PROTECTION OF PERSONALITY RIGHTS IN THE DIGITAL AGE BY: ABHISHEK YADAV & DR TARU MISHRA
PROTECTION
OF PERSONALITY RIGHTS IN THE DIGITAL AGE
AUTHORED BY:
ABHISHEK YADAV,
LLM 2
Semester, Amity Law School.
CO – AUTHOR:
DR TARU MISHRA,
Assistant
Professor, Amity Law School.
ABSTRACT
Name, voice, expressions, etc. of
every person is so unique that is why these features have been protected by
Intellectual Property Rights (IPR) and are known as personality rights of a
person. This right plays a significant role in providing big commercial gains
to the celebrities that is why this right is also famously known as celebrity
rights. On the research topic "Protection of Personality Rights in the
Digital Age", the researcher has conducted a doctrinal research. The
researcher has analyzed the impact of existing and future technologies on
personality rights. It has been analyzed how constitutional protection to
privacy rights and protections provided through IPRs are safeguarding
personality rights in the digital era in India. The researcher has read and
analyzed the Articles of the constitution, constitutional principles and
judgments of the courts regarding the right to privacy. Intellectual Property
(IP) laws have also been analyzed to understand how personality rights are
protected in India. Previous research works done on understanding personality
rights have been examined. Relevant books and journals on the constitutional
safeguards and IPRs have also been referred to. Recent articles on the issues
like personal rights, misuse of AI, protections of personal rights in the
modern era, etc. have also been analyzed. The researcher had shown that the
personality rights have already been recognized as IPR in India and identity,
name and various other personal features and information of a person has been
protected under the fundamental right of "right to privacy" as well
but still cases of misuse of unique identity and personality of a person have
not been properly stopped and no strict actions are taken against infringers of
personality rights and right to privacy of a person.
KEYWORDS:
Personality rights, celebrity
rights, right to privacy, fundamental right, IPR, Trademark, Copyright, AI,
misuse of AI, Digitalization, violation of personality rights, misuse of
technology, regulations to control AI, special law for personality rights.
1- INTRODUCTION
1.1- MEANING OF PERSONALITY RIGHTS & THE IMPACT OF
DIGITALISATION
These days technological advancement
is happening at a very rapid speed and various tools and software have been
developed which can easily do those things which were quite time taking a few
years ago. For example the emergence of modern digital gadgets, smartphones,
advanced AI tools and software have made it quite easier to swiftly copy the
personal features like voices, facial & bodily features, signature steps,
mannerism, expressions, etc. of a person. These activities can be performed
even without taking the permission of that person whose features are copied
which results in the violation of right to privacy of that concerned person. In
this way, it has become very important in modern times to bring a special law
to protect personality rights in India because the existing Indian laws have
not directly provided any specific provision to protect personality right, as
well as these laws are not capable enough to regulate the misuse of digitalization
and misuse of AI technology which have created big threats in safeguarding the
privacy and personal rights of a person. Meme pages on social media platforms
and various other websites are carelessly allowing to post various contents in
which personal features of a person or celebrity are copied rampantly without
their permission. These activities have to be stopped. Use of personal features
without the permission of the concerned people have been prevented in many
countries but Indian laws have to be amended and developed to provide a special
legal framework to prevent the misuse of personal features without the
permission of the concerned people whose personal features are copied. Damages
were awarded in 1931 in the case of Tolley
vs Fry[1]
when an amateur golf player's picture was used without taking his permission
for the purpose of advertisement but in India it is quite common to see the
unauthorized use of photos of various celebrities on the top of various shops
or in various print & digital advertisements where no actions are taken by
the authorities to prevent such misuse. AI tools have made it quite easier to
copy the image and voice of a person and with the help of this technology an
audio-visual content can be very easily created for the purpose of
advertisement or for any other purposes. Deepfake and pornografic contents have
also been made with help of AI tools & software which makes it necessary to
provide more protection to the personality rights in the coming days and to
have strong legal control over the use of AI tools and software.
A person has the right that his
personal features like his name, voice, facial & physical features,
expressions, etc. should not be used by others without his permission. This
right is known as personality right. The personal features are usually quite
abstract, they are developed by the intellect of a person that is why
personality rights are a form of IPR. Indian IP laws have not specifically
defined what is personality right but in 2017 the SC had declared the right to
privacy as a fundamental right.[2] The right
to privacy protects the personal features a person from being used without his
permission but in the era of modern technology and due to the growing misuse of
AI tools and software, it has become very necessary to bring a specific law in
India to define and provide a specific mechanism to protect personality rights
and to provide a framework for the grant of license to digital content creators
and social media influencers for legally using personal features of a person.
