Personality Rights - Balancing Right To Privacy And Freedom Of Press

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:44:06.530465+00:00

Updated: 2026-08-26T17:10:10.504+00:00

PERSONALITY RIGHTS: BALANCING RIGHT TO PRIVACY

AND FREEDOM OF PRESS

Sanjana Balaji & Aakarshna CG, B.B.A. LL.B. (Hons) at School of Law, SASTRA Deemed University, Tirumalaisamudram, Thanjavur.

ABSTRACT:

Personality rights have been a subject of various discussions, owing to a recent decision wherein the Hon’ble High Court of Delhi passed an omnibus order restraining the defendants from infringing upon Mr. Amitabh Bachchan’s personality or celebrity rights by misusing his name, likeness and other personality traits and attributes, for commercial gain. This paper aims to examine the complex interplay between personality rights, right to privacy and freedom of speech and expression. Celebrities are often viewed as people of importance and the media finds it necessary to delve into minute details of such people’s lives. The individual’s right to privacy has taken a backseat with the increasing presence of social media and the constant updates of these details on various media platforms, leading to a conflict between the right to privacy and freedom of speech and expression.

This paper will deal with the various perceptions and legal frameworks governing personality rights in India and internationally. It will examine how different jurisdictions address the protection of individuals' identities and personal attributes, especially in the context of media coverage. Additionally, the paper will explore the role of public opinion and the ethical standards that media organizations are expected to adhere to when reporting on celebrities. The primary question is whether celebrities, due to their public status, should have the right to protect and control the use of their personal identity and aspects of their personality from potential misuse. This paper aims to address whether the heightened visibility of celebrities justifies a greater need for privacy protection or if their public status inherently diminishes their right to control their personal information.

Keywords: personality, privacy, media, freedom of press, infringement

1. INTRODUCTION

1.1. Personality Rights

Personality rights refer to an individual’s right to protect their personality, which is a facet of the broader right to privacy or property. These rights encompass various aspects of one’s public persona including their name, voice, signature, images, distinctive features, mannerisms, poses and the like. Personality rights generally refer to two types of tort-based rights: the right to privacy and the right of publicity. The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, says, acts, and to personal relation, domestic or otherwise. 1 On the other hand, the right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona.

It gives an individual the exclusive right to license the use of their identity for commercial promotion. 2 In India, the idea of personality rights has grown in importance due to the emergence of celebrity culture and the media's widespread influence. The concept gained traction after a ruling in the case of Amitabh Bachchan v. Rajat Negi and Ors. ,3 wherein the Delhi High Court issued an ex-parte ad interim order in 2022, recognizing and protecting Amitabh Bachchan's personality rights. The court restrained the defendants, including unknown parties, from misusing his name, image, voice, and other attributes for commercial purposes, following allegations of misuse in fake Kaun Banega Crorepati game shows and lottery scams circulated via WhatsApp. Another recent ruling in the case of Jackie Shroff v. The Peppy Stores & Ors.

,4 by the Delhi High Court has raised a great deal of awareness on personality rights in India. The Court's ruling to prohibit several organizations—such as social media accounts, AI chatbots, and online retailers—from using the actor's name, image, and voice without his permission emphasizes how increasingly crucial to safeguard a person's identity and reputation.

1 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 213 (1890).

Research guides: Intellectual Property Law: Personality Rights (no date). https://lawresearchguides.cwru.edu/IP/personality-rights.

3 Amitabh Bachchan v. Rajat Negi and Ors., [CS(COMM) 819/2022].

4 Jaikishan Kakubhai Saraf alias Jackie Shroff v. The Peppy Store & Ors., CS(COMM) 389/2024.

1.2. Freedom of Press

The rights granted by Article 19(1)(a) of the Indian Constitution regarding the freedom of expression of speech are referred to as freedom of the press or media. By allowing people to express their views, whether in favour of or against the government's policies, it fosters independent media and democracy. Some of the rights granted to the media as part of their freedom of press include but are not limited to freedom of speech and expression, right to publish and circulate, receive information, conduct interviews, report court proceedings and to advertise.

