Right to privacy not inheritable by legal heirs of deceased: Delhi High Court allows release of film Faraaz

The Delhi High Court recently refused to stay the release of the film Faraaz, while noting that the fundamental right to privacy cannot be claimed by legal heirs on behalf of the deceased. (Ruba Ahmed & Ors v. Hansal Mehta & Ors.).While allowing the release of Hansal Mehta's film, which is based on the 2016 Dhaka terrorist attack, Justice Neena Bansal Krishna held,"The Right of Privacy which is agitated by the plaintiffs is that of the two daughters who have admittedly died in the attack. As already discussed above, Right to Privacy is essentially is a right in personam and is not inheritable by the mothers/legal heirs of the deceased persons.".The plaintiffs in the present case were the mothers of two victims of a terror attack which took place in Dhaka, Bangladesh in 2016. They sought an interim injunction restraining the filmmakers from releasing the movie, on the grounds that the release of the film would amount to infringement of their fundamental right to privacy and fair trial. They claimed that the facts depicted in the film are a part of the investigation in a case before the courts of Bangladesh, and that any movie created on distorted facts would hamper the ongoing case.It was prayed that the filmmakers be restrained from using their daughters' names and also the name of their best friend Faraaz, along with any image, caricature, lifestyle or likeness in the forthcoming movie.The petition also sought an alternative direction to hold a pre-screening before the Court in the presence of the plaintiffs and their representatives to ascertain the infringing content in the movie..After hearing the parties, the Court clarified that in this case, the mothers' right to privacy was in no way infringed by the movie, simply because their two daughters happened to be victims of the terror attack."Neither is the privacy of the mother's/plaintiff's in any way being compromised nor is there any affront to their dignity and privacy, merely because their two daughters happened to be the victims of the terror attack," the Court asserted.The Court also said that proximity to the incident needs to be proportionate to the trauma that may be caused to the plaintiffs for an injunction to be granted."To say that screening of a movie would cause any kind of trauma and upheaval may not be correct. Moreover, it also needs to be considered that the incident had happened in the year 2016 and the movie is intended to be screened now in 2022. The proximity to the incident is also proportionate to the trauma that may be caused to the plaintiffs. The proximity to the incident is a relevant consideration to decide if this can be a reason for injuncting the screening of the movie."With regards to the plaintiff's right to being left alone, the Court opined that chance or destiny may propel a private citizen into the public gaze and, therefore, it is important that in defining the limits of this right, the courts should proceed with caution.The Court also drew an important distinction between the concepts of privacy and anonymity and added,"A distinction has been made between anonymity on one hand and privacy on the other. Both anonymity and privacy prevent others from gaining access to pieces of personal information yet they do so in opposite ways. Privacy involves hiding information whereas anonymity involves hiding what makes it personal."Justice Krishna touched upon the aspect of defamation vis-a-vis emotional trauma and observed that defamation of a deceased person does not give rise to a civil right of action and common law in favour of the surviving family or relatives who are not themselves defamed."As a matter of sound public policy, malicious defamation of the memory of a dead is condemned as an affront to the general sentiments of morality and decency, and the interest of society demand its punishment through the criminal courts but the law does not contemplate the offence as causing any special damage to another individual, though related to the deceased, and therefore, it cannot be made the basis for recovery in a civil action," the order said..The only circumstance wherein the plaintiffs may be able to sustain injunctive relief is in the case of appropriation of identity, where one person uses another's name, "the focus is on plaintiff's name as a symbol of identity and not on the name per se," the order stated.The Court further stated that the plaintiffs were not able to demonstrate what irreparable loss and injury would be caused to them if the movie is screened.It also acknowledged that a lot of money had been spent on this movie and that the balance of convenience lay with the makers of the film."Therefore, the balance of convenience lies in favour of the defendants with the right to seek damages in case any violation of right of the plaintiff is established on screening of the movie," the Court ordered.Vacating its earlier interim stay on the release of Faraaz, the Court concluded that the plaintiffs were not able to establish any of the three limbs required to warrant an injunction - prima facie case, balance of convenience or irreparable loss or injury. .Senior Advocates Sudhir Nandrajog and Sanjiv Sindhwani, along with Advocates Yatin Grover, Sadaf Chowdhary, Achal Shekhar Sharma and Mannat Sandhu appeared for the plaintiffs.Meanwhile, Senior Advocate Saurabh Kirpal along with Advocates Shyel Trehan, Malvika Kapila Kalra, Nikhil R Ahuja, Tanwangi Shukla, Tanima Panigrahi, Nikhil Arora and Rohan Poddar appeared for the defendants..[Read order]