UNDERSTANDING THE TUSSLE BETWEEN THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION AND PERSONALITY RIGHTS

Introduction

Celebrities, public figures and influencers hold significant influence in our lives. Social media is taken by storm when a married sportsman accidentally likes a picture of a female celebrity other than his wife, invoking extreme but hilarious reactions. Similarly, the stock market is taken by storm when a global athlete denies to drink a certain brand of soft drink, citing health reasons, which plummets the stocks of the soft drink overnight.

But this relationship between celebrities and the audience is not a single-lane road, rather, it is a two-way highway. Common people also hold power in this para-social relationship, as they can engage in various activities such as talking, discussing, obsessing, reporting, reciting, satirising, complaining, or criticising, which can either elevate or damage a public figure’s brand image or popularity.

So, while a public figure may seek to control the information being disseminated about them, society places a high value on the unrestricted flow of speech, expression, and information, leading to conflict between, as a layman would say, the celebrity and the public. For example, a celebrity may object to the use of their name, their intellectual property (IP) in a film, while the filmmaker may seek to use it as a form of creative expression protected under their right to freedom of speech and expression. This illustration highlights how the two rights intersect.

What is the Right to Freedom Of Speech?

Enshrined under Article 19, the fundamental right to freedom of speech and expression empowers individuals to express their opinions and thoughts without the fear of repercussions. It stems from Articles 19(1)(a) and 19(1)(g), i.e. “to freedom of speech and expression”[1] and “to practise any profession, or to carry on any occupation, trade or business”[2] respectively. This right is essential for media, artistic expressions and accountability and includes free speech, writing, audio-visual representation, etc.

In the digital age where communication is not just limited to offline events, freedom of speech and expression online has become quite a significant aspect of this right. However, it is pertinent to note that rights conferred under Article 19 are not absolute and must be balanced against national security, public order, decency, morality and individual dignity.

What are Personality Rights?

Personality rights, aka publicity rights, refer to a bundle of special rights enjoyed by certain individuals due to their overwhelming fame. While personality rights are not expressly mentioned in any statute, courts have recognized these rights through judicial interpretation. Such interpretations are derived from the concept of dignity and privacy under Article 21, and moral and economic rights under the IP laws. Personality rights are often invoked by celebrities to assert control over the commercial and personal use of their identity.

The dual concept of privacy and publicity rights is relatively new, and the jurisprudence on these rights is gradually evolving through judicial interpretations. The right to privacy in India was established as a fundamental right under Article 21 following the landmark judgement of Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)[3].

Taking this as a foundation, the Hon’ble apex court has, in many judgements, recognized the right to publicity as a subset of the right to privacy. The right to publicity gives the owner the right to protect, control and commercially benefit from one’s image. Any breach without consent violates the fundamental right to publicity, by extension, the fundamental right of privacy.

The right to publicity also intersects with IP laws, especially the Copyright Act, 1957 and the Trade Marks Act, 1999. The copyright act protects original ideas in literature, music, art, cinematography, etc. and grants the owner with exclusive right to reproduce, perform or distribute the work. Further into the Act can be found that performers, too, have been given certain rights.

Under Section 38 of the Copyright Act, a performer is given two rights. First, the exclusive rights of performers restrict any person other than the performer from using the performer’s attributes without a written agreement. Second, Section 38B grants moral rights which protect performers from any distortion or mutilation of their performance[4].

An appropriate mention here would be the case of famous actor Jackie Shroff[5], who sued multiple parties over the misuse of his name and persona. One of the defendants in the case was the famous YouTube creator “Thugesh”, who was accused of portraying the plaintiff, Jackie, in a derogatory manner. The plaintiff claimed that the compilation and editing of his interviews by the defendant, depicting “thug life” moments of the actor by adding elements like cigarettes, caps, gold chains — distorted his public image. The case ended up tilting in the favour of defendant Thugesh; however, this became a textbook perfect example of how celebrities can seek relief based on the distortion of their IP.

Public figures can also claim trademark protection to safeguard their IP. Trademark protection of names prevents consumer confusion. It further helps protect the reputation and brand identity of public figures in this age of digitalization and globalization. In consonance with these reasons, celebrities, especially actors, have started registering their common names like “ANIL KAPOOR” to protect their interests[6].

These rights are derived from the “Well Known” concept under the Trade Marks Act. Section 2(m) of the act states that ‘names’ can also be included under the definition of trade mark, which allowed celebrities like Shah Rukh Khan, Amitabh Bachchan, Kajol, Sanjeev Kapoor, among others, to protect their personal brand.

The Conflict: Where the Rights Clash

The clash of interests occurs when parties overextend their claims and try to stretch the grey areas of law to fit within their version of black and white. Understanding the immediate and explosive effect celebrities have, there has been a trend of exploitation of personality by businesses for commercial gains. There have also been instances where celebrities bully news agencies, creators and try to shun their artistic and economic freedom.