1.3. Significance of Balancing Rights

Balancing the right to privacy and the right to freedom of expression is essential in maintaining a fair and democratic society. Privacy protects individuals’ dignity, autonomy, and personal choices by shielding them from unwarranted intrusion. On the other hand, freedom of expression fosters open dialogue, enabling the exchange of diverse ideas and opinions. Striking this balance ensures that personal information is not misused while preventing freedom of expression from leading to harm, such as defamation or misinformation. It also encourages responsible journalism, allowing the media to report on matters of public interest without infringing on individuals' privacy. Legal and ethical frameworks play a crucial role in achieving this balance, ensuring that neither right is unduly compromised.

This delicate equilibrium is vital for safeguarding individual rights while promoting a society that values open communication and accountability.

2. LEGAL FRAMEWORK FOR PERSONALITY RIGHTS

2.1 International Framework

Several international conventions and treaties have mentioned about the importance of fundamental respect and freedom for an individual’s personal life, liberty and privacy, including the European Convention on Human Rights and the United Nations’ guidelines on privacy.

2.1.1 European Convention on Human Rights

Article 8 of the European Convention on Human Rights states that “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the

interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”5

2.1.2 United Nations’ Guidelines on Privacy

The Principles on Personal Data Protection and Privacy set out a basic framework for the processing of personal data by, or on behalf of, the United Nations System Organizations in carrying out their mandated activities. These Principles apply to personal data, contained in any form, and processed in any manner. Where appropriate, they may also be used as a benchmark for the processing of non-personal data, in a sensitive context that may put certain individuals or groups of individuals at risk of harms. The Principles aim to harmonize standards for the protection of personal data across the UN System, facilitate the accountable processing of personal data and ensure respect for the human rights and fundamental freedoms of individuals, in particular the right to privacy6

2.2 National Legal Systems

Different countries have adopted different ways of dealing with personality rights, out of which a few systems are explained as under.

2.2.1 United States of America

The U. S. legal system comprises federal and state law, with federal law applicable across all 50 states, while state law governs individual states. Publicity rights, regarded as an assignable property interest in a person’s image, are rooted in privacy and the prevention of economic exploitation. In the U. S. , individuals can protect and control the commercial use of their name, image, and likeness through federal law, such as the Lanham Act, or state-specific publicity rights. An instance of a state-specific right would be how in Ohio, the right of publicity is governed by statute Ohio Revised Code Chapter 2741, which prohibits the use of an individual's persona for commercial purposes without consent. This protection applies 5 European Convention on Human Rights - Article 8 (2022). https://fra. europa.

eu/en/law-reference/europeanconvention-human-rights-article-8- 0#:~:text=1%20Everyone%20has%20the%20right,his%20home%20and%20his%20correspondence. 6 Personal Data Protection and Privacy | United Nations - CEB (no date). https://unsceb. org/privacyprinciples#:~:text=The%20Principles%20aim%20to%3A%20(i,particular%20the%20right%20to%20privacy.

during the individual's lifetime and extends for 60 years after their death. Additionally, for deceased members of the Ohio National Guard or the U.S. armed forces, the protection lasts for 10 years following their death. In the United States, the development of publicity rights for celebrities has closely intertwined with the evolution of privacy rights, shaped by both legal precedents and cultural shifts. The right of publicity, which grants individuals control over the commercial use of their name, image, and other personal attributes, began to gain formal recognition in the early 20th century. This right ensures that celebrities can protect and monetize their public persona, preventing unauthorized exploitation for commercial gain. A landmark case in this area was Haelan Laboratories, Inc. v. Topps Chewing Gum,

Inc. ,7 which set a critical precedent. Haelan Laboratories, a chewing gum manufacturer, had signed exclusive contracts with baseball players to use their images on collectible cards, aiming to boost sales. However, rival company Topps Chewing Gum induced the players to allow the use of their photographs for Topps' products during the contract period, violating Haelan's exclusive rights. The court rejected the argument that the players only had a privacy right, asserting instead that they possessed a distinct "right of publicity. " This right allowed them to control the commercial use of their likenesses independently of privacy concerns. The ruling emphasized that a person could have a legitimate interest in the economic value of their public image, separate from privacy rights.

This case laid the groundwork for the legal recognition of publicity rights, establishing an important principle that continues to shape celebrity rights and commercial practices today.

