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Introduction:
Every individual is entitled to various rights during his lifetime, of which, one of the most basic, is the right to privacy. Closely related and connected with privacy, is the right of each individual to protect his reputation, as well as to prevent the use of his personal and identifying attributes. While reputation and personality are both derived from, and fall under the umbrella of privacy, the lack of specific legislation in India, to carefully differentiate between these rights, often results in the dissolution of their delicate boundaries, and thus, their interchangeable use and combined treatment. With the advancement of technology and increase in social media presence, there is an increased awareness amongst individuals to protect their privacy, reputation and use of their attributes, and accordingly, a rising need to distinguish these rights from each other, from a legal enforcement perspective. Further, recent cases on this subject have also prompted the question of whether such rights continue to survive after an individual’s death.
In Part 1 of this article, the author shall discuss the genesis and evolution of the right to privacy in the United States of America, United Kingdom, and India, by looking closely at the jurisprudence surrounding the same, its equation with reputation and defamation, and the recognition and development of what is commonly referred to the “other side of the coin” in the context of privacy rights, i.e., personality/publicity rights. Part 1 shall also briefly answer the question of whether such rights, being of a personal and individualistic nature, can survive after a person’s death, so as to enable the deceased person’s heirs to claim violation of his rights, on his behalf.
Part 2 of this article shall continue the discussion on posthumous survival of these rights in detail, through a detailed analysis of two recent cases on this subject. In addition, the author will also highlight the interchangeable and combined treatment of such rights in these claims.
Before proceeding, it is important for the reader to understand the basic definitions of privacy rights, publicity/ personality rights, and the right of reputation (covered under the law of defamation) which are as under:
- “Privacy right” is the right of an individual to keep his/her life private and from being discussed or interfered with, by the Government or by any other third party. Under Article 12 of the UN Declaration of Human Rights[1], every individual is entitled to protection of his/ her private life and to prevent attacks on his/ her honour and reputation. Indian law includes the right to privacy under Article 21 of the Constitution[2] under the right to life and personal liberty. The right to privacy has been recognized as a fundamental right in various jurisdictions of the world, including India.
- “Personality/ publicity right” is the right of an individual to control the commercialization and monetization of his name, image, likeness, voice, photographs, videos, other personal identifiers and attributes and to prevent the use of such personal attributes by other people without one’s consent/ approval.
- In comparison to privacy rights, violation of which would cause injury of a non–economic nature, violation of one’s personality/publicity right would cover injury of an economic nature, in the sense that compensation would be due and payable by a third party to the individual, for utilizing his/her personal attributes without consent.
- “Protection of reputation” is encompassed under the right to privacy, in so far that the right to privacy includes the right to prevent a third–party from attacking one’s honour and reputation[3]. The essence of the law of defamation is, protection of an individual’s reputation, and the right to privacy safeguards individuals’ sensitivities about what people know and believe about them, therefore, creating an intrinsic link between the right of privacy and one’s right of reputation. However, legally speaking, “protection of reputation” is a more extensive right and is covered under the law of defamation. In India, defamation is an offence under both, civil and criminal law.
- Under civil law, defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant.
- Under the criminal law, defamation is covered under Section 499 of the Indian Penal Code, 1860[4], according to which “Defamation” is the act of communicating false statements about a person that injures the reputation of that person. Any false and unprivileged statement published or spoken deliberately, intentionally, knowingly, with the intention to damage someone’s reputation is defamation.
- Under the law of defamation, a person’s reputation is treated as his/ her property and such damage is punishable by law.
Genesis of the right to privacy and personality/ publicity rights in the USA and UK:
Samuel Warren and Louis Brandeis in 1890 in their article titled “The Right to Privacy”[5] described the right to privacy as an already existing common law right which embodied protections for each individual’s ‘inviolate personality’ and argued that it was necessary for the legal system to recognize the right to privacy because, when information about an individual’s private life is made available to others, it tends to influence and even to injure the very core of an individual’s personality. While the jurisprudence revolving around privacy rights developed in the United States of America (USA), publicity rights grew simultaneously and originated as a subset of privacy rights, until it was recognized as a distinct right in itself, which is covered under various state laws in the USA.
