The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognized. The Supreme Court of India while recognising Right to Privacy as a fundamental right in Justice K.S Puttaswamy (Retd.) v. Union of India was of the view that right to privacy is a pre- constitutional right, which has been preserved and recognized by the Constitution of India, not created by it.
The personality rights of a celebrity are much of civil law origin that got its cradle in France and Germany.[i]Others perceive a person in a peculiar way depending upon his/her occupation, social status, fashion and other endeavors of life. These endeavors are considered as an extension of their personality. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality received legal recognition.”[ii]
The celebrity rights got its inception from the concept of privacy, as was put forward by Samuel Warren and Louis Brandeis, argued that the basic concept of personal freedom extended to all persons the right to be let alone.[iii] The celebrities often face situations where their celebrity personality eclipses their real selves. World-renowned celebrities would have every moment of their lives open to media and public scrutiny and thus arises a need for modicum of privacy for celebrities as fundamental human requirement as argued by David Tan in his paper “Beyond Trademark Law: What the right of Publicity can learn from Cultural Studies”.
The intrusions of media into the personal space of people close to the celebrities has even extended the loss of privacy to these celebrity individuals. The right of publicity is the right to control uses of one’s identity that protects the commercial value of the celebrity personality; broadly defined as the “inherent right of every human being to control the commercial use of his or her identity.”[iv] It prevents the unauthorized commercial use of an individual’s identity, giving a celebrity the exclusive right to license the use of his or her identity for commercial promotion.
However, the issue of whether the said celebrity rights and privacy rights extend towards an individual posthumously or not has always been a fairly unsettled issue.
But recently, there have been various judgements which have tend to streamline this issue and have largely settled the position of law qua this particular aspect. In the case of Deepa Jayakumar v. A.L. Vijay & Ors., where the division bench ruled that the “posthumous right to privacy is not an alienable one as the right of privacy of an individual”, extinguishes with his or her death and cannot be inherited by a person’s legal heir after his or her death. (Refer to my article for the detailed analysis of this case here).
The Sushant Singh Case
Thereafter, the Delhi High Court encountered another similar incident where the posthumous availability of the celebrity rights was put into consideration in the case of Krishna Kishore Singh vs. Sarla A Saraogi.
The father of the famous celebrity Sushant Singh Rajput being the Plaintiff instituted a suit against maker of the movie Nyay: The Justice allegedly based on the life of the late actor. The suit was by way of a quia timet action and was predicated on information stated to have been received by the plaintiff to the effect that Defendants 1 and 2 were in the process of producing, and Defendant 3 in the process of directing, a movie based on the life of SSR, without taking the permission of any of his legal representatives, including the plaintiff. The plaintiff contended that SSR did not leave, behind him, any Class I heir and that the plaintiff was the sole surviving legal heir in Category I of the Class 2 legal heirs of SSR. The suit sought a decree of permanent injunction, restraining the defendants and all others from using SSR‘s name, caricature or lifestyle in any projects or films without the prior permission of the plaintiff, alleging that any such effort would infringe the personality rights of SSR and also cause deception in the minds of the public, which would amount to passing off. Additionally, costs and damages were also sought.
The Plaintiff had also sought an interim injunction against the makers from releasing the subject movie. The said plea for interim stay was dismissed vide judgement of Sanjeev Narula, J. dated 10.06.2021. (Refer to my article for the detailed analysis of this case here).
That recently, the Delhi high Court in the same case but in a different IA has held that ‘Publicity And Privacy Rights Not Heritable’ and refused to injunct further telecast of the movie “Nyay: The Justice” released on OTT platform Lapalap in June 2021.
Background of the fresh plea of an interim stay in this matter is summarised below:
- While dismissing the earlier IA 5697/2021 vide order dated 10.06.2021, Justice Narula in para 43 of the said judgement while refusing stay back then to the Plaintiff had emphasised the fact the said IA was sought on qua timet basis prior to the release of the movie and the Plaintiff can always re-apply at a later juncture for injunction, if there is a change in circumstances after the release of the said film.
- Aggrieved by the aforesaid judgment, the plaintiff appealed before the Division Bench by way of FAO (OS) (COMM) 88/2021, which was disposed of, vide the order dated 26 July 2021.
- By the time the Division Bench came to pass the said order, the film ―Nyay : The Justice, was in existence and could be viewed on the OTT Platform http://lapalaporiginal.com/ (The Lapalap platform). The Division Bench, therefore, granted liberty, to the plaintiff, to press his claims, in terms of para 43 of Justice Narula’s Judgement.