2.2.2 Europe

In the United Kingdom, the recognition of publicity rights for celebrities is a relatively recent legal development. Traditionally, English law focused on protecting individuals' reputations through defamation laws, with little emphasis on privacy. A significant shift occurred in the early 21st century with the landmark case of Douglas

v. Hello! Ltd, which dealt with the unauthorized publication of photographs from a celebrity wedding. This case was a turning point, highlighting the need to protect

7 Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F. 2d 866, 346 U.S. 816 (1953)

individuals’ privacy from intrusive media practices. It underscored that celebrities, like anyone else, have a legitimate expectation of privacy concerning certain aspects of their personal lives. The Human Rights Act of 1998, which incorporated the European Convention on Human Rights into UK law, further strengthened privacy protections. Article 8 of the Convention, which guarantees the right to respect for private and family life, became a fundamental legal basis for the protection of privacy in the UK. Complementing this, the General Data Protection Regulation (GDPR) plays a pivotal role in the modern era by setting strict rules on the collection, processing, and use of personal data.

The GDPR emphasizes principles such as consent, transparency, data minimization, and the right to be forgotten, empowering individuals to maintain control over their personal information in an increasingly digital world. In addition to privacy, European laws address the protection of reputation and the right to one's image. Defamation laws, though varying across member states, generally aim to protect individuals from false or harmful statements that could damage their reputation. Courts across Europe often find themselves balancing this protection against the right to freedom of expression, particularly in cases involving the media or matters of public interest. The right to control one's image is also widely recognized, protecting individuals from unauthorized commercial exploitation or misuse of their likeness.

The European Court of Human Rights (ECtHR) plays a crucial role in interpreting and enforcing these rights, frequently resolving conflicts between personality rights and freedom of expression. The court applies a proportionality test, considering factors such as the nature of the information, the role of the individual involved (whether a public figure or a private person), and the context in which the expression occurs. This jurisprudence influences national courts, helping to harmonize the application of personality rights across different European countries. National legal systems, such as those in Germany and France, also contribute uniquely to the protection of personality rights. Germany places a strong emphasis on human dignity and personal honour, with extensive privacy protections.

France, rooted in its civil law tradition, provides robust rights to privacy and personal image, often resulting in significant court rulings on these matters. Overall, the European approach to personality rights seeks to protect individuals from

undue intrusion into their private lives while ensuring that societal interests, such as freedom of expression and the public's right to be informed, are not unduly hindered. This delicate balance is maintained through a combination of legislative frameworks, national legal traditions, and the influential case law of European courts.

2.2.3 India

India's legal framework for personality rights is a complex mosaic rather than a unified law. The right to privacy, to begin with has been recognized as a fundamental right under Article 21 of the Constitution of India in the landmark judgment in Justice K. S. Puttaswamy v. Union of India8. This serves as a cornerstone for safeguarding individuals, especially celebrities, from unauthorized commercial exploitation of their persona. The Copyright Act, 19579 grants authors and performers moral rights over their creations. Section 5710 allows authors to assert their ownership and prevent distortion of their work, while Sections 38, 38A, and 38B11 grant performers rights over their performances, including credit and protection against reputation-damaging modifications.

These provisions align with personality rights, allowing individuals to control the use of their identity tied to their creative works. Similarly, the Trademark Act, 199912 provides that personal identifiers like names, voices, and mannerisms can be trademarked, preventing unauthorized commercial use. Section 14 restricts the registration of names without consent, while Section 2(m) includes "names" in the definition of trademarks, enabling celebrities to protect their identity. The recent case of PV Sindhu illustrates this, where action was taken against unauthorized commercial use of her image. In addition to the above, the legal principle of passing off protects individuals from unauthorized use of their identity that could mislead the public into believing they are associated with a particular product or service.

This offers a legal remedy against exploitation that could damage a person's reputation or misrepresent their endorsement.