In the end, it all depends on the modern ways to have legal control over
advanced technologies, AI tools and software.
1.2- PERSONALITY RIGHTS ALSO KNOWN AS CELEBRITY RIGHTS
The other name of "personality
right" is "celebrity right". A celebrity is "a famous or a well-known person and is merely a person who many
people talk about or know about".[3]
Popularity of an actor, comedian, musician, sports person, politician or the
popularity of any other renowned person gives him a tag of
"celebrity". Celebrities develop and create their unique features
through their intellect and hard work. A common man may not have those valuable
personal features which a celebrity may have. Commercial exploitation of those
features can provide big monetary gains to a celebrity. The unique features of
a celebrity if used without his permission for commercial gains then that
should not be allowed and violators have to pay compensation as well.
“Considerable energy and ingenuity are expended to those who achieved celebrity
value to exploit this value for profit."[4]
Use of personal features should only be permitted when one has been given a
license for the commercial exploitation of those unique features of a
celebrity. In this way, celebrity rights enable a celebrity to gain control
over publication of his unique features. Control over the right to publicity is
a unique feature of celebrity rights. According to the Delhi HC, "The right to control the commercial use of
human identity is the right to publicity."[5] Celebrity
right gives a control over the right to publicity but the Indian laws have not
expressly defined what personality or celebrity right is, in this way it is
very difficult in India for a celebrity to prevent someone to use his unique
features specially it has become so difficult for a celebrity in the era of
digitalization where various advanced technologies, AI tools, etc. are very
easily capable of copying the unique features of a celebrity.
2- NO SPECIFIC LAW FOR THE PROTECTION OF PERSONALITY RIGHTS
IN INDIA
How India is regulating personality rights? India has no specific law
to regulate personality rights but there are various indirect ways through
which various celebrities have gained protections and have stopped others from
misusing their personal features. Action against the breach of privacy has been
established as the strongest measure to prevent others from violating the
personality right. Right to privacy and personality rights have already been
correlated by the hon'ble Supreme Court (SC) In 1994-95,[6]
where the Court said,
"The
first aspect of this right must be said to have been violated when, for instance,
a person's name or likeness is used without his consent for advertising or
non-advertising purposes or for any other purpose."[7]
The right to privacy has also been
recognized as a fundamental right which shows that personality right should
also be treated as a fundamental right. Due to the lack of formal recognition
of personality right as a fundamental right and due to lack of specific
mechanism to protect personality rights in India, it is very difficult to
protect personality rights in this digital era.
Personality right or celebrity right
is an IPR but the IP laws have not directly provided any specific provision to
register such rights and to prevent others from using personal features of the
holder of personality right without his permission. The lack of mechanism to
regulate the right of publicity also makes it difficult in India to prevent the
misuse of personality rights.[8]
If personal features are capable of
being registered as a trademark then those personal features can get protection
and be prevented from misuse but the Trademark Act[9]
is not comprehensively able to recognize all personal features of a person,
especially a common man can face difficulties in registering his personal
features as trademarks but such difficulties may not be faced by a celebrity.
Still, celebrities face a lot of restrictions in registering their personal
features as trademarks. For example name
has been recognised as a mark[10] and
celebrities can register it as a trademark but other personal features of a
celebrity are yet quite difficult to be registered as a trademark.
The Copyright Act[11] also does
not specifically provide a mechanism to protect personality rights but this act
can be used to demand the credit for the original work of a celebrity, it means
if anyone uses the work of a celebrity then that person has to declare that
work to be the work of that celebrity or that celebrity can prevent that person
to use such work. This right can be very fruitful when dialogues, expressions,
mannerisms, etc. of a celebrity are used but still the voidness of an effective
law can be felt because of lack of strong mechanism to protect personality
rights through the Copyright Act.
The IT Act,[12]
the IPC,[13] and the
newly passed BNS, 2023[14] can be
applied when there are cases related to cyber crimes, defamation, stalking,
cheating, etc. but these laws are also silent on protecting personality rights
due the misuse of modern technologies like, AI tools, advanced software, etc.
Hence, an amendment in IT Act and in other laws or introduction of a new law to
regulate the use of AI tools and software is much needed.
