What are the privacy rights of a dead individual? Do celebrities have special rights?

The issue of disclosure of personal information of the deceased and the transfer of privacy rights upon the death remains a complex and evolving area of law in India. A recent decision of the Delhi High Court would help our understanding of the issue and the codification of the law in this complicated area.

Background

1. Sushant Singh Rajput (SSR) debuted in Bollywood in 2009 and met an untimely end on 14 June 2020.  
2. In earlier round of litigation, FAO (OS) (COMM) 88/2021 filed by the father of SSR was disposed of by the Division Bench of Delhi High Court vide an order dated 26 July 2021.
3. The basic submissions before the judge were:
   1. Something in the nature of a completed film, titled “Nyay : The Justice”, was released, on OTT platform, i.e., 11.06.2021 and could be viewed on the OTT Platform http://lapalaporiginal.com/
   2. The film portrays that SSR was subject to various vices such as drug addiction, SSR was mentally unwell, that he was anxious and depressed and that he died by committing suicide. His father claimed that it violated his right to privacy and that of his father.
4. Father of SSR sought an injunction. He claimed it is needed in order to protect possible irreparable injury to himself, his son and his family’s reputation, damage to his family and defamation and politicization of the event of death of SSR. It was submitted that the impugned movie compromises his right to privacy as well as the right to free trial of SSR. He sought:
   1. Pass an order and decree of permanent injunction to restrain use in any manner of their son’s name/caricature/lifestyle or likeness in any forthcoming project/films in any manner whatsoever amounting to infringement of Copyright.
   2. His son’s name /image /caricature /lifestyle /likeness from all websites, television channel, newspapers, social media and or other modes of advertisements and promotion in any other mode of electronic or print media in respect of forthcoming ventures.
   3. Stop the misappropriation of the personality of his son and whatsoever amounting to infiltration of personality rights by such unauthorized use.
   4. Take down the movie - Nyay the Justice, from the LAPALAP original platform
   5. Claim of exemplary and punitive damages.
   6. Damages of Rs. 2,00,02,200/- for loss of reputation, mental trauma and harassment to him and his family at hands of Defendants
5. His father claimed that Celebrity rights have emerged as a distinct category of intellectual property right. A celebrity enjoys a distinct bundle of personality rights, privacy rights and publicity rights. The celebrity rights continue to exist, posthumously, in his legal representatives, after his death. It was alleged that the film is based on unverified and unauthenticated news reports, many of which were defamatory to SSR, without verifying either their truth or their authenticity.

Contentions

1. The only restraint on the right to free speech, enshrined in Article 19(1)(a) of the Constitution of India is Article 19(2). Article 19(1)(a) does not require the moviemaker to verify the truth of the material shown in the movie, especially where the material has been derived from sources available in the public domain.
2. The father of SSR is incompetent to maintain the suit, as the right to privacy, the right to publicity and the right to protection against defamation are all personal rights, which do not survive the person concerned, and are not heritable

Discussions

1. Disclaimer - The Court held that the impugned film is a faithful retelling of SSR’s life story, and the circumstances surrounding his untimely demise. It is obvious that a disclaimer which, when seen in the backdrop of the movie itself, is plainly untrue, is worth tinsel. It is, rather, an unscrupulous attempt at pulling wool over the eyes, not only of the viewing public, but also of any other authority – such as this Court in the present case – before whom an occasion to compare the movie with true life, comes up for consideration. The insertion of a disclaimer, disclaiming relationship between the events and characters depicted in the film and real persons would not suffice to negate the possibility of any such connection or relationship existing.
2. While the proscription against publication of matters concerning the right to privacy of an individual, without his consent, was otherwise absolute, the proscription would not apply where the publication was based upon public records, including court records. This, it was held, was because, once the matter became part of public record, it would no longer be protected by the right to privacy. Additionally, the Supreme Court held that, in the case of public officials, would apply mutatis mutandis to public figures as well – the right to privacy, or any remedy flowing from the said right, would not be available except where the publication was made with reckless disregard for truth. It was further clarified that, in such a case, it would be sufficient for the defendant – significantly, the member of the press or media (thereby equating press reports with media coverages) – to prove that he had acted after a reasonable verification of the facts. It was not necessary, in such circumstances, for the publisher of the impugned content to establish that what he had written was true. This principle, obviously, would not apply where the publication was actuated by malice or animosity.