In a landmark case, Haelan Laboratories v. Topps Chewing Gum, Inc.[6], it was held by Judge Frank that people, especially prominent ones, in addition to and independent of their right of privacy, have a ‘right in publicity value of their photographs’. Even as Judge Frank was the first to coin this term, no judicial rationale was offered for the new right, except that without it, prominent persons would be denied image revenues and would thus feel ‘sorely deprived’, thus, paving the way for commodification of personality. The development of publicity rights as an independent right and cause of action is in line with the distinction created by Nimmer in The Right of Publicity[7]. Nimmer categorically stated that what performers or celebrities required was a right to control the commercial value of their identity, given the hard work and skill that performers undertook, sometimes over many years, to build their persona and create goodwill in their favour, rather than protection against unreasonable intrusions into privacy.[8] The USA Supreme Court further clarified this separation between privacy and personality rights in Zacchini v. Scripps-Howard Broadcasting Co.[9] The court, in this case, while protecting the petitioner, held that privacy was a personal right, whereas the right to publicity was a commercial right that had a wider ambit to cover performer’s rights. This case led to the development of the right to publicity as a property-based doctrine and the exclusive right of a celebrity to commercial use of fame acquired by him/her as a part of his/her professional persona.
In the case of Hoffman v. Capital Cities/ABC Inc[10], Mr. Hoffman filed a complaint against Los Angeles Magazine’s (“LAM”) parent company, Capital Cities/ABC, Inc. LAM had digitally edited an image of Dustin Hoffman’s character from the film “Tootsie”, to impose his head on the body of a male model who was wearing a woman’s dress and shoes, along with the caption: “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels”. The complaint alleged that LAM’s publication of the image misappropriated Mr. Hoffman’s name and likeness, thereby violating California’s common law and his statutory publicity right since LAM had not obtained permission from Mr. Hoffman to publish this image. While, in this instance, the Court ruled against Mr. Hoffman on First Amendment grounds, by holding that the magazine’s appropriation of identity was “communicative” rather than “commercial” and that the article published was not commercial speech[11], what is interesting to note is that Mr. Hoffman’s complaint was based on the argument that his name and likeness is an extremely valuable commodity and that he does not permit commercial use of his identity.
Despite the clear demarcation in privacy rights and publicity/ personality rights, the implementation of specific legislation in relation to the right of publicity is not uniform throughout the USA. Although there has been discussion to implement federal legislation, there is currently no federal publicity law in the USA. Several states have not adopted a legal framework to protect the right of publicity at all. Nineteen states have enacted statutes to protect rights of publicity, including Florida, Illinois, New York, and California. In other states, including some that have enacted statutes, there are common law rights of publicity, instead of, or in addition to, statutory protection.
While the right of personality has been afforded protection in the USA for well over 50 years, the United Kingdom (UK) remains skeptical about creating monopoly rights in one’s personality. The absence of a holistic personality right regime in the UK must not be equated to an absence of protection because effectively, case law has shown that the unauthorized exploitation of personality features has been, to some extent, restricted in English law as well. Unauthorized use of a person’s image can be challenged under other existing regimes such as passing off, trademark infringement, data protection, advertising regulations or breach of confidence. The law in the UK on the subject has seen considerable growth and change. The introduction of the Human Rights Act, 1998, which incorporated the European Convention of Human Rights (“ECHR”) and certain provisions of the ECHR, helped pave the way for recognizing privacy as a right; and under the Data Protection Act 1998[12], certain obligations are placed on those who control and process personal data i.e., information about living individuals, and those collecting information have to follow certain principles in relation to holding and processing the information.
