Photoshop

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Introduction
Photoshop (colloquially used to mean any digital image or video editing) is no longer merely a creative tool — it is a frequent object and instrument of litigation across criminal, civil, electoral and IP domains in India. Whether a photograph is “morphed” to defame a person, an image is edited to fabricate a document, or a video is altered to mislead a court or the public, courts confront questions of admissibility, authenticity, and culpability. For practitioners, the single most important maxim is: treat digitally edited material as potentially fabricated evidence and preserve the technical trail from source to court.

Core Legal Framework
– Indian Evidence Act, 1872
– Section 65A and Section 65B (as inserted by the Information Technology Act, 2000) regulate admissibility of electronic records. In particular Section 65B(4) provides that where an electronic record is produced for evidence, it shall be accompanied by a certificate identifying the record and describing the manner in which it was produced, the device used, and verifying its integrity (i.e., the person in-charge certifies the condition and operation of the device).
– Indian Penal Code, 1860
– Forgery and using forged documents: Sections 463–477 (making, using and punishment for forged documents) — a digitally manipulated image can amount to “forgery” and “using as genuine” if used to deceive or cause harm.
– Defamation: Sections 499–500 (criminal defamation) — morphed images used to defame can attract criminal liability.
– Other relevant provisions depending on context: Sections dealing with obscenity, intimidation, and offences against women (e.g., voyeurism) may apply.
– Information Technology Act, 2000
– Section 66 (computer-related offences), Section 66C (identity theft), Section 66D (cheating by personation), Section 66E (violation of privacy by capturing/transmitting image of private area), Section 67/67A (publishing obscene electronic material), and Section 72A (punishment for breach of confidentiality).
– Section 79 (intermediary liability and safe harbour): relevant for takedown and intermediary responses.
– Copyright Act, 1957
– Editing a copyrighted photograph without authorization can be an infringement; moral rights (Section 57) protect attribution and integrity (alteration that distorts or mutilates the work may infringe moral rights).
– Civil procedure / injunctive law
– Equitable remedies (interim and permanent injunctions), damages, and declaratory relief are frequently sought in relation to morphed images.

Practical Application and Nuances
How courts and investigating agencies treat “Photoshop” evidence in practice

  1. Terminology and pleading
  2. Use precise language in court papers: “digitally manipulated image” / “morphed photograph” / “altered electronic record” rather than generic trade marks like “Photoshop.” This avoids imprecision and avoids any trademark implications.

  3. Plead both the baseline facts (when, where, who) and the technological indicators (source URL, social media handle, format, filename, timestamps, whether originals are available).

  4. Preservation is everything

  5. Immediate steps: secure and preserve original devices (camera, phone, server), take forensic images (bit-by-bit clone), document chain of custody, and compute cryptographic hashes (SHA-256 preferred).
  6. If the image/video is on a third-party server (social media, messaging apps), issue a preservation/“take down and preserve” notice to the intermediary and apply to the court for preservation/disclosure under Order XXXIII CPC / Section 91 CPC where appropriate.

  7. Failure to preserve originals is the single most common and fatal mistake.

  8. Authentication and admissibility (practical checklist)

  9. Primary vs secondary evidence:
  10. If the original electronic device and file are produced, the court can examine primary electronic evidence (Arjun Panditrao K. Chaskar — see below).
  11. If relying on copies/extracts/printouts, ensure compliance with Section 65B and obtain the requisite certificate attesting to the authenticity and mode of generation of the electronic record.
  12. Expert forensic analysis:
  13. Obtain a digital forensic report from an accredited lab (e.g., CFSL/forensic lab, or National Forensic Sciences University accredited private labs).
  14. For images: examine EXIF metadata, creation/modification timestamps, compression artefacts, layer history (where available), error level analysis (ELA), lighting and shadow inconsistencies, cloning artefacts, and file-carving.
  15. For video/deepfakes: frame-level analysis, audio-video synchronization checks, face-synthesis detection models, and comparison with original footage.
  16. Corroboration:
  17. Seek corroborative evidence: witnesses who recorded or received the original file, logs from messaging apps (e.g., WhatsApp backups with metadata), server logs, or CCTV footage.
  18. Chain of custody and certificate under Section 65B:

  19. Whenever the prosecution or litigant relies on an electronic image as evidence, produce a 65B certificate where the electronic record is presented in the form of printouts or secondary forms. A certificate from the “person in charge” describing the manner of production is conventionally required.

  20. How “Photoshop” becomes criminal or civil wrong

  21. Criminal: A morphed sexual image used to blackmail can invoke sections of the IPC and IT Act (identity theft, cheating, voyeurism, breach of privacy), and can lead to FIRs and prosecution.
  22. Forgery: If a digitally edited image is passed as an original document or used to create official records, charges under forgery provisions (Sections 463–477 IPC) and Section 120B (conspiracy) may follow.
  23. Defamation: Public dissemination of a morphed image intended to harm reputation supports civil suit for defamation (injunction + damages) and/or criminal complaint under Sections 499/500 IPC.
  24. IP infringement and moral rights: Alterations to copyrighted photographs without license may attract claims under the Copyright Act; the artist’s moral right against derogatory treatment (Section 57) is often invoked.