The following illustrations depict how rights may clash:

a) Media Coverage vs. Celebrity Control: The media enjoys protection under the freedom of speech and expression, especially reporting the matters of public interest. However, at times this right has been curtailed by the courts to uphold the right to privacy or the right to be forgotten of an individual.

b) Satire, Parody, and Biopics: These creative works often invoke the name or likeness of real-life individuals. Parody comes under the ambit of “fair use”, which is a recognized defence in both the Copyright and Trademarks Act.

c) Advertising and Commercial Exploitation: Commercial exploitation of public figures is strictly prohibited and often results in the plaintiff winning the suit. In DM Entertainment v. Baby Gift House[7], Daler Mehndi won the suit for a permanent injunction where his publicity rights were being used for deceptive endorsement by the defendant.

In the past decade, deepfakes and AI morphed images have further escalated concerns around the misuse of identity. Scammers, even brands, use deepfake videos of celebrities to promote their selfish motives. Famous investor Madhusudan Kela, Infosys founder Narayana Murthy, and late business tycoon Mr. Ratan Tata are a few among many to have faced the wrath of deepfakes.

The emergence of AI has made attribute cloning a much easier task. The colossal technology now enables hyper-realistic replication of a celebrity’s face and voice. This manipulation infringes upon the rights of the celebrity to control their identity for privacy and monetary reasons. As mentioned, deepfakes and cloning are often used to defraud people. These incidents have led not only to civil remedies but, in some cases, also to criminal prosecution.

Balancing the Rights

The Indian judiciary has been shaping the domain of public versus private rights for quite some time now. The issue at hand has also been discussed on multiple occasions in multiple cases. In a free society, the public at large has been given the privilege to use, quote or refer pto ublic figures in their domestic and professional life.

Professions such as journalism are afforded protection to report facts and disseminate information to the public, provided it is done in an unbiased and non-defamatory manner. Likewise, considering that a significant portion of a celebrity’s life is in the public domain, the depiction of widely known facts in satirical works or biopics should not, in itself, be grounds for legal objection. The biopic of Sanjay Dutt, “Sanju”, is a perfect example in this case.

Other defences available to defendants are comment, criticism, fair use and parody. The Kerala High Court laid down factors to classify the work as legal or illegal parody. Factors included: amount and value copied for the criticism, purpose behind the work and the likelihood of competition between the original and copy[8].

Although freedom of speech and expression is essential for criticism or satirical work, these rights are not absolute. In R. Rajagopal v. State of Tamil[9], the Supreme Court emphasized that

i) Right to privacy offers protection against unauthorized invasion, which cannot be condoned.

ii) Sensitive topics require caution when discussing in public

iii) Advancement of technology (AI can be included now) poses a significant risk to public figures. There is a need for stringent safeguards.

Conclusion

Individuals have legal rights to protect their name, persona and property from being defamed and/ or exploited economically. However, this protection is no longer absolute, as societal evolution has led to evolving exceptions.

While it is indisputable that celebrities need protection, more so with the epidemic of AI crimes, courts are also required to balance their interest in controlling the use of their identity against broader public interest and creators’ rights. Technology, especially AI, has stretched the contours of consent, licensing and identity theft. Other jurisdictions have developed legal theories guiding publicity rights. Courts in various states in the United States of America have tried to balance the property interest of celebrities against the public and the creator’s interest in availing free flow of information.

In New York, for example, a concept called “newsworthy” defence has been developed. A newsworthy event is one that affects the public at large. Such an event, if not reported, will impact society. Similarly, protection is given to the photo accompanying a newsworthy story, not a clickbait piece. Films where newsworthy facts have a greater percentage than fiction get the defence of being newsworthy and won’t be taken down or censored.

These developments are bound to influence jurisdictions worldwide, including India. The wheel has been set in motion, and it will be interesting to witness how the judiciary interprets this grey area of law. It is high time for legislators to take cognisance of the matter and issue guidelines to help celebrities protect their rights off the bat.

References

[1] Article 19(1)(a) Constitution of India, 1950

[2] Article 19(1)(g) Constitution of India, 1950

[3] Justice K.S. Puttaswamy (Retd.) v. Union of India 2019 (1) SCC 1

[4] Section 38B of the Copyright Act, 1957

[5] Jaikishan Kakubhai Saraf Alias Jackie Shroff v. The Peppy Store & Ors., CS(COMM) 389/2024

[6] Anil Kapoor v. Simply Life India CS(COMM) 652/2023

[7] DM Entertainment v. Baby Gift House CS(OS) 893/2002

[8] Civic Chandran and Ors v. Ammini Amma and Ors (1996) 1 KLJ 454

[9] R. Rajagopal v. State of Tamil Nadu 1995 AIR 264