By Samrridhi Kumar and Sukriti
In July, 2023, a single judge bench of the Delhi High Court (‘Court’) delivered the judgement in a petition filed by Sushant Singh Rajput’s (‘SSR’) father (‘plaintiff’), against a film inspired by the circumstances surrounding SSR’s death. The plaintiff claimed that the filmmakers had used SSR’s likeness and caricature in violation of his personality rights. He further submitted that the right of a celebrity includes personality, privacy and publicity rights and the film violated the right to privacy of both SSR and his own. Although the right to privacy does not subsist after the death of an individual, the plaintiff submitted that the right to privacy and publicity were heritable and could be agitated on SSR’s behalf by the plaintiff.
The Court held that the right to privacy, personality and publicity are not heritable and “died with the death of SSR” and could not be said to survive to be agitated on his behalf by the plaintiff. It further held that the information used to make the film constituted publicly available information and did not require the consent of the plaintiff before the making of the movie. While the ruling considers the two rights in a conventional common law understanding, we interrogate if there is a need to reinterpret these rights.
This ruling prompts us to reconsider the scope of personality rights, in generality. Although originally drawn from the idea of privacy, personality rights eventually found protection under the commercial realm of Intellectual Property Rights (‘IPR’). However, a digital realm and significant advancements in Artificial Intelligence challenge the present perception of publicity rights.
This blog will discuss the gaps that arise in the current framework of personality rights as many of us lead a digital life online. This blog will take an expanded view of publicity rights through the lens of right to privacy. In view of the recent and ongoing developments in the world of technology, we argue for the need to expand the idea of privacy to include a posthumous recognition of privacy. We conclude that the law must depart from the prevailing view and incorporate a robust posthumous right to privacy and personality.
Why IPR based version of personality rights is outdated for the digital age
As we witness rapid deployment of Generative AI in various ways across different industries globally, a host of unanticipated problems beyond the current framework of the law have arisen. An episode of the popular show ‘Black Mirror’ provided a dismal forewarning to the potential exploits and problems posed by Artificial Intelligence. The satirical episode, depicting the daily life of the protagonist named Joan being broadcasted in real time on a streaming platform by an AI-Generated likeness of Salma Hayek, feels like an ominous indication to reconsider personality rights for celebrities and non-celebrities alike. The protagonist unknowingly signs away the rights to use her life for entertainment when she creates an account on the streaming platform, while also granting permission to be surveilled and recorded through her devices.
The experience of the entertainment industry offers interesting insight into the ways in which personality rights and with that, our understanding of privacy is undergoing a radical shift. Some examples include a Chinese Gen-AI actress bearing an uncanny resemblance to another Chinese celebrity, a Japanese company creating a TV commercial with an AI-Generated Actress, and Meta creating animated AI Chatbots of celebrities by using their likeness and the creation of AI-generated bands in Korean Pop.
While in the case of celebrities, personality rights find protection under intellectual property rights, there is a need to consider protection of personality rights of all individuals, particularly with the rise in novel ways of reproducing online presence through Artificial Intelligence, Virtual and Augmented Reality, etc. as illustrated in the previous section.
Another illustration for the importance of reading a right to privacy with the commercial right of publicity is the ongoing Screen Actors Guild protests in the United States. The proposed contracts threaten the deployment of Generative AI to use an individual’s image, likeness, voice or performance to create content in any manner without seeking consent. Such use may exploit an individual’s personal aspects in various ways for perpetuity.
Moreover, despite the contractual protections available, any individual’s personal aspects may be exploited by anyone for their own use and purpose through the use of AI, which may go beyond a mere commercial exploitation as that covered by the IPR and leave non-celebrities unprotected. A privacy based approach recognises a loss of income, dignity, agency and choice due to lack of remedy within the current framework in the case of both celebrities and non-celebrities.
Why Posthumous Right to Privacy Can Fill the Gap – Conceptualising the idea of Post-Mortem Privacy
In recent times, there have been several controversies of celebrity personalities and likeness being exploited in various ways after their death through digital and virtual means. For instance, the documentary film about chef Anthony Bourdain used an AI model of his voice for a few lines in the film. The model was created using several hours of his recordings. Similarly, hologram and CGI technology has been used to ‘resurrect’ deceased celebrities such as Michael Jackson, James Dean and Jimi Hendrix.
However, almost every individual will leave behind a digital footprint that outlasts their lifetimes. As we increasingly live our lives on the internet, these digital footprints can easily be exploited. For instance, taking from the story of the virtual resurrection of a deceased child named Jang Nayeon in Japan, Amber Boothe argues for a recognition of broader personality rights in the UK. Employing hypothetical instances illustrating the challenges of the use of extended reality technology, she argues that the “UK’s lack of personality rights is becoming ever more problematic in the case of the living, and wholly indefensible in the case of the dead.”
As the res digitalis that a person leaves challenges the traditional notions of privacy, there are arguments for the recognition of a right to post-mortem privacy. J. C. Buitelaar defines post-mortem privacy as the “right of a person to preserve and control what becomes of their reputation, integrity, secrets, dignity or memory after their death.” The concept of post-mortem privacy, according to him, derives its credence from the understanding that privacy protection includes the protection of human dignity and autonomy, even after the mortal body may not subsist in this world. He states that dignity and autonomy allows individuals to “pursue ideals of life and character before and after [their] demise, which would be difficult to achieve were privacy not safeguarded.” However, in common law, rights such as privacy and personality are considered to extinguish with the person. This approach also finds approval in the Puttaswamy judgement.
Buitelaar cites the case of Mephisto, where the Federal Constitutional Court of Germany banned the publication of a novel telling a fictitious story of a character based on a deceased actor. In a claim of injunction against the publisher filed by the actor’s adopted son, the court held that the constitutional mandate of the inviolability of human dignity, does not permit a person being belittled and denigrated after his death. Hence, the court held that an individual’s death does not put an end to the state’s constitutional duty to protect him from assaults on his human dignity.
At the same time, a blanket protection through right to privacy risks throttling freedom of speech and expression. Therefore, there is a need for striking a balance between freedom of speech/expression and right of privacy on a case by case basis. Factors for consideration in a balancing exercise might include, public interest, impact for pendency of a trial, impact on dignity of the deceased, extent of dissemination in the public domain, implications for private and family life of an individual, nature of information used, whether consent was obtained.
The Court’s decision in the case filed by SSR’s father compels us to reconsider what may constitute dignity and autonomy within the realm of privacy, and how such an understanding may be extended to personality rights. We anticipate that the issues briefly discussed in this blog are upcoming prospects that courts across the world will grapple with very soon. These prospects can achieve proper protection only if the right to privacy is viewed as an integral aspect of personality rights not only for the living but also for the deceased.
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