Can't Devise Policy Amid Elections: Delhi High Court On Curbing Deepfakes

The Delhi High Court today reposed its trust in the Election Commission of India (ECI) to deal with deepfake technologies being used in the Lok Sabha poll campaign, saying it cannot devise a policy in the middle of elections.

The high court directed a lawyers' organisation to give a representation to the ECI on its plea seeking directions to the poll panel for the formulation of guidelines to prevent deepfake videos.

The court also asked the ECI to expeditiously decide by May 6 the representation to be given by the petitioner, keeping in mind the urgency of the issue involved.

A bench of Acting Chief Justice Manmohan and Justice Manmeet PS Arora disposed of the petition, saying it cannot devise a policy in the middle of elections.

The court said only the methodology has changed since rumours were spread about politicians earlier as well. To this, the petitioner's counsel said that deepfake content is a lot more vicious and faster.

The court said it trusts the ECI, which is a constitutional body, to act on the matter.

"We can't devise a policy today in the midst of elections. Once it is entrusted with the ECI, the court's interdiction at this stage will not be proper. At this moment, the courts will not give any direction. You'll have to live with it. All of this is to be done before the elections. At the 11th hour, courts cannot interfere," the bench said.

"At this moment it will not be proper for the court to intervene with the jurisdiction of the ECI. Let us trust the ECI," it said.

The court was hearing a plea by Lawyer's Voice, an organisation seeking directions to the ECI to formulate and implement the necessary guidelines and/or executive action which was necessary to address the public harm and democratic crisis caused by the pervasive use of deepfake technologies in the 2024 election campaign.

The plea also sought direction to several social media platforms to take down and block deepfake content or those concerning political candidates or public figures on their respective platforms until the declaration of poll results.

During the hearing, the counsel for the ECI submitted that in case a comprehensive representation is filed by the petitioner with the commission, it will be decided in accordance with the law on or before May 6 and that any appropriate steps that have to be taken shall also be taken by them.

The ECI counsel also informed the court that the deepfake videos of Home Minister Amit Shah, Congress leader Rahul Gandhi, actors Aamir Khan and Ranveer Singh, as referred to in the petition, have been taken down and criminal complaints have been filed and the accounts from which the videos were posted have been disabled.

To this, the bench said that the accounts that are repeatedly posting fake videos must be acted against and their names should also be put in the public domain.

Senior advocate Jayant Mehta, representing the petitioner, said there is a regulatory framework but there is a huge gap in it, that the 24-hour time period as stipulated under the legal regime for taking action against the infringing content is too long, and that the ECI must instruct the social media intermediaries to ensure that the deepfake content is not replicated.

He said ECI certifies any political advertisement meant for print and electronic media and a similar mechanism should be put in place for the content on social media as well.

The bench responded that it may be difficult as during elections, politicians interact with people on streets or ‘mohallas' as well and sometimes give impromptu speeches.

“The suggestion you are making may not be appropriate. It is like saying when politicians go to address a political rally, they must get permission from ECI. If you are travelling in the constituency obviously, a small group will stop you and you will speak to them and then you start giving an impromptu speech,” it said.

The plea said widespread and unregulated use of deepfake technologies has resulted in violation of various fundamental and constitutional rights, predominantly the right to privacy and to control the usage of one's persona on the part of the political candidates or public leaders and the right of the general public to know correct facts.

“While it may not be possible to control access to such technology, however, it is imperative that the respondent Nos. 1 to 3 (Central government and ECI) immediately device and put in place a regulatory framework that is swift and effective, given the nature of the social media and the speed at which any misinformation can be spread,” it said.

The petitioner said there is a grave urgency attached to the reliefs claimed in the plea, as five out of seven phases of the General Elections 2024 are pending completion, and more than 300 constituencies are presently being affected and prejudiced by the failure of ECI to address the proliferation of deepfake content.

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