In Irvine v Talksport[13], it was established that a racing driver was well known to a significant proportion of the UK public in the field of motor racing through endorsement deals, private sponsorship, and merchandising, and so had sufficient goodwill in his name and likeness to support a passing off claim. In the case of Campbell v. Mirror Group Newspapers Ltd.[14], photographs of Naomi Campbell were taken when she was leaving a narcotics clinic. These images were manipulated, one to add the caption ‘Therapy: Naomi outside Meeting’ and the other to add the headline ‘Naomi: I am a drug addict’. Campbell sought damages based on breach of confidence.[15] Her action concluded successfully in the House of Lords, in which the court restored the trial judge’s “modest” award of £3,500 in damages. Because Campbell presented her case only on the basis of a breach of equitable duty of confidence under common law, the House of Lords was not required to consider broader issues which arise from other forms of invasion of privacy. The House of Lords, however, acknowledged that the UK still does not have an “over-arching, all-embracing” cause of action for “invasion of privacy,” in contrast to the USA. Even though a considerable amount of crystallization in the development of personality/ publicity rights still remains, it can now be seen that some extent of protection under English law for commercial use of an individual’s image and information does exist.
Being a former British colony, India has adopted a vast portion of its laws from the UK and India, like the UK, does not have an independent legislative provision protecting an individual’s right of publicity. For a long time, the right of publicity has largely been enforced in India under the common law tort of passing off and/or filing of a defamation suit. But in recent cases, we can observe a shift in the judicial pronouncements in India, which, like the USA, has been recognizing and deriving the right of publicity, from the right of privacy.
Development of the right to privacy in India:
The right to privacy as an independent and distinctive concept, originated in the field of tort law, under which a new cause of action for damages, resulting from unlawful invasion of privacy, was recognized. There is no separate codified law in India dealing with privacy or publicity rights and the position and on-going development of such rights and laws in India is still largely governed by judicial pronouncements of courts.
The scope of the right to personal liberty under Article 21 of the Constitution of India[16] was widened in the landmark ruling in Maneka Gandhi versus Union of India[17], wherein the passport of the petitioner in this case, was impounded by the authorities under the provisions of the Passport Act. The judgement altered the landscape of the Indian Constitution and widened Article 21’s scope immensely and it realized the goal of making India a welfare state. The Supreme Court in the case stated that the interpretation of ‘personal liberty’ should not be construed in a narrow and strict sense but should be done in a liberal and broad sense. The judgement paved the way for the Apex Court to bring into the ambit of Article 21 other important rights like right to privacy, right to clean water and air, standard education, etc.
Thereafter, the case of Phoolan Devi vs. Shekhar Kapur[18] exemplifies the need to recognize privacy rights as critical to one’s existence. A suit was filed to restrain the defendants from exhibiting publicly or privately the film “Bandit Queen” in India or elsewhere. The Delhi High Court injuncted the defendants from exhibiting the film and found the film to be violating the privacy of plaintiff’s body and person. The Court held that the right to privacy is implicit in the right to life and property, guaranteed to the citizens of this country by Article 21 of the Constitution, consent and public record being exceptions in contravening the right to privacy. They further held that if the defendants were allowed to exhibit the film further it would cause further injury to the plaintiff. No amount of money can compensate the indignities, torture, feeling of guilt and shame which has been ascribed to the plaintiff in the film. The matter was eventually settled between the parties.
The right to privacy was finally recognized as a fundamental right protected under Article 21 of the Constitution of India[19] by the Hon’ble Supreme Court in the landmark judgement of Justice K.S. Puttaswamy (Retd.) vs. Union of India & Ors.[20], wherein the petition was filed to challenge the constitutional validity of the government’s proposed scheme for a uniform biometrics-based identity card (Aadhar Card) which would be mandatory for access to government services and benefits. The judgement passed by a nine-judge bench affirmed the constitutional right to privacy and declared privacy to be an integral part of our fundamental rights.
