The Jurisprudence of ‘Privacy’ in Personality vis-a-vis Publicity Rights

*Poorva Sharma

The scars of digital manipulation and deep-fakes on social media are getting deeper with the boundaries between the physical and digital realms becoming increasingly blurred. The recent decision in the Arijit Singh case has thrust the concept of personality rights into the spotlight, igniting a much-needed discourse on the protection of an individual’s digital identity, which is much needed in lieu of a line of cases filed by Indian celebrities this year. A dearth of dedicated provisions in copyright law in India safeguarding the unique attributes of a person (especially their personality) has become glaringly apparent. This blog dissects the concept of personality and privacy, deciphering their jurisprudence and examining how recent decisions by Indian courts have inadvertently missed this essential distinction. 

The flashpoint of our discussion grows from a demand of the right to solitude, which was discussed elaborately in Puttaswamy, where court remarked: 

“The right “to be let alone” thus represented a manifestation of ‘an inviolate personality’, a core of freedom and liberty from which the human being had to be free from intrusion.”

(para 34)

The inviolable right to personality is a right which every celebrity has, cultivates, and fiercely guards, in respect of their public image. However, the distinction between privacy as ‘personality’ rights (as an ontological construct) and ‘publicity rights’ (as an epistemic right), though conceptually discernible, is often eclipsed by their symbiotic relationship. The Neethling’s Law of Personality, which is a cornerstone text in South African law, defines and explains the concept of personality rights as independent, subjective rights. It identifies the facets to personality namely, physical integrity, good name, dignity, feelings, privacy and identity. 

Personality rights encapsulate the essence of individual identity, which is a metaphysical core around which legal protections coalesce. They are the foundational rights from which other (and more specific) rights, such as privacy, emanate. Yet, this dichotomy is not absolute as there exists a dialectical tension between the two: privacy is essential for the protection of personality, but personality is the underlying justification for privacy’s existence. This is why delineating the distinction between the two is not to posit personality rights as a mere subset of privacy. Rather, understanding the distinction of privacy rights as personality rights having deontological manifestations, is essential as against privacy rights as publicity rights which are economic in nature. This is what the courts have failed to chalk out in their dictums.

The Delhi High Court, recently in Jaikishan Kakubhai Saraf alias Jackie Shroff v The Peppy Store & Ors., involving bollywood actor Jackie Shroff issued an interim injunction restraining unauthorized commercial use of actor’s name, voice, image and likeness (including his sobriquet Bhidu) to protect his personality rights. However, the court’s decision does not clearly mention about right to privacy and in fact, acknowledges the importance of artistic expression and freedom of speech. In one instance, a video compiling interview clips of Shroff with humorous additions was deemed ‘acceptable’ because it did not damage his reputation (caused economic losses). Similarly, in Arijit Singh v Codible Ventures LLP and Ors., the word publicity rights is used synonymously with personality rights, even though the alleged violations include tortious claims of tarnishment (goodwill, a facet of personality rights) and commercial exploitation (privacy in economic sense).

Due to the lack of consistency in law, this area is handled primarily by statutory legislation that defines personality or publicity rights and their variations; India having no explicit legislation in this behalf derives this protection from its IPR laws. To elucidate, using section 2(m) of the Trademarks Act (1999), cricketer Yuvraj Singh had attempted to register his name as marks for protection. Similarly, the Copyright Act, which protects performers under section 2(qq), defines performers but does not distinguish between them and celebrities, much alone defines them. 

Hence, the question that arises is: What is the jurisprudence behind these rights? 

Can Privacy pave the way for stronger Personality Rights? Or is it a separate right?

Indian jurisprudence stresses on proportionality (infringement justifiable by compelling public interest), balancing of rights (as against freedom of expression) and reasonable expectation of privacy of an individual. To establish a violation of privacy or personality rights, it must be shown that the individual suffered harm or damage. However, no evaluation of ‘nature’ of harm seems to be present in such discourse. 

The conflict between personality and publicity rights was dealt by the court, for the first time in Rajgopal v. State of Tamil Nadu, where it held that the appellant’s claim of a violation of their right to privacy must be balanced with the respondents’ freedom of speech and expression. However, the court overlooked that this case was a privacy issue, not commercial exploitation as it protected an individual from having their home raided by the police without a warrant. After Rajgopal case, the error continued, and another issue before the court was whether or not a deceased celebrity’s legal heirs might inherit their right to privacy.