8 (2017) 10 SCC 1, AIR 2017 SC 4161

9 https://www.copyright.gov.in/Documents/Copyrightrules1957.pdf

10 Supra 8

11 Supra 8

12 https://ipindia.gov.in/writereaddata/Portal/ev/TM-ACT-1999.html

3. MEDIA AND FREEDOM OF PRESS

The media often assert that Article 19 of the Indian Constitution, which guarantees "Freedom of the Press," grants them the right to gather and publish information about celebrities, particularly when it pertains to matters of "public interest" or "public concern." However, celebrities and public figures have raised objections, arguing that this infringes on their right to privacy and intrudes upon their personal lives. Every individual has the right to safeguard their personal life and control how they are perceived by the public. No third party should have the authority to exploit a person’s identity for commercial purposes without their explicit consent.

3.1 Factors contributing to Media Overreach

The title of media can be read extensively to include social media within the ambit as well. The increasing ‘worship culture’ has made it seem absolutely necessary for the media to report every bit of what goes on in a celebrity’s life. Essentially, a celebrity is defined as an individual well known for their well-knownness. 13 This worship culture involves various activities by people who admire and worship such celebrities beyond a practical limit while indulging in practices such as taking an effort to read personal details about their lives, purchasing souvenirs connected to such celebrity and conversing with people around them who also share a love for the same person.

Worship culture takes shape in various forms such as dressing up for movie screenings, as seen in the case of Barbie or performing palabhishekam by pouring milk on massive cut-outs of stars like Akshay Kumar and Jr NTR and has become increasingly common and almost routine in the recent times. Owing to the constant fascination for such individuals and the commercial gain involved simply by reporting facts of their lives, the media deems it fit and almost necessary to constantly evade the privacy of celebrities and collect information about their personal lives. These ‘tidbits’ collected and published receive positive responses from the audience due to the which the media and press resort to several unethical ways to obtain such information, going to the extent of almost stalking them every time they do so much as step out of their homes.

13 Jitu (2023) The Fundamentals of Celebrity Worship - Amratha Lekshmi A J - Doing Sociology.

https://doingsociology.org/2023/10/01/the-fundamentals-of-celebrity-worship-amratha-lekshmi-a-j/.

In today’s uncertain and rapidly changing world, the responsibility of media organizations to ensure accountability among their journalists is more crucial than ever. These organizations must provide their journalists with the necessary resources, training, and support to uphold the highest standards of responsible and ethical journalism. This includes fostering an environment where thorough research, diligent fact-checking, and adherence to ethical reporting practices are prioritized. Journalists have a fundamental duty to serve the public interest by delivering accurate, wellresearched information that informs and educates. In an era where sensational headlines and clickbait content often dominate the media landscape, it is vital for journalists to resist the temptation to prioritize profit-driven, sensationalist reporting.

Instead, their focus should be on producing content that upholds the truth, fosters informed public discourse, and maintains the integrity of the profession. By doing so, they contribute to a well-informed society and help build trust in the media, which is essential for a healthy democracy.

3.2 Case Studies

3.2.1 Posthumous Privacy and Personality Rights

In the case of Deepa Jayakumar vs A. L. Vijay and Others (2019)14, the applicant, the niece of Dr. J. Jayalalithaa, the former Chief Minister of Tamil Nadu, filed a case against respondents who had acquired the rights to produce a film titled Thalaivi and a web series named Queen, both based on the life of Dr. Jayalalithaa. The applicant sought an interim injunction to prevent the release of these productions, arguing that they infringed on her late aunt's posthumous privacy and personality rights. She claimed that her consent was necessary for the release of any works portraying her aunt's life. The court examined whether the applicant’s familial connection gave her the legal standing (locus standi) to enforce posthumous privacy and personality rights.

It ruled that while the applicant had a personal interest, she did not provide sufficient evidence to establish her legal entitlement to enforce such rights on behalf of her late aunt. The court noted that without clearer legal grounds, the applicant could not claim enforceable rights over her aunt's portrayal. The court also addressed the nature of the productions, acknowledging that they were inspired by real-life events but included

14 2019 SCC OnLine Mad 39281

fictional elements. This raised the question of whether artistic expression could supersede concerns about posthumous privacy. The case highlighted the complex legal issues surrounding posthumous privacy and personality rights, particularly in media portrayals of public figures. It emphasized the need for a nuanced approach that respects both the rights of individuals, even after death, and the freedoms of artistic and creative expression. The ruling set an important precedent for how such conflicts might be handled in future cases under Indian law, balancing privacy rights with freedom of expression.

