Personality Rights vs Freedom of Expression - Finding a balance

Freedom of speech and expression has long been regarded as a cornerstone of constitutional democracy. In India, it is guaranteed under Article 19(1)(a) of the Constitution of India, 1950, and embodies the liberty to communicate ideas, share information, and engage in creative expression. Yet, freedom of speech and expression has never been understood to be absolute. During the Constituent Assembly debates, members grappled with the limits of fundamental rights and recognised the need to reconcile individual liberty with competing interests. The significance of this debate continues to hold relevance even today, particularly when the fundamental right to freedom of speech and expression overlaps and traverses with other fundamental rights.

In continuation of this debate, in recent years, the Courts in India have repeatedly been called upon to address the growing conflict between personality rights, recognised under the broader framework of Article 21, and the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. Personality rights, often used interchangeably with ‘celebrity rights’ or ‘publicity rights’, broadly concern an individual’s ability “to control commercial use of human identity”. These rights protect unique attributes such as an individual’s name, image, voice, likeness, and other distinctive characteristics against unauthorised appropriation and commercial exploitation.

In R Rajagopal v. State of Tamil Nadu, when personality rights were considered for the first time, the Supreme Court held that the unauthorised use of a person’s name or identity constitutes an invasion of privacy. The law has since evolved to recognise publicity rights as protecting the commercial value associated with an individual’s persona, with its enforcement requiring proof of identification and commercial exploitation. Later decisions, however, extended and expanded the scope of protection without requiring proof of falsity, confusion, or deception.

More recently, the Delhi High Court acknowledged that the infringement of personality rights requires more than mere identification of a celebrity or a party making a commercial gain. It underscored the need to also examine “misappropriation of goodwill and reputation of a celebrity in selling a good/service” and ruled that personality rights were subservient to the right of freedom of speech and expression. Courts have subsequently cautioned against extending personality rights to prevent dissemination of information or extinguish forms of creative expression including caricature, lampooning, and parody.

The interplay between personality rights and freedom of speech and expression has gained further momentum with the advancement of technology and artificial intelligence. In Raghav Chadha v. Ashok Kumar John Doe & Ors, the Delhi High Court observed that while artificial intelligence has become a means to create deepfakes or morphed images to undermine an individual’s personality, it is also a medium for expressing opinions on social media. The Court held that “a fair balance is to be struck with an individual's freedom of speech and expression which is also granted under the Constitution of India” and refused to direct that certain content be taken down.

The distinction is fundamental since the reference to a person’s identity may in some cases infringe on an individual’s personality rights while in the other cases fall within the bounds of legitimate speech and creative expression. For instance, using a celebrity’s name and identity to promote an unauthorised endorsement of a product is materially different from referring to the same individual in a film, biography, or parody. In the former case, the identity is being used to create a commercial association without any prior authorisation from such celebrity while in the latter case, the identity may constitute legitimate expression. The relevant question, therefore, is not merely whether an individual’s identity has been used, but rather how and for what purpose it has been used.

Personality rights may legitimately protect against unauthorised commercial exploitation, false endorsement, deepfakes, or intrusion on dignity or autonomy. However, where the use of an identifiable individual’s identity does not given rise to such harm, identification alone should not warrant restriction, subject to the limitations under the applicable law. The relief granted to public figures should therefore be premised on the nature and extent of legally cognisable and legitimate harm caused, rather than the mere use of an individual’s identity.

The concern with expansive enforcement of personality rights is illustrated in Salman Khan v. Ashok Kumar / John Doe & Ors. This case concerns a proposed film based on the blackbuck case involving the plaintiff. Despite the film allegedly drawing upon public records and using a fictional name, the Court found that the plaintiff was identifiable and held that his personality rights were prima facie exploited. The decision marks a significant departure from the Delhi High Court’s earlier position that the mere identification of a celebrity does not, ipso facto, constitute an infringement of personality rights.

In Salman Khan, the Court did not clearly distinguish between the commercial value of the film and the unlawful commercial exploitation of the plaintiff’s persona; and instead found that the mere identification of the plaintiff was enough to infringe on his personality rights. Consequently, the defendants were restrained from disseminating their creative work, raising concerns about the potential curtailment of the freedom of expression, guaranteed under the Constitution. This order has been challenged before the Supreme Court [Amit Jani v. Salman Khan & Ors, Diary No. 50682 / 2026], and any ruling in this matter may have significant implications on the interplay between personality rights and creative freedom.

In any event, this case highlights the need to assess the nature and purpose of the use when determining whether personality rights have been infringed. In the absence of evidence of violation of a legally recognised interest, the enforcement of personality rights bears the risks of becoming a tool for controlling expression rather than protecting against unlawful exploitation. In recognition of these very concerns which stem from the expansive enforcement of personality rights and given the recent surge of litigation on this burning issue, for the very first time, the Delhi High Court is also expected to clarify the scope and limits of personality rights.

Personality rights protect an individual’s interest in preventing the unauthorised use and exploitation of their name, image, voice, or likeness. However, the Courts must assess personality rights in light of the interests they are intended to safeguard. The boundary, therefore, must lie not at the point where an identity is used but at the point where it is misappropriated, deceived, or causes a legally cognisable harm. Beyond this boundary, the use of an individual’s identity may constitute an exercise of free expression rather than an infringement of personality rights. This approach is constituent and in line with Mill’s principle of individual liberty where the protection of a celebrity’s personality rights must not extend so far as to unduly deprive and restrict the freedom of speech and expression of others. The challenge before the courts faced with such matters seeking enforcement of personality rights is, therefore, not to choose between personality rights and freedom of speech and expression, but to ensure that the protection of one does not come at the unjustified expense of the other.

About the authors: Pratik Pawar and Shanaya Cyrus Irani are Partner, Meher Mistri is an Associate at JSA Advocates & Solicitors.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

If you would like your Deals, Columns, Press Releases to be published on Bar & Bench, please fill in the form available here.