Evolution of Publicity Rights in India:
As one can see from the Puttaswamy judgment[21], the Apex Court, following years of legal precedent, finally arrived at the conclusion that an individual’s right to privacy is a fundamental right. Justice Sanjay Krishna Kaul in his opinion in the judgement, touching upon publicity rights said, “Every individual should have the right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This means that an individual may be permitted to prevent others from using his/ her image, name, etc.”. Given that Justice Sanjay Krishna Kaul’s opinion in the judgement refers to a form of publicity/ personality rights, it becomes critical to evaluate the correlation between a person’s right to privacy and publicity/ personality rights, and understand through judicial precedent, as to whether one’s publicity/ personality rights will get a status akin to one’s right to privacy. The right to publicity was perhaps first recognized in India by the Supreme Court in Rajagopal v. State of Tamil Nadu[22], where the Supreme Court stated that “the first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent”.
In 2003, the Delhi High Court, in the case of ICC Development (International) Ltd., Vs. Arvee Enterprises[23], expressly dealt with publicity rights as a facet of privacy right under an action of the tort of passing off. The court held that: “The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event. Any effort to take away the right of publicity from the individuals to the organiser (non-human entity) of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of publicity vests in an individual and he alone is entitled to profit from it”.
Thereafter, the Madras High Court has been seen to recognise personality/ publicity rights on a standalone basis as seen in the case of Shivaji Rao Gaikwad vs. Varsha Production[24] wherein the filmmakers were restrained from using the title, “Main Hoon Rajinikanth” as the name of the film could undoubtedly be associated with the superstar Rajnikanth due to the perception/impression of the public, who would necessarily associate the film with the Rajnikanth. The Madras High Court held that even if the movie was not a biopic of Rajnikanth, his name could not be used without his prior permission as personality rights vest with persons who have attained the prestige of a celebrity and no proof of falsity, confusing or deception is required when the celebrity is identifiable. Similarly, in D.M. Entertainment vs. Baby Gift Horse[25], the Delhi High Court held that violation of publicity rights had taken place in addition to false endorsement and passing off, by Baby Gift Horse who was selling dolls which looked like the popular music composer, lyricist, and singer – Mr. Daler Mehndi, which dolls could also sing a few lines from some of his compositions. Whilst assessing infringement of publicity right, the Court inter alia, considered, (a) public recognition and popularity of Mr. Daler Mehndi; (b) identifiability of Mr. Daler Mehndi from the unauthorized use; and (c) sufficiency, adequacy, and substantiality of the user to identify the appropriation of the persona of Mr. Daler Mehndi or some of the essential attributes.
As can be seen, Indian courts have started recognizing and have established, through various judgements that, apart from the right to privacy, there also exists a publicity right in favour of individuals, which flows from the right to privacy, and is capable of commercial exploitation.
Defamation equated with invasion of privacy in India:
Privacy and defamation have been equated, used interchangeably, and treated as one and the same thing. Violation of privacy rights has often been covered under suits for defamation, despite the fact that defamation and privacy rights raise issues which are quite distinct. The main difference between invasion of privacy and defamation is that truth is not a valid defense against the former. Even though both protect violation of a person’s dignity, the cause of action under both rights are separate. The following two cases point out how claims for defamation and invasion of privacy have been combined and how the courts in India have dealt with them. In the case of Akshaya Creations v. Muthulakshmi[26], the wife of a convicted criminal named Veerappan filed a suit, that the film based on the life of her husband depicted her husband in bad light and infringed upon his right to privacy. The Supreme Court while clarifying that though every citizen had right to privacy under Article 21 of the Constitution, any information based on public records could be published by the press. However, the Court directed that the portions which depicted Veerappan’s marriage and private life to be removed from the film as the same infringes upon the right to privacy. In the case of Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai[27], a writ petition was filed by Silk Smitha’s brother, claiming that the movie ‘The Dirty Picture’ portrayed her sister in a defamatory and obscene manner. The Court observed that the said film was not a biopic or a fictional representation of the life of the petitioner’s sister as the film carries a specific disclaimer to the effect that the said film was a work of fiction and that all characters are fictitious and therefore there is no violation of any right of privacy or reputation of the deceased actress or her family including the petitioner. The Court held that “Anybody is allowed to make a movie on the life-story of a person relying on facts which appear in the public records, even without his consent or authorization. But if they go beyond that then they may be invading his right to privacy and will be liable for the consequences in accordance with law.”