3.2.2 Resemblance of Fictional Work

In the case of Ramgopal Verma & Ors. Vs. Perumalla Amrutha15, the respondent filed a lawsuit seeking a perpetual injunction to prevent the appellants from releasing a film titled Murder, which she claimed was based on her life events, including her marriage, her husband’s murder, and subsequent family tragedies. She argued that the appellants gathered information about her and her deceased family members without her consent and intended to depict these events, causing her mental anguish and public embarrassment. The appellants contended that the events were in the public domain, documented in public records and media coverage, giving them the right to create a fictional film without infringing on her privacy. The court recognized that the respondent's marriage, her husband's murder, and the ensuing legal proceedings were extensively reported and part of the public record.

It held that the right to privacy is diminished when events become publicly known. Balancing the respondent's privacy concerns with the appellants' freedom of expression, the court ruled that the film was a creative interpretation of public events rather than a direct invasion of her privacy. The court conditionally allowed the appeal, lifting the lower court's injunction but imposed strict conditions. The appellants were prohibited from using the respondent's name, her deceased husband's name, or her deceased father's name in the film or related materials. They were also required to include a disclaimer stating that the film is a fictional work and any resemblance to real-life events is purely coincidental. The ruling referenced the Supreme Court’s decision in R. Raja Gopal v. State of Tamil Nadu16, reaffirming that while individuals

15 2020 SCC OnLine TS 3018

16 1994 SCC (6) 632

have a right to privacy, this right is limited when the events are part of the public domain, with certain exceptions. The case highlights the delicate balance between protecting an individual’s privacy and safeguarding the freedom of artistic expression, providing guidelines for future disputes over the portrayal of personal tragedies in media and entertainment.

4. BALANCING PRIVACY AND FREEDOM OF EXPRESSION

The border between a robust exercise of freedom of expression and proper protection of the right to privacy has been a matter of intense judicial scrutiny by numerous courts around the world. The number of cases where tensions arise between the right to privacy and freedom of expression is substantial. In some instances, even tribunals with strong, well-respected traditions have reached differing conclusions. However, in all significant cases, courts have consistently considered two key criteria: the public interest in the information—whether it involves a public official, a public figure, or matters relevant to public discourse—and the extent to which privacy is impacted. This latter consideration focuses on the source of the information, the way it was obtained, and the nature of the content itself.

Conflicts between privacy and freedom of expression commonly arise where non-State actors, such as the media or authors of books, publicise private matters. Publishers may claim that the revelations were a matter of public interest or that the individuals involved had forfeited their privacy interest by leading very public lives. The legitimacy of these claims has been tested in several cases in countries which provide legal protection for privacy. In such cases, courts have had to balance privacy interests against constitutional or international guarantees of freedom of expression.

4.1 Tests for Balancing Rights

Privacy laws, where they restrict freedom of expression, must meet the three-part test for such restrictions outlined by the European Court.17 In particular, the restriction must be “necessary in a democratic society” in the sense that it serves a pressing social need, the reasons given to justify it are relevant and sufficient and it is proportionate to the legitimate aim pursued.18 In particular, States are obliged to ensure that the measures adopted to serve

17 See Lingens v. Austria, 8 July 1986, 8 EHRR 103, para. 35.

18 Sunday Times v. United Kingdom, 26 April 1979, 2 EHRR 245, para. 62. These standards have been reiterated in many cases.

a legitimate aim are carefully designed do not go beyond what is necessary to achieve the objective.19

4.1.1 Chilling Test

When evaluating privacy laws as limitations on freedom of expression, courts must consider more than just the specific interests of an individual case; they must also account for the broader impact on freedom of expression. Courts need to assess whether adopting a particular standard or approach could discourage the media from publishing information that serves the public interest in the future. This phenomenon, known as the "chilling effect," is widely recognized by courts globally, including the European Court. The chilling effect occurs when restrictions not only suppress harmful expression but also create a buffer zone around the prohibited area, causing journalists and editors to avoid it altogether to prevent potential legal consequences.

