The Supreme Court while giving a liberal interpretation to Article 21 enshrined in the constitution of India and bringing the right to privacy within the fold of Article 21 envisaged it to be all-encompassing and largely unbridled. Of late, there has been a spate of decisions by several High courts , protecting personality rights of selected personalities. These judgements have veered away from the much-acclaimed element of universality in the right to privacy jurisprudence. The significance of the right to privacy and the need for commercial protection of artists is not to be discounted. Nonetheless, these recent judgements are bound to raise concerns when a fictional element of ‘celebrity status’ is inserted in order to determine the entitlement of personality right protection. High courts have, on multiple occasions, ventured into the exercise of weighing the commercial import a person holds; this sets a disconcerting trend of selective endowment of a right that otherwise should be available to every person with a public presence. The recent order of the Delhi High Court denying the relief of personality rights protection to YouTuber Bhuvan Bam while remarking that the relief sought is ‘uncalled for’ underlines the fault line wherein courts exercise their discretion to determine the commercial significance of the aggrieved person. However, there is no statutory basis for a classification between a celebrity and a rather less known person, nor can the rationale of these judgements be traced back to a judicial authority. A host of these judgements by courts, adopting the ‘celebrity-centric’ approach without a statutory or precedential edifice, leads to the potentiality of systemic inequality through judicial articulation and selective application.
Protection of Celebrity rights, a new trend
The Delhi High Court, on multiple occasions, granted the relief of personality rights protection under the rubric of what is called ‘publicity rights as celebrity’ or the ‘right of publicity.’ In the case of Titan Industries Ltd. v. Ramkumar Jewellers, where the issue pertained to the misuse of Amitabh and Jaya Baccchan’s photos by a jewelry enterprise without the authorization of Tanishq brand, which had exclusive rights to use their name for promotional purposes. The Delhi High Court, while protecting the exclusive right of Tanishq, authoritatively defined the term ‘celebrity’ and expounded on essential elements to fulfill the threshold of ‘unaided identification’. A celebrity was defined as a “well-known person that people know and talk about”. This subjective element of identifiability was wielded to decide if a person qualifies as a celebrity and is entitled to the court-ordered protection. The same principle was cited as precedent to protect the personality rights of Amitabh Bachchan in 2022. Similarly, in the case of Anil Kapoor v. Simply Life India, the court held that the defendants have prima facie used aspects of the actor’s personality, including the famous expression ‘Jhakas’, thereby making the actor entitled to personality right protection. The High Court used the rationale and principle propounded in the case of R. Rajagopal v. State of T.N, by the Supreme Court, famously known as the Auto Shankar case wherein the apex court was seized of the issue of pre-publication censorship by the jail authorities and thwarting the right of the petitioner therein to publish an autobiography of a prisoner who had alleged links to certain police personnels. In a detailed exposition of law, the Supreme Court put the issue of right to privacy and right to publish, on the basis of material available in public record to rest.
In order to reach the aforementioned conclusions, the courts have read into the judgement in the Auto Shankar case and paid heavy consideration to the commercial value of one’s personality. The Supreme Court categorically held that the right to privacy is a right guaranteed to every citizen of the country; as a result, everyone is protected from any material being published or aired without their express authorization, unless that material is already in public records. The Supreme Court heralded the right to privacy jurisprudence in Puttaswamy v. Union of India judgement and held that the right to privacy is a fundamental right and comes within the ambit of Article 21 of the constitution. Therefore, the fulcrum of both these judgements is that right to privacy, a right that shields one’s personality from any adverse use, is a guaranteed right that the constitution bestows upon every citizen. The definitions and principles laid down by the Delhi High Court in Titan Industries Ltd. v. Ramkumar Jewellers, fail to provide an objective or a constructive criterion to determine the ‘celebrity status.’ The phrases coined, like ‘well-known’ ‘people talk about’, are extremely ambiguous and confounding. Furthermore, the classification created by the court, premised on the popularity of an aggrieved personality, does not have a statutory basis. The rationale adopted in these judgements can at best be said to have some semblance with the performer rights in the Copyright act. However, the publicity rights and performer rights under section 37 and 38 of the act are on a fundamentally distinct footing on two counts. One, the scope of section 38 is narrow since it only grants protection with regard to the performance made by an artist. Second, there is no classification on the basis of popularity or commercial import of the performer, every performer, notwithstanding these subjective factors, is entitled to the protection envisaged under section 38. Other statutes akin to the Information and Technology Act 2000 and rules formed pursuant to the enactment have reactionary provisions and do not provide an overarching protection of one’s personality.
Celebrity-centric approach and implications on Equality
The Supreme Court of India, in the case State of W.B. v. Anwar Ali Sarkar, gave a seminal judgement on reasonable classification and right to equality. Supreme court exposited that any doctrinal or policy-based classification should be reasonable and pass the test of intelligible differentia to withstand the anvils of right to equality under Article 14 of the constitution. It was held that any arbitrary classification would be antithetical to the essence of article 14. The doctrine of celebrity rights, as evolved through the aforementioned judgements, places celebrities on a higher pedestal without any reasonable basis. In fact, through express judicial articulation, a separate class of personalities, exclusively entitled to a blanket protection, is created, which otherwise every personality with a public presence should be entitled to. The fictional and subjective concept of celebrity is an exclusionary one and does not fulfill any object over and above the protection envisaged in Rajagopal v. State of T.N. Rather, it narrows down the all-encompassing purview of the supreme court judgement to a celebrity-centric judicial doctrine. The fault lines of the celebrity-centric approach can play out as denial of the same to small artists. As seen recently, when the Delhi High Court denied giving personality right protection to Bhuvan Bam as granted to other celebrities. Assuming this to be the continuing approach, a new creator will never be entitled to such relief, thereby making them susceptible to adverse usage of their creation. Judgements pertaining to celebrity rights are not only premised on vague and arbitrary grounds but also fail to appreciate the liberal interpretation of the right to privacy by the Supreme Court in umpteen of judgements. The fictional creation of ‘celebrity rights’ truncates the liberal scope of right to privacy and increases the likelihood of excluding artists and creators in nascent stages. Therefore, the disparate application the ‘celebrity-centric’ approach will be violative of the principles of equality.
Conclusion
As we usher in the AI age, where artificial intelligence pervades every facet of one’s life, it is imperative to develop a statutory and protective edifice on which individual growth can be founded. With the advent of advanced AI, everyone who has an online presence, regardless of their stature, is susceptible to misuse and misappropriation of content. The recent trend of granting blanket protection to public figures is a significant stride in the personality rights discourse. However, there are certain fundamental concerns about the manner in which the courts have tackled this new age predicament. The essence of the right to privacy lies in the element of universality i.e., every citizen of the country is entitled to constitutional protection in equal measure. The fiction of ‘celebrity rights’ goes against the idea of universality because a ‘celebrity’ by definition is placed on a higher pedestal than an ordinary citizen or artist. The continued use of this approach can render new creators without a blanket protection of personality rights that the celebrities are entitled to. In that case, personalities of relatively lower stature will have to resort to case-to-case remedies by approaching the courts. Therefore, the need of the hour is to make a statutory enactment that protects the personality of each and every person with a public presence. It is a matter of paramount importance till then that the courts should not adopt an arbitrary approach that creates an unfounded distinction and fails to pass muster with the constitutional requirements. It is the necessity of the times that we live in that the courts should act as a vanguard, protecting not only the entitled but everyone from all forms of personality misuse.
Written by: Sankalp Guru
Author is a second-year law student at Jindal Global Law School, Views expressed are personal.