Need for Statutory Legislation to create Distinction:
Courts in India have been depicting an increased awareness regarding the separate treatment of these rights and creating a distinction between them. While the law is still developing through case law, there is a need for creation of statutory legislation which clearly sets out the differences and boundaries between these rights. It will be interesting to observe the distinct implications and impact that violation of these rights could result in, if they are capable of enforcement as separate causes of action. When recognised and treated as separate rights, the arguments and outcome of a given case could change and depend on the whether the basis of the claim is a violation of privacy, reputation or publicity.
Posthumous Survival of the Right to Privacy and Publicity:
Under common law, it has been a general rule that a personal action dies with the person, meaning that the death of a party extinguishes any cause of action in tort that he may have had while he was alive. This is expressed by the maxim “acto personalis moritur cum persona”. In 2017, the Supreme Court in the Puttaswamy judgment[28], stated that “right to privacy of an individual remains with the being till he/she breathes last. It is born with the human being and extinguishes with human being”.
While it is established that the right to privacy is a fundamental and inalienable right, which does not survive the death of an individual, it remains to be seen whether courts in India will decide whether:
- Publicity rights can continue to exist and survive posthumously, given the difference in economic nature between the two and the aspect of commercialization associated with publicity rights; and
- Whether a deceased individual’s heirs can claim violation of, or enforce, the publicity/personality right of a such deceased individual.
In Part 2 of this article, we will continue this discussion through a detailed analysis of two recent cases revolving around the posthumous rights of deceased individuals, which have been filed by the heirs of certain deceased individuals, claiming violation of such deceased individuals’ rights, on account of unauthorised commercial exploitation of their names and life stories, after their death.
Authored by:
Anushree Yewale, Principal Associate
Anushree Yewale has over 6 years of work experience in the media and entertainment sector. Prior to joining TMT Law Practice, Anushree has worked with a boutique intellectual property rights law firm. She has provided end-to-end support to numerous production houses, broadcasting companies, talent management agencies, and independent artists, provided transactional and advisory related services for content creation and content exploitation across various modes, media. and formats, structured, negotiated and implemented complex transactions involving S&P compliance for scripts, development and production of audio-visual content, distribution, and acquisition of audio-visual content, merchandising deals, film licensing and assignment deals and other ancillary transactions, negotiated sponsorship and endorsement contracts including celebrity licensing, cleared advertising for use in online and off-line media, and handled product placement and media productions.
Email – anushree.yewale@tmtlaw.co.in
Riddhi Tulshian, Associate
Riddhi Tulshian has around 2 years of work experience in the intellectual property and media & entertainment industry. She earned the degree of B.B.A. LL.B (Hons.) in 2019 from SVKM’s NMIMS Kirit P Mehta School of Law with a specialization in Business Laws. She joined TMT Law Practice in May 2019. She specializes in strategizing IPR transactions and has worked with production houses, OTT platforms and radio broadcasters, has worked on production and distribution deals, rendered legal assistance in acquisition of film and format rights, service agreements, licensing agreements and technology related to intellectual property as well as e -commerce, advised on copyright related transactions including script & content clearances, due diligence for ascertaining IP ownership and advising, structuring and negotiates deals on transactions for production, distribution and licensing. She is enthusiastic about and looks forward to working in the fields of technology and privacy law.
Email – ridhi.tulshian@tmtlaw.co.in
Meghana Chandorkar, Partner
An Alumnus of ILS Law College, Pune, Meghana has 12 years of experience as an Intellectual Property and Media & Entertainment lawyer.
After graduating in 2009, she has worked with the intellectual property teams of leading law firms, with a strong focus on trademark and copyright law, as an in-house counsel for a music company, and for a broadcast, media, and entertainment company.