As a result, courts often conclude that it is preferable to allow some excesses in expression, even if they may cause harm, rather than risk curbing publications that benefit the public interest.

4.1.2 Public Interest

Courts have recognized four types of privacy interests that merit protection: unwarranted intrusion into someone’s solitude, appropriation of an individual’s name or likeness, publicity that portrays someone in a false light, and excessive publicity about a person’s private life. Conflicts with freedom of expression most frequently arise concerning the appropriation of someone’s name or likeness and undue publicity about private life. In such cases, the central question is whether the publication can be justified as being in the public interest. To prevent a chilling effect, the concept of public interest must be interpreted broadly, ensuring that journalists and editors are not compelled to make overly fine distinctions, which could hinder the flow of important information to the public.20

4.2 Judicial Interpretations of Balancing Rights

There have been rulings wherein courts have attempted to balance the right to privacy of an 19 Significantly, in Observer and Guardian v. United Kingdom, 26 November 1991, 14 EHRR 153, the Court held that a UK ban on publication of material affecting national security was legitimate before the material had been published in the United States but ceased to be legitimate once the material was effectively available in the UK

20 https://www.article19.org/data/files/pdfs/publications/freedom-of-information-foi-vs.-privacy.pdf

individual as against the right to freedom of press and expression of the media. In the case of Von Hannover v. Germany, the European Court of Human Rights (ECtHR) held that the publication by tabloid magazines of a series of photos of Princess Caroline of Monaco, taken without her knowledge and showing scenes from her daily life, violated her right to privacy and family life as enshrined in Article 8 of the European Convention on Human Rights (ECHR).

The Grand Chamber of the ECtHR, in a 12-to-5 ruling in the case of Axel Springer AG v. Germany21, found that Germany had violated the applicant's right to freedom of expression by fining a magazine and banning further publication of articles about an actor's arrest for cocaine possession. The actor had claimed the magazine infringed on his right to privacy. The Court concluded that the articles reported on public judicial facts obtained from official sources about a well-known individual’s arrest in a public place for a minor, common offense. It deemed the sanctions, though mild, unnecessary in a democratic society and disproportionate to the legitimate aim pursued.

The Court also outlined six criteria for balancing freedom of expression with the right to privacy: (1) contribution to a debate of general interest, (2) the public figure status of the subject, (3) the subject's prior conduct, (4) the method of obtaining the information and its accuracy, (5) the content, form, and impact of the publication, and (6) the severity of the imposed sanction. In the case of Mephisto22, the Federal Constitutional Court of Germany upheld a lower court's decision to issue an injunction banning the publication of the novel Mephisto in West Germany. The novel, which depicts the fictional story of Hendrik Höfgen—a talented actor who collaborates with the Nazi regime to further his career—was based on the real-life actor Gustaf Gründgens.

In 1963, Gründgens' adoptive son, Peter Gorski, initiated legal action against the publishing house Nymphenburger Verlagshandlung to block the novel’s publication. The Court acknowledged that while artistic freedom is protected under the German Constitution, the right to dignity, as enshrined in the Constitution, justified the protection of Gründgens' personality rights, thereby upholding the publication ban. In Flinkkilä v. Finland23, the European Court of Human Rights (ECtHR) ruled that Finland had violated Article 10 of the European Convention by penalizing editors and journalists from two magazines. The Finnish courts had imposed fines and damages on them during

21 AXEL SPRINGER AG v. GERMANY (Application no. 39954/08)

22 BVerfGE 30, 173

23 Flinkkilä and Others v. Finland - 25576/04

criminal proceedings for publishing articles that revealed the name and identity of B, the female friend of the National Conciliator, and detailed their involvement in a violent altercation. The national courts deemed these publications an unjustified intrusion into B’s privacy. However, the ECtHR found that, while the interference with the journalists' freedom of expression was lawful and aimed at a legitimate purpose, it was disproportionate and not necessary in a democratic society. This was because B’s identity had already been disclosed on national television, the articles addressed matters of public interest, and the sanctions imposed were excessively harsh.24

5. IMPACT

OF

SOCIAL

MEDIA,

TECHNOLOGY

AND

ARTIFICIAL

INTELLIGENCE

In the digital age, the misuse of an individual’s image or identity has reached unprecedented levels. Unauthorized deepfakes—manipulated videos or images that alter a person’s likeness—pose significant threats to personality rights, raising ethical and legal concerns about consent and representation. Social media platforms frequently grapple with identity theft cases, where individuals create fake profiles using another person’s name and image, constituting a clear violation of personality rights. Furthermore, the rise of influencer marketing has brought attention to the importance of these rights. Brands must navigate complex legal frameworks when partnering with influencers, ensuring they respect the right of these individuals to control their image and likeness.

