The Delhi High Court recently issued an order safeguarding the personality and publicity rights of film actor Jackie Shroff, restraining several social media accounts, AI Chatbots, and e-commerce websites from exploiting the actor's name, voice, or image for commercial purposes without his consent. Shroff petitioned the court against the unauthorised use of his name and persona, seeking protection against various individuals and entities utilising and misusing his identity without permission.
The proliferation of AI-generated deepfake videos has exacerbated concerns for celebrities.
Jackie Shroff's isn't the first instance of a film star resorting to legal action to protect their personality rights. Over the past two years, the Delhi High Court has issued interim orders to prevent the unauthorised use of Amitabh Bachchan and Anil Kapoor's name, image, and voice. The question arises: why are some celebrities turning to courts for the protection of their personality rights, while others refrain?
"Where there is demonstrable misuse, people are approaching. Personality right is a facet of publicity right," says advocate Ameet Naik, who has represented Bachchan, Kapoor and now Shroff in their respective personality rights suits.
In India, laws regarding personality rights are still evolving, with courts deriving principles from Article 19(1)(a) (freedom of speech and expression), Article 21 (protection of life and personal liberty), and intellectual property rights laws. "A few celebrities may choose not to pursue legal action due to various reasons such as the perceived insignificance of unauthorised use, the costs involved in litigation, or a desire to avoid negative publicity," says Shoeb Masodi, Partner, M&P IP PROTECTORS.
What are Personality Rights?
Personality rights, as the name implies, pertain to the rights associated with the personality of a well-known individual, primarily applicable to celebrities whose names, images or voices are prone to misuse for profit. The concept dictates that only the owner or creator of these attributes has the right to derive monetary benefits from them.
Personality rights have gained importance alongside the right to privacy given the kind of fame celebrities enjoy today. In 1995, the Supreme Court recognised a person's right to control the commercial use of one's identity in the R Rajagopal vs. State of Tamil Nadu case, commonly known as the Auto Shankar case.
In 2015, the Madras High Court intervened to protect actor Rajinikanth's personality rights, halting the release of the movie Main Hoon Rajinikanth. The filmmakers had utilised the actor's name and style without his express permission, with the title itself serving as a clear indication of its connection to Rajinikanth.
In yet another case involving actor Amitabh Bachchan, the Delhi High Court in November 2022 restrained the use of the actor's name, image, voice, or any of his characteristics without his consent.
It is crucial to note that in intellectual property right cases, it's often impractical to name all infringing parties, leading affected parties to seek blanket injunctions or ban orders, known as 'John Doe' orders. Originating from the UK, John Doe orders are passed by a court against unknown defendants and the world at large.
In September 2023, the Delhi High Court ruled in favour of actor Anil Kapoor in a case filed by him to protect his image and personality from misuse by third parties. Kapoor had petitioned the court, stating that several parties were using aspects of his personality, including popular terms from his dialogues, like 'Jhakaas,' 'Lakhan,' 'Mr. India,' 'Majnu Bhai,' and 'Nayak', without his permission.
The court was also informed that third parties were unfairly benefiting commercially from the sale of merchandise featuring his pictures and voice for ringtones. Most alarming was the online circulation of fake pornographic images and videos of the actor with other actresses.
Notably, in its order, the Delhi High Court stated that satirical writing and genuine criticism would be safeguarded and not construed as violations of personality rights. While the word 'Jhakaas' can be used by people, they cannot exploit it commercially in the manner Anil Kapoor does. Similarly, it can be used for satire, criticism or parody, but not for monetary gains.
In the Jackie Shroff case as well, the court declined to order the removal of a video titled 'Jackie Shroff is Savage, Jackie Shroff Thug Life', posted on a YouTube channel named 'Thugesh'. The court deemed the video a form of artistic expression and said imposing restrictions would have significant consequences.
Establishing Legal Precedents
In the Anil Kapoor case, the court established the protection of personality rights in the realm of AI and deepfakes. However, this hasn't deterred the illegal use of celebrities' personal attributes for financial gains.
Regarding the existing laws, advocate Naik says: "I feel the current laws and the jurisprudence that we got from the Delhi High Court in matters of Mr. Bachchan or Mr. Kapoor are good references. I personally feel the time has come for us to protect personality rights. like the one provided by the Copyright Act."
However, the challenge lies in taking tangible action to identify infringers, notify them, and ensure compliance. Jackie Shroff's case marks the first instance of a court restraining an unlicensed Chatbot.
"There is a need for updated legislation or legal interpretations to address these emerging issues and provide stronger protections for celebrities' persona in the digital age. Additionally, enforcement mechanisms may need to be strengthened to effectively combat the misuse of AI-generated content," observes Masodi.
In the online world, cybercriminals exploit AI for nefarious purposes to make money while jeopardising people's reputations. Celebrities are taking the lead, and the courts are establishing principles and precedents. Being vigilant to preempt damage is crucial.
(Bharti Mishra Nath is a senior journalist)
Disclaimer: These are the personal opinions of the author