- In view of the order of the Division Bench and in consonance with Para 43 of the order of the Single Judge, the Plaintiff amended its Plaint after the release of the movie and filed a fresh application under Order XXXIX Rule 1 and 2 seeking interlocutory injunction against continued streaming of the film by the defendants.
Amendment of Plaint in view of Para 43 of previous Judgement
That the Plaintiff in its application under Order VI Rule 17 had sought amendments to the plaint, which have been effected after the film had been released, specifically alleging that the film is based on unverified and unauthenticated news reports, many of which were defamatory to SSR, without verifying either their truth or their authenticity. As such, specific allegations of damage to the reputation of SSR were also incorporated in the amended plaint. It was also alleged that several parts of the film are salacious and promiscuous and portray SSR in a negative light. These allegations were in addition, and de hors, the contention that no one could have publicised the life of SSR, or made any film based on his life, without obtaining prior permission of the plaintiff.
In view of the release of the film on the Lapalap platform and also keeping in view of Para 43 of the earlier judgement, the said application for the Plaintiff seeking amendment of Plaint was allowed by order dated 30.05.2022.
Thus, the issue for grant of stay of the movie was to be reconsidered by this Hon’ble Court in view of the amendments. Justice Harishankar while adjudicating the issue of stay had to first determine as to the Extent to which the judgment dated 10 June 2021 of the learned Single Judge in IA 5697/2021 would be required to be taken into account.
The Ld. Judge opined that, in examining the fresh application for interim injunction, this Bench cannot regard itself as bound by the observations and findings of Narula, J., but would have to proceed on the basis that it has before it, a tabula rasa since there were fundamental differences between the grievance of the plaintiff in the original plaint and in the amended plaint. The original plaint was predicated on a mere apprehension, with no film having been released till then. Quite obviously, therefore, no claim of defamation could have been raised by the plaintiff back then and now in the present context after the allegedly tortious act is committed. It would be fundamentally erroneous, therefore, for this Bench to proceed on the basis of findings and observations returned by Narula, J., while examining the quia timet injunction application of the plaintiff when the film had not yet been released.
Judgement on Merits
In a detailed 68 page judgement, the Hon’ble Judge has very beautifully put the issue of Posthumous privacy and celebrity rights to bed.
The court first examined whether the movie was actually based on the life of Sushant Singh or is merely of generalised version of struggling actors in Bollywood.
After examining the story of the movie and the screenplay in great detail, the court came to the conclusion that the stand adopted by the defendants, of the impugned movie being a generalised version of struggling actors in the Bollywood industry, and merely inspiration from news items, is ex facie misleading. The story of the film is practically a day by day story of the life of SSR, as was made known through articles in the press and in magazines. Hardly any independent inventive input had gone into the movie.
The court also examined the claim of the defendants qua the aspect that a disclaimer is inserted in the movie disclaiming any connection or relationship between what is shown in the film and real-life, or between any character in the movie and any flesh and blood person.
The Court examined the question of law whether prominent disclaimers claiming no association with real life characters negate any plea, by anyone, of the impugned movie being related to any person?
The Court held that “disclaimers may be genuine, or cosmetic. While viewing the disclaimer, and its value and worth, the Court has to examine the matter with an approach somewhat different from the lay, and possibly uninterested, viewer. To my mind, it is obvious that a disclaimer which, when seen in the backdrop of the movie itself, is plainly untrue, is worth tinsel. It is, rather, an unscrupulous attempt at pulling wool over the eyes, not only of the viewing public, but also of any other authority – such as this Court in the present case – before whom an occasion to compare the movie with true life, comes up for consideration”.
Thus, outlining the importance of genuine disclaimers.
Right to privacy, Publicity and Personality Rights
Qua the aspect of the Right to Privacy, publicity and personality rights, the court examined and analysed the position of law with all the available material and landmark case laws in great detail and developed the jurisprudence to this aspect in great detail.