Concrete examples
– Civil: A politician is shown in a morphed photograph engaging in illicit conduct circulated during elections. Remedies: urgent ex parte injunction and takedown orders against the intermediary, forensic report proving manipulation, and damages; seek disclosure of originators and demonstrable nexus to campaign.
– Criminal: A private individual’s intimate images are morphed and circulated to extort money. Remedies: FIR under IPC and IT Act, immediate forensic preservation request to the intermediary, arrest of accused where traced, and relief including injunction and compensation.
– Evidence in trials: A video submitted by police as an extract from a CCTV DVR must be accompanied by forensic certificate and authentication of DVR system (chain of custody), or else it may be excluded per Section 65B jurisprudence.

Landmark Judgments
– Anvar P.V. v. P.K. Basheer & Ors., (2014) 10 SCC 473
– Key principle: Electronic records must be accompanied by a certificate under Section 65B(4) for admissibility. The Supreme Court held that the statutory scheme requires a certificate to prove the genuineness of electronic evidence produced in the form of printouts or secondary evidence.
– Practical impact: Litigants must anticipate the 65B compliance obligation when relying on screenshots, printouts, or extracts of images/videos.
– Arjun Panditrao K. Chaskar v. The State of Maharashtra, (2018) 16 SCC 1
– Key principle: A Constitution Bench clarified the interplay between primary and secondary evidence in electronic records. Where the original electronic device or record is produced and can be directly examined, the certificate under Section 65B may not be necessary in the same way for primary evidence; however, for secondary forms reliance on the statutory certification remains vital.
– Practical impact: If the original device or authoritative server can be produced, counsel can rely on primary evidence and expert examination; where only copies are available, ensure a 65B certificate.
– Shreya Singhal v. Union of India, (2015) 5 SCC 1
– Key takeaway for practitioners: The Supreme Court struck down Section 66A of the IT Act as unconstitutional and emphasised free speech protections online. This decision influences how courts balance takedown requests with fundamental rights and stresses precise pleading where restriction on online speech is sought.

Strategic Considerations for Practitioners
Pre-litigation and immediate steps
– Preserve first, litigate later: Issue preservation notices to intermediaries and custodians; physically seize devices where lawful; take forensic images immediately.
– Avoid relying on public screenshots alone: Arrange for authenticated downloads or obtain server-side logs and data under Section 91 CPC or via formal requests to intermediaries under IT Rules.
– Expert identification before filing: Commission a preliminary forensic report to evaluate whether an image is plausibly original or tampered with — this reduces risk of frivolous suits.

Drafting and proof strategy
– Plead the tech: Explain the forensic indicators and why the copy is not reliable; set out chain-of-custody facts and annex the expert report.
– Reliefs to seek: interim injunction (restraining further circulation), mandatory takedown orders to intermediaries, disclosure orders for originators/IP addresses, expedited forensic examination, and damages.
– Use parallel forums judiciously: Use civil court for injunctions and damages; criminal complaint for immediate protection and criminal deterrence; coordinate both to avoid conflicting orders.

Working with experts and courts
– Use accredited forensic labs; ensure the expert’s credentials and methodology are well-documented and defensible in cross-examination.
– Be ready to explain technical terms in simple language for the court; use annotated exhibits demonstrating inconsistencies.
– If relying on a 65B certificate, ensure the certifying officer is properly identified, the certificate explains the device, time, method of extraction, and integrity checks (hashes).

Pitfalls to avoid
– Missing the 65B certificate when relying on copies — often leads to exclusion of critical electronic evidence.
– Failing to obtain/produce the original device or to create a verified forensic image — destroys credibility.
– Overclaiming technical certainty: Forensics often shows high probability or indicators, not absolute proof; avoid categorical statements unless supported.
– Ignoring intermediary procedures: Under IT Rules 2021 and intermediary guidelines, a bare court order may not be sufficient — follow prescribed channels for takedown and preservation.
– Treating “Photoshop” as a legal category: Courts prefer precise descriptions — “digitally manipulated” with supporting forensic descriptors.

Practical templates and checklists (concise)
– Immediate preservation checklist:
– Photograph and document the device/object.
– Create a bit-by-bit forensic image; compute and record hashes (MD5, SHA-256).
– Record chain-of-custody with signatures and timestamps.
– Send sealed originals to accredited lab; retain copies and proof of dispatch.
– Issue preservation/takedown notice to intermediary; file application to court where urgent relief needed.
– Drafting essentials for an interim injunction:
– Clear description of offending image/video and manner of circulation.
– Facts showing probable manipulation and harm (with preliminary forensic annex).
– Relief sought: ex parte interim injunction, mandatory takedown, disclosure of originators, preservation of evidence, and costs.

Conclusion
“Photoshop” in legal practice is shorthand for digital image/video manipulation — a fact-sensitive, technically demanding, and increasingly litigated area. Success turns on two pillars: (1) early, meticulous preservation and forensic authentication of electronic records, and (2) precise legal framing — invoking the Evidence Act (Sections 65A/65B), relevant criminal provisions and IP/moral-rights claims as the facts dictate. Practitioners must blend technical forensic strategy with sound legal pleading: secure originals, obtain accredited forensic reports, comply with Section 65B when relying on secondary electronic evidence, and tailor remedies (injunctions, takedowns, criminal complaints) to both halt circulation and obtain effective redress.