As the digital landscape continues to evolve, it becomes increasingly essential for all stakeholders—individuals, brands, and legal entities—to understand and uphold personality rights in order to protect personal identity and integrity. The creative industries have undergone significant transformation due to the rapid advancements in generative artificial intelligence (AI), particularly concerning intellectual property rights, which raises ethical and legal questions. One of the emerging issues is related to "personality rights," including ownership, ethical licensing, and copyright infringement. The increasing use of generative AI (GAI) tools has sparked concerns about the authenticity of a celebrity's persona. AI can produce near-exact replicas of a celebrity's image and voice, creating content that is often indistinguishable from official endorsements.

24 Bollinger, L.C. and Botero-Marino, C. (2023) SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM

OF EXPRESSION. Edited by Juan Manuel Ospina et al. https://globalfreedomofexpression.columbia.edu/wpcontent/uploads/2023/01/Privacy-and-Freedom-of-Expression-4.pdf.

For instance, Indian actor Anil Kapoor has requested that unauthorized parties refrain from using his name, voice, and likeness. 25 A court ruling supported this request, prohibiting the unauthorized use of his persona for commercial gain and mandating that specific domains be blocked. Similarly, actor Tom Hanks recently cautioned his followers about an AIgenerated version of himself featured in an advertisement, reflecting Hollywood's growing anxiety over the unapproved use of AI-generated likenesses, which threatens their careers and earnings. The proliferation of AI-generated deepfakes has prompted leaders and policymakers to call for regulation to address the risks associated with this technology. The case of Scarlett Johansson and OpenAI exemplifies the need for clear boundaries in AI development, particularly regarding speech data management.

Johansson accused OpenAI of profiting from an AI voice resembling hers, to which OpenAI responded that it was merely a coincidence. As questions about ownership and authorship arise from GAI-generated works—especially since American systems are trained on numerous existing works—most intellectual property offices currently deny protection to such creations, despite potential claims from artists regarding the system's role in the creative process. To address these issues, the ELVIS Act aims to amend the Tennessee Personal Rights Protection Act by recognizing “voice” as a protected aspect of likeness and establishing penalties for unauthorized use of an artist’s voice while allowing for fair use under copyright law.

This legislation could set a precedent for regulating AI in artistic expression, but its success will depend on effective enforcement and the clarity of what constitutes unauthorized use.

5.1 AI and Commercial Exploitation

AI has significantly transformed every aspect of our lives, offering limitless possibilities and reshaping how we live, work, and interact with technology. However, this rapid advancement has also introduced legal uncertainties and a growing demand for stricter regulations. One pressing issue is the unauthorized use of a celebrity’s persona through AIgenerated content. A major drawback of this technology is the creation of deepfake videos, which have led to fraudulent activities and damage to the reputations of numerous celebrities. Notable figures like Rashmika Mandanna, Katrina Kaif, Alia Bhatt, and Anil

25 Anil Kapoor vs Simply Life & Ors Manu/Deor/248558/2023

Kapoor have fallen victim to these AI tools, prompting them to seek legal remedies. In Anil Kapoor’s case before the Delhi High Court26, the defendants engaged in multiple infringing activities. They used Kapoor’s photos to promote events he was not attending, created morphed images with his likeness, and used his voice and dialogues from movies as ringtones without permission. Additionally, they registered domain names such as www. anilkapoor. in, www. anilkapoor. net, and www. anilkapoor. com, and produced derogatory AI-generated content, including fake pornography. The court, while protecting Kapoor’s personality rights, acknowledged that fame comes with its downsides and emphasized the need to address the misuse of a celebrity’s identity. The court held that dilution, tarnishment, and blurring of a celebrity’s persona are actionable torts requiring legal protection.