Decision of the Court

1. The principles emanating for the above decisions may cumulatively be noted as under:

1. If a person’s name or likeness is used, without his consent, for any purpose, or his life story is written or published without his consent, the person’s right to privacy is violated.
2. In such an event, the remedy with the person is to sue for damages, and not to seek injunction of the offending publication. This position would continue to apply even if the offending publication was defamatory in nature.
3. This right to privacy cannot be canvassed by one person, on behalf of another, without due authorization.
4. If the publication is based on public records, including Court records, however, there is no invasion of the right to privacy.
5. No action for damages on the ground of violation of the right to privacy can be maintained by public officials, or public figures, even if the publication is untrue, unless it is made with reckless disregard for truth. All that the person publishing the publication, be it a member of the press or the media, has to show is that he had reasonably verified the facts.
6. This defence would not, however, be available if the article, or publication, is actuated by malice or personal animosity.
7. Where the article, or publication, or movie, is based on prior published material, available in the public domain, which the plaintiff had not chosen at that time to impugn or challenge, no injunction could be sought by the plaintiff against the subsequent publication or movie, which was merely based thereon. That the prior publications, in which the information figured, were not public documents stricto sensu, made no difference. What was relevant was that the information was available in, and taken from, the public domain.
8. The plaintiff’s right to sue for damages would, nonetheless, continue to subsist even in such a case.
9. The right to publish, or disseminate information, even in the form of a movie, was guaranteed by Article 19(1)(a) of the Constitution of India. So long as the publication did not infract Article 19(2), the right was absolute.
10. The publisher of the allegedly offending information was not required to take permission of the representatives of the person about whom the publication was being made, before making it. Nor was he required to verify the truth of the contents thereof, provided it was earlier available in the public domain.
11. The fact that the plaintiff had also sought damages, and that the suit was awaiting trial, was also a factor which militated against injuncting, ad interim, dissemination of the allegedly offending publication, or telecast of the movie.
12. Publicity rights recognized the commercial value of the image or the persona of a person, and protected his proprietary interest in the profitability of his public reputation.
13. Proprietorial interest in the image and persona of the person concerned, leading to an enforceable right in the identity of such persona was the sine qua non to maintain a claim predicated on personality rights.
14. Reputation, personality, and privacy and personality rights that emanate therefrom, are not heritable.

2. "Celebrity rights" are only an avatar of personality rights, peculiar to "celebrities". The personality rights, if any, which vested in SSR did not devolve, consequent on his death, on the plaintiff and that they had, even otherwise, not been infracted, no separate claim for injunction, on the ground of violation of SSR’s "celebrity rights" can be said to subsist.
3. The Court observed as under – The concept of "celebrity rights", as a distinct compendium of rights available only to celebrities is, legally, I must confess, completely unacceptable to me. I have not come across any judicial authority, having binding precedential value on me, which lends judicial recognition to "celebrity rights". It does not appear permissible, in our constitutional scheme, which guarantees equality to individuals, and in which equality is a cherished preambular goal, to countenance an "extra" bundle of rights which would be available for enjoyment only to celebrities. The law cannot allow itself to be a vehicle to promote celebrity culture. Rights which emanate from one’s personality, and persona, would be available to one and all, and not only to celebrities. Rights which enure because of the special personal achievements of individuals are, of course, to be sedulously protected, and deserve recognition. That is altogether different from conferring, on an individual, additional rights merely because he, or she, is a “celebrity”. Celebrities, oftentimes, spring into being overnight, and vanish from the public eye just as quickly. Who can forget Rubina Ali and Azharuddin Ismail, the child actors who played the young lead performers in the celebrated ‘Slumdog Millionaire’ who, after an evening of glory, were found to have returned to the Mumbai slums, enmeshed in a spate of controversies? To fasten a legal right on something as fleeting as celebrity status, to my mind, appears an oxymoron.

[Krishna Kishore Singh v. Sarla A Saraogi & Ors., CS(COMM) 187/2021, I.A. 10551/2021 & I.A. 14436/2021; 11.07.2023, Delhi High Court]

Citations quoted:

1 2003 SCC OnLine Del

2 2012 SCC OnLine Del 2382

3 2015 SCC OnLine Mad 158

4 2010 SCC OnLine Guj 13952

5 296 S.E. 2d 697

6 (2017) 10 SCC 1

7 MANU/TL/0352/2020

8 AIR 2002 Del 58 : 2001 SCC OnLine Del 1030

9 AIR 2021 Mad 167

10 (1994) 6 SCC 632

11 MANU/DE/4370/2014

12 (2021) 87 PTC 20

13 AIR 2012 AP 78

14 2010 SCC OnLine Del 4790

15 2019 SCC OnLine Del 9022

16 (1995) 15 PTC 46

17 AIR 1982 MP 47

18 AIR 1961 AP 190

19 202 F 2d 866
20 447 F Supp 723

21 (2007) 6 Mad LJ 1152

22 (1986) 1 SCC 118