In 2021, the question of posthumous publicity rights arose in Krishna Kishore Singh v Sarla A. Saraogi & Ors., regarding the inheritance of late actor Sushant Singh Rajput’s publicity rights after his death. The court needed to determine if his father, Krishna Kishore Rajput, would inherit these rights. Ratio in Makkal Tholai Thodarpu Kuzhuman Limited v. Mrs. V. Muthulakshmi was discussed where the public domain concept protected the depiction of real-life events and personalities to prevent losses, along with Deepa Jayakumar v. AL Vijay, which explicitly established that legal heirs of deceased celebrities cannot claim privacy violations based on portrayals in movies or media as a mandate. 

The majority opinion authored by Justice Sanjay Kishan Kaul answered the issue of posthumous publicity rights in the negative holding that they are intrinsically tied to and derived from the right to privacy, and ‘a person’s privacy rights expire upon death’. But the court failed to assess whether denial of posthumous privacy rights is only to protect their dignity against unwanted biased portrayals or also to cover economic losses due to the depiction of their personalities.

That is the reason for inconsistency in High Court judgements in this regard, such as Super Cassettes v. Unio of India, in which the Punjab and Haryana High Court refused to recognize personality rights as a subset of the right to privacy. 

The court has, time and again, failed to mark the fact that privacy rights are not the exclusive source of publicity rights. The source is derived from the ‘commercial worth’ that a particular name or a particular celebrity brings with it. Hence, both are to be considered while deciding upon denial of these rights.

Approaches from around the world

Europe has clear distinction and in cases of celebrity breaches, leans towards a strong and broader “right of publicity”, in economic sense. The US and other common law jurisdictions try to strike a balance between personality rights (as a subset of right to privacy) and freedom of expression.  In France, Article 9 of their Civil Code, protects an individual’s right to their ‘image’, extending it to include a person’s name, voice, and other identifiable characteristics. Their courts have established the right to control the ‘commercial use’ of one’s image. In Germany, the concept of “general right of personality” (Allgemeines Persönlichkeitsrecht) enshrined in their constitution (Article 1 & 2), encompasses control over the portrayal and commercial exploitation of one’s personality. In the UK, no specific legislation on personality rights exists, but courts rely on common law principles like breach of confidence and misuse of private information.

The US has a more fragmented system with personality rights protected through a combination of state laws and common law doctrines. The ‘right of publicity’, coupled with ‘right to privacy’ is strongest in states like California (Civil Code Section 3344) and New York (Right of Publicity Statute), granting individuals control over the commercial use of their name, likeness, and other identifiable aspects. 

Untie the Gordian knots: Towards Solution

The discussion above highlights the need for a clearer legal framework around privacy rights in India. The solutions can be inspired by existing copyright law and the concept of ‘stages’ to develop a more comprehensive approach.

Firstly, the current legal void in India blurs the lines between privacy as personality rights (commercial exploitation control) and privacy as publicity rights (information control) and this ambiguity can hinder effective legal action against deceptive practices like deep-fakes used for commercial gain. Hence, India should enact legislation that clearly defines both personality and privacy rights (similar to how Section 57 of the Copyright Act separates moral rights from the underlying work). 

Secondly, full-blown personality rights are needed, in which a legal framework could be established with personality rights in stages. Initially, upon birth, basic personality rights could be recognized (analogous to privacy rights, i.e., restricted). As a person builds their public image, stronger protections could be granted for commercial use of their identity. Finally, upon the person’s death, a designated period could allow heirs or legal representatives to enforce these rights, similar to copyright’s moral rights. This staged approach would balance individual control over their growing public image ratably and would also offer deceased celebrities’ families a way to protect their legacies from commercial exploitation. However, if inheritance of publicity rights is acknowledged, it could only be for a short time as the brief length is intended to represent the ‘waning cycle’ of a celebrity’s marketability. 

Conclusion

In light of the increasingly intrusive assault on both personality & publicity unleashed by the digital world, publicity rights are recognized as unique rights throughout the world and will only continue to receive greater attention in the years to come. Although the Indian judiciary has recognized these rights as being a part of the right to privacy, it may be time to fill the gap in statutory law and introduce specific law that recognizes celebrity rights as well as the commercial and property rights aspect of publicity rights, even posthumously. 

*Poorva Sharma is a student pursuing B.A. LL.B, at Dharmashastra National Law University, Jabalpur.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.