Working with law firms in the initial half of her career has helped her create and develop a strong base of legal knowledge and, working in-house has been instrumental in giving her an insider’s perspective, to better understand client requirements, from a business and commercial point of view, and to provide specific, appropriate and well-rounded legal advice, draft and structure agreements and minimize risks, keeping in mind the business requirements.
While working as an in-house counsel, she was selected for, and has completed, a certificate program, in 2018, called the ‘Young Leader Development Program’ from MICA, Ahmedabad, designed specifically to develop young leaders across business and corporate functions, to tackle real-time problems and put forth innovative business solutions.
Her core areas of expertise include structuring, drafting, and negotiating agreements, and providing advice and opinions, pertaining to the creation, maintenance, protection, acquisition, and exploitation of intellectual property rights. She is skilled in copyright, media and entertainment, broadcast, trademark, and contract law, and she has been recognized as a professional whose advice is valued in providing creative legal solutions and advice to clients.
Email – meghana.chandorkar@tmtlaw.co.in
[1] Article 12 of the UN Declaration of Human Rights – No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
[2] Article 21 in The Constitution of India 1949: Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.
[3] Supra Note 1
[4] Section 499 of the Indian Penal Code, 1860: Defamation – Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Explanation 1—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives.
[5] Warren & Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890)
[6] 202 F 2d 866 (2nd Cir.) (1953) [The relevant facts of the case were as follows: Plaintiff, a chewing gum manufacturer, had contracted with certain well known baseball players for the exclusive right to use their photographs in connection with sale of its products. Subsequently, Russell Publishing Company, acting independently, obtained like grants from same players. Russell then assigned rights to the defendant, also a chewing gum manufacturer, which used the players’ photographs in promoting its products. Plaintiff sought an injunction on the ground that the defendant’s action conduct violated its right of exclusive use. The defendant countered that the players possessed no legal interest in their photographs other than right to privacy, which is personal and not assignable.]
[7] Nimmer, The Right to Publicity, 19 Law and Contemporary Problems 203 (1954).
[8] Ibid
[9] Zacchini v. Scripps-Howard Broadcasting Co., 1977 SCC OnLine US SC 153, 53 L Ed 2d 965, 433 US 562 (1977).
[10] Hoffman v. Capital Cities/ABC Inc, 255 F.3d 1180 (9th Cir. 2001).
[11] “These facts [that the body double was identified as wearing Ralph Lauren shoes and that there was a Ralph Lauren advertisement elsewhere in the magazine] are not enough to make the photograph pure commercial speech…. LAM did not use Hoffman’s image in a traditional advertisement printed merely for the purpose of selling a particular product.” Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1185 (9th Cir. 2001).
[12] Data Protection Act 1998 (DPA) gives effect in the UK law to EC Directive 95/46/EC.
[13] Irvine v Talksport, [2002] EWHC 367 (Ch).
[14] Campbell v. Mirror Group Newspapers Ltd., 3 [2002] H.R.L.R. 28
[15] Campbell also sought damages for breach of the Data Protection Act of 1998, but it was accepted that this legislation provided parallel protection with the equitable action and the case proceeded on the basis of the equitable action.
[16] Article 21 in The Constitution of India 1949, Supra Note 2
[17] Maneka Gandhi v. Union of India, AIR 1978 SC 597, 621.
[18] Phoolan Devi vs. Shekhar Kapur, 57 (1995) DLT 154.
[19] Article 21 in The Constitution of India, Supra Note 2
[20] Justice K.S. Puttaswamy (Retd.) vs. Union of India & Ors., 2017 (10) SCC 1
[21] Ibid
[22] Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632
[26] Akshaya Creations v. Muthulakshmi, (2013) 1 LW 612 (Mad)
[27] Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai: Writ Petition No. 30376 of 2011
[28] Justice K.S. Puttaswamy (Retd.) vs. Union of India & Ors., Supra Note 20