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Supreme Court Justice Hima Kohli Flags Concerns with Deep Fakes: Report

The “invisible” virtual harassment that could take place through deep fakes could hinder efforts to mitigate the consequences of harmful content online, Justice Kohli said at an event.

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Following the Prime Minister’s, a Bollywood actress’s, and the IT Ministry’s concerns over the prevalence of deep fakes online, Supreme Court Justice Hima Kohli is the latest to flag issues with the emerging technology, PTI reported.

Speaking at an event last week, Justice Kohli observed that deep fakes are a “cause of deep concern”, and can lead to privacy invasion, propagate misinformation, and create security risks. Of particular concern is that deep fakes are indistinguishable from “reality”, and could lead to misinformation being spread even if it “appears to come from trusted sources”.

Justice Kohli added that this larger shift towards the digital world could worsen gender-based harassment, with digital platforms enabling the rapid spread of misinformation by “faceless perpetrators” acting with “worrying impunity.” This “invisible” virtual harassment could hinder efforts to mitigate the consequences of harmful content online. Batting for holistic policy design to address these issues, Justice Kohli added that existing legal structures (like sexual harassment prevention laws) could also be adapted to keep up with these technological advancements.

The larger context: Following the Prime Minister’s concerns over viewing a deep fake of him dancing garba (a Gujarati dance form) the IT Ministry has been quick to push for regulating the technology, with the Union Minister for IT Ashwini Vaishnaw recently announcing that rules would be developed by early December. The rules may also reportedly apply to deep fakes created outside India but used within it, and penalties will be imposed on the creators or uploaders of the content, as well as the platform hosting it. The IT Ministry may also hold a public consultation on the rules.

Additionally, both Vaishnaw and the Minister of State for IT Rajeev Chandrasekhar have been clear that platforms failing to take down deep fakes will lose their safe harbour protections under Indian law. Safe harbour protects platforms from being held liable for third-party content they host, provided that they comply with Indian laws. For example, under India’s platform regulation laws, the IT Rules, 2021, platforms have to “cause users” not to transmit certain kinds of prohibited content, or risk losing their safe harbour protections. This includes content invading bodily privacy, intentionally communicating misinformation, impersonating another, and more. Chandrasekhar also recently requested social media companies to modify their terms and conditions to inform users not to publish deep fakes online.

However, despite the serious misinformation concerns deep fakes pose to India’s people and democracy, stripping platforms of safe harbour for failing to take them down could also hurt free speech online. As we’ve previously noted:

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“In India, the construct of safe harbour under the IT Act, which shields platforms from being held liable for third-party content, stands threatened by the rise of deep fakes. Altering this act to hold platforms accountable for user content could lead to mass censorship. This would severely impact the democratic nature of the internet and could potentially stifle platforms that host largely harmless, educational content.”

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