR no. DLCT02-000212-2005, judgment dated 31 August 2018, Delhi District Court, at para 28.<\/span><\/p>\n

    The court also convicted the accused under Section 67 of the IT Act (transmission of obscene material) based on the following reasoning:<\/p>\n

    \u201cIt 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.\u201d6<\/a><\/sup>State v. Madachirayil Gopinathan Suni, <\/em>CNR no. DLCT02-000212-2005, judgment dated 31 August 2018, Delhi District Court, at para 25.<\/em><\/span><\/p>\n

    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 \u201coutraging modesty\u201d and \u201cinsulting\u201d women, the legal definitions of such crimes give the impression that they merely offend<\/i> women, while diluting the harrowing experience of harassment as an act of violation<\/i>. While invoking \u201coutraging the modesty of a woman\u201d under Section 509, courts should be cognizant that the narrative of womanly modesty is centered around anxieties surrounding a woman\u2019s sexuality. This, in turn, ends up promoting the idea of regulating a woman\u2019s behavior<\/i> instead of upholding her rights.7<\/a><\/sup>Tewari, A. (2017). My Modesty Is Not Outraged, I Am! Patriarchy In The Language Of Law.<\/em> Feminism in India. https:\/\/feminisminindia.com\/2017\/08\/28\/modesty-outraged-patriarchy-law\/<\/a><\/span> 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\u2019s conduct and deny her remedy.<\/p>\n

    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\u2019s 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\u2019s 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\u2019s 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.<\/p>\n

    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\u2019s 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\u2019s husband.<\/p>\n

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    2.2.4.2. Vikas Dogra v. State of Himachal Pradesh (2015)<\/em>8<\/a><\/sup>Vikas Dogra v. State Of Himachal Pradesh,<\/em> Cr.M.P(M) No. 125 of 2015, judgment dated 5 February 2015, High Court of Himachal Pradesh, at para 10 <\/span><\/h4>\n

    This was yet another case where the accused morphed the photograph of a woman\u2019s 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:<\/p>\n

    \u201cIt 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.\u201d9<\/a><\/sup>Vikas Dogra v. State Of Himachal Pradesh<\/em>,\u00a0 Cr.M.P(M) No. 125 of 2015, judgment dated 5 February 2015, High Court of Himachal Pradesh, at para 10.<\/span><\/p>\n

    This observation highlights the fallout of using the womanly modesty<\/i> framework, as it can lead to unwarranted scrutiny of the victim\u2019s conduct by the court. It is important for courts to guard against judicial stereotyping,10<\/a><\/sup>Poddar, R. (2021). Gender Stereotyping: Paternalism By Courts Erodes Trust in Judicial Institutions.<\/em> The Wire. https:\/\/thewire.in\/law\/gender-stereotyping-paternalism-by-courts-erodes-trust-in-judicial-institutions<\/a><\/span> 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,11<\/a><\/sup>Lillu and ors v. State of Haryana, <\/em>CRIMINAL APPEAL NO. 1226 OF 2011, judgment dated 11 April 2013, Supreme Court of India. <\/span> 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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

    2.2.5 How have other jurisdictions dealt with cases of morphed images?<\/h3>\n
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    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.<\/p>\n

    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),<\/i> 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,12<\/a><\/sup>Schapiro, Z. (2020). Deepfakes Accountability Act: Overbroad and Ineffective. Boston College Intellectual Property and Technology Forum<\/em>. https:\/\/lira.bc.edu\/work\/ns\/73aa6d56-3d4b-4176-bf20-446281904b04<\/a> <\/span> the proposed legislation signals a move towards recognizing the seriousness and pervasiveness of the offense.<\/p>\n

    The Deepfakes Act also revises the criminal offense of fraud in connection with certain identification documents to include deepfakes.13<\/a><\/sup>DEEP FAKES Accountability Act of 2019. (United States).<\/span> Recognizing the gendered nature of the offense, the proposed law also provides for assistance to victims of deepfakes, explicitly mentioning \u201cthe impact of intimate and sexual deepfakes on women and marginalized communities\u201d.14<\/a><\/sup>DEEP FAKES Accountability Act of 2019. (United States).<\/span> 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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

    Footnotes<\/h3>\n
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