Courting Controversy: Balancing the curious case(s) of...

This article is not about the curious case of Benjamin Button, the academy award winning movie where Brad Pitt was fictionally diagnosed with a rare genetic reverse ageing disorder. It is about the curious case of the surge in personality rights litigation which have been coming up before the High Court of Delhi and the High Court of Bombay. 

One might be forgiven for thinking that with the spate of litigation, obtaining a court order protecting one’s persona has become a legal blue tick or a rite of passage to an eternal status. But the real cause of this surge in litigation appears to be an acceleration in the misuse of personality rights, a catalyst for which is artificial intelligence that allows for deepfakes, voice cloning, misleading advertisements and fabricated videos that have blurred the line between reality and fiction.

To those who may not be in the loop, suits related to personality rights are primarily rooted in the right to privacy, emanating from the ability of an individual to not only protect one’s identity, image, voice, likeness and gestures, but also contact details. The advent of technology often makes it difficult to discern whether one is watching a genuine endorsement or a Black Mirror episode, because technologies enable the large-scale and low-cost replication of an individual’s likeness, voice, and mannerisms, amplifying the risks of misappropriation and reputational harm. Personality rights protection, therefore, needs to go beyond the confines of traditional forms of image misuse to address the challenges posed by synthetic media and algorithmic impersonation.

The rise in such cases have not only involved actors and directors but, more recently, professionals such as doctors, journalists and even lawyers. There is a diverse range of individuals now approaching courts to safeguard their personality rights. This expanding category of plaintiffs inevitably leads to a larger inquiry about who is entitled to personality rights and how far such protection can legitimately extend.

On the first point, the Delhi High Court has clarified that “rights which emanate from one's personality, and persona, would be available to one and all, and not only to celebrities”. However, in practice, the ability to be granted protection hinges on establishing a degree of public recognition. Such public recognition is not to be confused with celebrity status enjoyed by entertainers, sports persons and politicians who have public lives, but also other professionals. For example, while a certain section of society may be aware about the leading cardiac surgeon, Dr Devi Prasad Shetty, it would be fair to say that his popularity is unlikely to be similar to Bollywood actors like Aishwarya Rai and Anil Kapoor, who have obtained similar relief. The basis, however, for extending such relief to other professionals lies in demonstrating an element of public interest, particularly where protection is necessary to prevent people from being deceived for illicit commercial gains.

It is the second point which needs appropriate balancing. While personality right claims are based on the privacy law or tort law regimes read in conjunction with the Trade Marks Act, 1999 and the Copyright Act, 1957, they need to be counterbalanced with the freedom of speech and expression. For example, in granting Jackie Shroff personality rights, the Delhi High Court did not restrain the dissemination of a parody-style Youtube video, recognising such video as a form of protected artistic expression. At the same time, the Court granted injunctions against other defendants for misappropriating Jackie Shroff’s name (including other sobriquets such as Jaggu Dada), voice or image without his consent.

When such rights come into conflict with free speech or artistic creativity, the balance must tilt in favour of constitutional freedoms. Personality rights must operate as a shield against commercial misuse and not a sword to entrench fame or silence legitimate expression. The judiciary’s role is not to manufacture stardom, but to ensure that the law does not turn into a backstage pass for monopolising identity in every form of expression. To borrow from Spider-Man, with great fame comes great constitutional responsibility. Courts must continue to keep this principle in mind while preventing personality rights from overshadowing freedom of speech and expression.

Nakul Dewan is a Senior Advocate and King’s Counsel.