In Jackie Shroff’s case27, defendants were involved in selling infringing merchandise and creating unauthorized content, including an AI chatbot using Shroff’s persona. The Delhi High Court granted an interim injunction in Shroff’s favour, reiterating that the right of publicity safeguards individuals against the unauthorized use of their name, image, voice, and other distinctive attributes. Such misuse results in unjust commercial gains for others, infringing on the individual’s personality rights.

6. NEED FOR PROTECTING PERSONALITY RIGHTS

The root of the problem lies in every individual's fundamental right to privacy, as guaranteed under Article 21 of the Indian Constitution. Celebrities, despite their public status, should not be deprived of this protection. The current era has seen a surge in the exploitation of public figures' identities for commercial gain, highlighting the urgent need for robust personality rights protections. Intellectual property rights play a crucial role in this context, offering mechanisms to safeguard personal identity from unauthorized use. The legal framework for personality rights in India remains in a developmental phase, where the digital environment presents unique challenges. Intellectual property laws, such as the Copyright Act and Trademark Act, offer some protection by recognizing moral and proprietary rights over creative works and personal identifiers.

Yet, rapid technological advancements, including deepfakes and online impersonation, necessitate further legislative refinements. A positive trend in case law suggests growing judicial recognition of the need

26 Supra 25

27 Supra 4

for comprehensive protections, enabling individuals to assert control over their digital identities. Strengthening personality rights involves enacting comprehensive reforms that integrate privacy and intellectual property rights to address digital threats effectively. Legislative provisions should specifically combat issues like unauthorized AI-generated likenesses and data harvesting, providing clear guidelines for applying these rights on various platforms, including social media. A cohesive legal approach would bring greater certainty to both rights holders and users. Robust laws, however, are effective only if paired with strong enforcement mechanisms. Enhancing resources for regulatory bodies, equipping them with advanced tools and expertise, and fostering collaboration among law enforcement, tech companies, and advocacy groups are essential.

Such measures can ensure swift responses to violations. Public awareness campaigns and education on intellectual property and privacy rights are also vital, promoting a culture of respect for personal integrity. Media literacy programs and digital citizenship initiatives can further empower society to recognize and combat infringements effectively. Embracing technology can fortify personality rights protection. Advanced algorithms for detecting image manipulation and blockchain for verifying digital identities represent promising tools. Collaboration among tech developers, legal experts, and rights advocates can foster innovative, tailored solutions to address the challenges posed by the evolving digital landscape.

7. CONCLUSION

The legal framework surrounding personality rights is still evolving, primarily through judicial interpretation. Courts have consistently recognized the importance of protecting these rights for celebrities. Striking a balance between creative freedom, personal liberties, and commercial exploitation is crucial in this era of technological advancement. The growing challenges in intellectual property law highlight the urgent need for statutory provisions that specifically address this dynamic aspect of intellectual property rights. In India, the legal framework for personality rights is emerging, drawing upon constitutional protections and intellectual property laws, such as the Copyright Act and Trademark Act. These laws grant moral and proprietary rights over creative works and personal identifiers, empowering individuals to prevent the misuse of their persona.

However, despite significant strides in cases involving public figures like Amitabh Bachchan and Anil Kapoor, there

remains a need for cohesive legislation addressing the dynamic challenges posed by digital content and the commercialization of celebrity identity. Strengthening personality rights requires comprehensive legal reforms that explicitly cover digital impersonation, AI-generated likenesses, and online exploitation. Effective protection will depend on integrating intellectual property rights with privacy laws to create a unified legal approach. Enhanced enforcement mechanisms and international collaboration are essential for tackling cross-border violations. Public awareness campaigns and education on intellectual property rights can also foster respect for personal integrity and help creators and influencers understand their rights.

Ultimately, safeguarding personality rights involves reclaiming control over digital identities and adapting intellectual property frameworks to current technological realities. Achieving this balance will protect individuals from exploitation while supporting a vibrant environment for creativity and free expression. Through strategic reforms and ethical practices, a robust legal ecosystem can emerge, ensuring that individual rights and freedom of expression coexist in harmony.