[This post has been authored by SpicyIP intern Kaustubh Chakrabarti. Kaustubh is a second year BA.LLB. (Hons.) student at Hidayatullah National Law University, Raipur. His previous posts can be accessed here.]
In recent times, the Delhi High Court has been spewing out decisions involving the Personality Rights of celebrities. We had the Anil Kapoor decision last year and similar rulings followed in 2024 dealing with the rights of Jackie Shroff, Vishnu Manchu, Arijit Singh. This post will primarily focus on two such orders passed in the previous week to protect the personality rights of television journalist Rajat Sharma and Telugu film actor Mohan Babu.
Rajat Sharma Case and the Menace of Deepfakes
In the former order (pdf), Rajat Sharma and his company, M/s Independent News Service Private Ltd. (operating as ‘INDIA TV’), sought a permanent injunction restraining infringement of his personality and publicity rights. They contended that the defendants are perpetuating gross misinformation by running fraudulent medicinal drug advertisement campaigns through wrongful use of Artificial Intelligence and are creating deepfakes by distorting images, voice, and other personality traits of Rajat Sharma. The defendants were also alleged to be unauthorisedly infringing the registered trademarks of his company. The Court gave time to the defendant to file a reply and in the meanwhile restrained the defendants from directly or indirectly misusing and exploiting the name, likeness, image, etc. of the plaintiff and also from using the registered trademarks of the company.
Earlier this year, Rajat Sharma had also moved a Public Interest Litigation against the absence of legal mechanism to regulate deepfake technology in India and to mitigate its potential misuse. The Delhi High Court had issued a notice to the Union Government seeking a response on this matter. Reportedly, the Ministry of Electronics and Information Technology (‘MeitY’) stated that it was funding two research projects aimed at detecting fake videos, audio, and images generated using AI. Furthermore, a 9-member committee was also constituted by the ministry to address deepfakes. It remains to be seen what the research outcomes and committee findings will be and how they ameliorate the current ecosystem.
Unlike other avenues of unjust enrichment through commercial exploitation of a celebrity’s persona, medicinal drug campaigns also have a dimension of public interest and public accountability. India is also a party to The Bletchly Declaration that aims to prevent the ‘catastrophic harm, either deliberate or unintentional’ that arises from the use of AI. In its furtherance, India should look to draft policies that aim at increasing transparency and providing protection against unauthorized use of one’s persona in the public interest. Towards the need for more robust policy measures, the Meity in its 2023 advisory directed social media intermediaries to undertake expeditious action as per the timeframes stipulated under the IT Rules 2021 to identify and disable access to deepfakes. In a similar vein, MeitY had issued a due diligence-related advisory in March 2024, that required all intermediaries and platforms to label any undertrial or unreliable AI models, and to secure prior government approval before such models could be deployed. This instigated wide public outcry and the MeitY was compelled to reconsider. Union Minister Rajeev Chandrasekhar later clarified that the advisory was primarily intended for large tech platforms and not startups. However, the MeitY finally gave way and brought out a new advisory replacing the old one that did away with the requirement of prior government approval. Instead, the concerned AI models were to be made available to the users only after ‘appropriate labelling of the possible inherent fallibility’ of the generated output.
Mohan Babu Case: Curious Case of Including Subscribers under Interim Injunctions
Likewise in the latter order (pdf), Mohan Babu filed for permanent injunction restraining defamation, copyright infringement, misappropriation of personality/ publicity rights, passing off, etc. As in the previous case, it was again contended that the defendants were making use of artificial intelligence to morph the image and voice of the plaintiff and create images and/or audio-video clips, which were supposedly “not in good taste”. The Court again restrained the defendants from infringing the plaintiff’s personality rights and publishing any defamatory content.
However, the latter order seems to provide a very broad remedy to the actor. The Court has roped in even the subscribers of the defendants’ YouTube channels within the scope of the ex-parte ad interim injunction order. This technically means that the subscribers (who may run in millions) have also been regarded as agents and/or associates of the defendants. Consequently, the order can be put to stifle the right to free speech and expression of these subscribers. This is a problematic interpretation as even innocuous sharing of impugned videos could lead to persecution of the subscribers. The relief granted by the Court also restrains the subscriber from even using the name or image of the actor. This makes one wonder if this could prevent creators, (who have subscribed to the defendant’s YouTube Channels) from putting out commentaries and review videos using Mohan Babu’s name. Also, the injunction is a bit vague when it comes to its execution with respect to the subscribers. A subscriber has the option of unfollowing the YouTube channel and he may then create and publish misappropriating content. Would this then exempt him from liability as he is no more a subscriber? Thus, this aspect of imposing restrictions on the subscribers for the actions of the YouTube channel that they follow and vice versa should be reconsidered by the Court in the subsequent hearings.
It has been argued previously on the blog that while courts extending protection to the personality rights of celebrities is a welcome step, this protection should not have an overarching effect by being offered as an absolute right to control everything about one’s personality. The rights of third parties, too, need to be protected with respect to fair use covering mime, research/educational advancement, criticism, etc. It has also been said that courts should not solely resort to the right to livelihood to protect personality rights as the livelihood rights of a celebrity should not take precedence over the creative expression of people in the form of satire, parody, etc. as this would constitute a threat to free speech (see here, here, here and here for the analysis done on the blog previously by Dr. Bharti, Aditya, Aarav, Praharsh and Yukta). As more celebrities join the bandwagon, it is imperative for the courts to draw a fine balance between personality rights and free speech to make sure that a suit lies not at the annoyance of a celebrity on being made fun of but only when there is actual harm to his reputation.