The table below highlights some of the key judgements and their ratios deliberated upon by the court:
| Titan Industries Ltd. v. M/s. Ramkumar Jewellers | A celebrity is defined as a famous or a well-known person. A “celebrity” is merely a person who “many” people talk about or know about. When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control commercial use of human identity is the right to publicity. |
| ICC Development (International) Ltd. v. Arvee Enterprises and Ors | Any effort to take away the right of publicity from the individuals, to the organiser {non-human entity} of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of Publicity vests in an individual and he alone is entitled to profit from it. |
| Khushwant Singh v. Maneka Gandhi | Impugned content based on prior published material, available in the press and in magazines, which, at that time, the plaintiff had not chosen to impugn or challenge, the plaintiff was estopped from seeking an injunction against publication on such publicly available material. Though this would not, however, operate as a restraint on the defendant suing the plaintiff for damages, on the same cause. |
| Deepa Jayakumar v. A.L. Vijay
|
That the reputation of a person, as well as personality rights, as well as the right to privacy which emerge as its sequelae, are not heritable, and stand extinguished with the extinguishing of the person concerned; |
| R. Rajagopal v. State of Tamil Nadu | Once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. |
THE PRINCIPLES ENUMERATED AND EMANCIPATING FROM THE JUDGEMENT ARE AS UNDER:
- If a person‘s name or likeness is used, without his consent, for any purpose, or his life story is written or published without his consent, the person‘s right to privacy is violated.
- In such an event, the remedy with the person is to sue for damages, and not to seek injunction of the offending publication. This position would continue to apply even if the offending publication was defamatory in nature.
- This right to privacy cannot be canvassed by one person, on behalf of another, without due authorization.
- If the publication is based on public records, including Court records, however, there is no invasion of the right to privacy.
- No action for damages on the ground of violation of the right to privacy can be maintained by public officials, or public figures, even if the publication is untrue, unless it is made with reckless disregard for truth. All that the person publishing the publication, be it a member of the press or the media, has to show is that he had reasonably verified the facts.
- This defence would not, however, be available if the article, or publication, is actuated by malice or personal animosity.
- The plaintiff‘s right to sue for damages would, nonetheless, continue to subsist even in such a case.
Examining the eventual situation
The Court held that relief being sought by the Plaintiff were entirely with respect to SSR. The rights that the prayers in the suit seek to protect and the rights of privacy, publicity and personality only and only vested in SSR. No relief, qua any right which vests in his father, the plaintiff at hand.
The Court also concluded that the right to Privacy and Right to Publicity are not heritable and do not survive for espousal.
The information contained, and shown, in the impugned film, is entirely derived from items which featured in the media and, therefore, constitute publicly available information and therefore there is no requirement to obtain consent from the father of the late actor.
The remedy with the plaintiff, if any, would not be to seek an interdiction against further transmission or telecast of the film, but to claim damages.
Nothing as such as “Celebrity Rights”
That said, the court had additionally opined that the concept of “celebrity right” holds no value. The court held that no judicial authority, having binding precedential value lends judicial recognition to ―celebrity rights. Justice Harishankar further went to opine that the concept of “Celebrity Rights” does not appear permissible, in our constitutional scheme, which guarantees equality to individuals, and in which equality is a cherished preambular goal, to countenance an ―extra bundle of rights which would be available for enjoyment only to celebrities.
The Court however held that the said “Celebrity Rights” is merely a sub-species of personality rights.
CONCLUSION
The Delhi Hight Court through this order has opened a gateway of opportunities for film makers thereby protecting the freedom of expression since it is a liberty guaranteed through our constitution. Enumerating the importance of the free flow of art and cinema, Article 19 (1) (a) of the Constitution of India is not conditioned/restricted on the premise that a film maker must only portray one particular version of facts. Therefore, there is no obligation on the part of the respondents/defendants to take prior consent from the appellant/plaintiff.
The ruling of this order will have great significance in developing Indian jurisprudence towards the personality rights in post mortem context. This Judgement has resolved the issue qua posthumous right to privacy at rest but it’s interplay with Defamation would be interesting to see in times to come.
Also at the same time, as technology’s importance and requirement in commonplace continues to expand, courts should acknowledge the veracities of modern technology and its bearing on the survival of personal information beyond death when evaluating these cases. There will always arises a need to reanalyse the nature and degree of protection for privacy and its close but conflicting tune with the freedom of expression.
End notes:
[i] “Personality Rights -A Civil Law Concept”, 50 Loy.L.Rev. 349 (2004).
[ii] P.J. Fitzgerald, Salmond on Jurisprudence 298 (Universal Law Publishing, Delhi, 2002).
[iii] Louis D. Brandeis and Samuel D. Warren, “The Right to Privacy”, 4 HLR 193 (1890).
[iv] Lerman v. Flynt Distrib. Co., 745 F.2d 123, 127-30, 134 (2d Cir. 1984); see also Melville B. Nimmer, “The Right of Publicity”, 19 L&CP 203 (1954).
Image source: here
