Challenges to Admissibility and Reliability of Electronic Evidence in India in the Age of ‘Deepfakes’

If any electronic evidence, in the form of videos or images, is produced before the court, judges automatically attach a lot of probative weight to such electronic evidence. With the advancement of technological capabilities of AI that produces Deepfakes, this standard rule might or rather should change over a period of time. ‘Deepfakes’ is a sophisticated form of technology that enables people to create fabricated videos of real people and make them say and do things that they never said or did. With its advent in 2017, Deepfake technology is taking long strides and has reached a point where it will be difficult for the naked eye to identify minute signs that the image or video is doctored and not real. This is a cause for worry for every stakeholder who is involved with the justice delivery system in India as it will be difficult to conclude the authenticity of the electronic form of evidence produced by parties to the suit. India follows an adversarial system of justice, and the Indian Evidence Act, in both civil and criminal cases, serves as a final gatekeeper to funnel relevant and authentic evidence. This paper attempts to explore the potential impact of deepfakes in the courtroom. The paper discusses why and how deepfakes pose a new and unique threat to the justice delivery system and tries to analyse whether Indian legislations such as ‘Indian Evidence Act’ and ‘Information Technology Act’ are tailored to cope with ‘deepfakes’ as a new frontier of false evidence or not. The article also analyses the responsibility of ‘Examiner of Electronic Evidence’ as an Expert to identify fake content in any digital media and give an expert opinion under Sect. 45A of the Indian Evidence Act.