Broad 'Personality Rights' Claims Risk Free Speech; Satire, Memes & Fan-Work Deserve Protection: Amicus Gautam Bhatia Tells Delhi High Court

Amicus curiae, Advocate Gautam Bhatia, has told the Delhi High Court that a standalone claim for “personality rights” accompanied by a broad John Doe (unknown individuals) injunction is unknown to Indian law.

Bhatia has submitted that “personality rights” do not constitute a single cause of action giving rise to a uniform remedy such as a dynamic injunction and that the expression encompasses a bundle of distinct legal interests which may be protected through different causes of action and remedies.

Bhatia has made the submissions in his written statement filed by him as an amicus curiae in the suit filed by actor Janhvi Kapoor seeking protection of her personality rights.

According to Bhatia, Courts should disentangle an omnibus personality-rights claim into its constituent legal elements and examine what specific legal interest is being asserted, what harm is alleged, what remedy Indian law recognises for that harm and whether any countervailing rights or interests prevent the grant of relief.

“… at the first level, legal interests are disentangled into commercial and non commercial interests. Non-commercial interests are protected by existing torts of defamation and privacy, grounded within non-alienable, non-heritable human dignity and autonomy. Commercial interests, in turn, can be further divided into rights of publicity commercial misappropriation, passing off, and existing statutory intellectual property frameworks of copyright and trademark,” he has said.

He has submitted that it is more appropriate for Indian law to treat the right of publicity or commercial misappropriation as a tort, whose foundations are located in privacy and dignity, rather than a violation of an individual's property in their image.

Bhatia also relied upon the principles of passing off, submitting that commercial use may give rise to a claim where there is a misrepresentation or false suggestion of endorsement resulting in actionable harm.

However, he says that use of a publicly available image which does not amount to passing off, defamation or any other illegality should generally be permitted.

Further, Bhatia has said that non-commercial forms of expression, including satire, parody, memes and fan works, should generally receive protection, subject to limitations such as impersonation, passing off, defamation, privacy violations, obscenity and unauthorised commercialisation of copyrighted works.

He has submitted that claims for copyright and trademark should be dealt with under the respective statutory regimes.

“… the question of remedies can only come after the disentangling of a personality rights claim into its constituent parts. This is because the nature of the interests and harms will determine the nature of the remedy: over the years, courts and the common law have developed tailored remedies depending upon the specific nature of the claim,” he has said.

Bhatia has also argued that private information on matters of public interest is also protected under the right to free speech and expression and that the demonstration of public interest is fact-sensitive, and will depend on a case-by-case analysis.

The written submissions state that the property-based approach should be confined to statutory intellectual property rights such as copyright and trademark, rather than extended to create a broad common-law proprietary right over a person's image or persona.

“Granular examination of the constituent elements of a personality rights claim can then take into account the nature of the interest, the nature of the harm, the appropriate remedy, and the existence of countervailing rights and interests, each of which will go into the crafting of the final judicial order. In this way, courts can ensure that an appropriate degree of protection is accorded to an individual's ability to exercise control over their own image, while also vindicating crucial constitutional rights such as the freedom of speech and expression,” Bhatia has said.

He added, "The existence of parody, satire, and fanwork emphasise the importance of disentangling the dignitarian privacy-based elements of a personality rights claim, from the commercial elements, and also highlight the perils of adopting a property-based framework for the right of publicity. The running together of these elements risks broad injunctions that violate the right to free speech."

The matter was listed today before Justice Anup Jairam Bhambhani.

Bhatia concluded his submissions today, saying that if the content posted by fan clubs does not fall under any of the actionable wrongs flagged by him in his written submissions, including a situation where there is a simple use of a celebrity's image, it will not be a ground for injunction.

To this, Justice Bhambhani questioned if a photograph of a celebrity is clicked by a celebrity photographer or is taken from a movie poster, would it still be permissible?

Bhatia responded by saying that such situations will fall under the copyright and will have to be adjudicated by applying tests laid down under the copyright law and statutory provisions.

The matter is now listed tomorrow.

While Bhatia was appointed as amicus in Kapoor's suit, Advocate Rohan Alva has been appointed as amicus in actor Vivek Oberoi's case.