3- NEED FOR THE PROTECTION OF PERSONALITY RIGHTS IN THIS
HIGHLY ADVANCED DIGITAL ERA
Whether personality rights are
anymore impacted due the growth in digitalization and emergence of
advanced AI technologies? Protection of
personality rights as an IP and protection of privacy of a person as a
fundamental right both have become so difficult in this digital age. Various
technologies are evolving these days which are capable of hurting the
personality rights of a celebrity. There is a lack of appropriate laws to
govern such evolving technologies in India. Indian laws have very poor legal
control over the usage of AI technology. The IT Act, 2000,[15]
IT Rules and regulations don't have strong jurisdiction over AI which makes it
necessary for the government to make a special law for regulating AI. Various
kinds of serious harm have already been caused but the government is still
trying to understand this technology. Various advanced AI tools and software
are rampantly used these days to copy the personality of celebrities even
without their consent. Due to the lack of proper legal control over digitalization
and AI technology, it is very difficult to protect the personality rights. Due
to the lack of efficient statutory protections from the misuse of modern
technologies, many celebrities have approached courts to safeguard their
personality rights.[16]
Protection through personality
rights is going to play a crucial role in the coming days because there are
many developed and evolving technologies which can very easily copy the
personality of a person. An advertisement can be made very easily involving a
celebrity by using his images, voice, dialogue, expression, etc. without the
consent of that celebrity. For example, with the help of AI technology, an
image or an audio visual content can be very easily created by copying the
personality of a celebrity without his consent and the final edited content may
include the exact look, voice, gestures, mannerism, etc. of that celebrity
which may confuse a consumer to differentiate between the real and fake one.
In this digital age, personality
right must also be formally recognized as a fundamental right. Harmonising
personality rights with the right to privacy can allow a celebrity to directly
approach the HC or SC and the government can be made responsible to safeguard
the personality rights of the celebrities. Recognition of the right to privacy
as fundamental right in the Puttaswamy case[17]
allowed the prevention of sale of identities of a person without his
permission. Personality right also secures the identities of celebrities from
unauthorised usage and unauthorized commercial gains but due to the vast use of
technologies, the personality rights are violated very oftenly & the
existing laws are ineffective in securing these rights.
Advancement of AI technology has
posed big fears for the protection of personality rights. The existing Indian
laws are highly incapable in controlling the usage of AI technologies. By the
end of January 2024, no specific laws have been made in India to regulate the
usage of AI technologies. AI tools and softwares can be misused for various
wrongful purposes but the required and appropriate laws are still not being
made in India to prevent the misuse of such tools and softwares. Recently, an
advisory form the side of the Ministry of Electronics and Information
Technology has asked platforms to seek a permit before launching an AI tool but
this step has been criticized as a very weak step which is not strongly capable
of protecting the misuse of AI tools and can not efficiently protect the
personality rights from violations, and it is said that such unnecessary
hindrances will create only difficulties in the growth of AI tools.[18]
A strong law with a vivid &
strict mechanism to punish the culprits can stop a person from misusing AI
tools. Not only for commercial gains but for various unauthorized and illegal
activities as well these AI tools and software are used. Due to the lack of
clarity of the existing laws over AI technologies, victims are directly
approaching courts to seek remedies. Recently celebrity actor Mr. Anil Kapoor
also reached Delhi HC to protect his personality rights from the misuse of AI
technology where his personality rights were protected and misuse of his name,
voice, expressions, etc. were prevented, because of which no one (nor the users
of AI tools) now can use his personal
feature without his permission.[19]
Many AI tools and software were
introduced in the year 2023 and by the end of 2023 discussion on the regulation
of deepfake technology had become a hot topic in India because it was seen that
the images and voices of various celebrities were copied without their consent
and it was used to create various vulgar & indecent videos. It was found
that India had no special law to regulate deepfake and due to the constant
pressure from the public, introduction of a special law to regulate deepfake
was promised from the side of the Indian government. Until the end of March
2024 that law was still not made. It shows that the government conducts very
little studies to understand the misuse of future technologies which makes the
government to take a lot of time to create a law for a new problem. A lot of
time is wasted in India just to understand a problem and then to draft a law to
deal with that problem. India has to respond very quickly to deal with the
emerging problems. Continuous research works are required to understand the
emerging and future issues. Findings of proper research works can help in
instantly suggesting the appropriate laws to govern any issue. If new laws are
required then that can be created with the help of those advanced previous
research works. Constant research works are required to be done for
understanding the impact of future technologies on personality rights.
4- NEED FOR THE NEW AND STRICT STEPS
More research is required to be done
for providing protection to personality right by harmonising it with
fundamental right to privacy. The Article 21[20]
can be imposed to protect the personal features of all people of India but only
celebrities have managed to secure their personality right and their reputation
under this article.[21] Every person
has some unique personal features but only celebrities are able to enjoy the
benefits of personality rights. In this digital era, it is very easy to copy
& misuse the personal features of anyone whether the victim is a celebrity
or a common man. The copied content can be very easily used for commercial
gains, hence the personality right has to be formally declared as a fundamental
right and every person must get the right to control the commercial use and
publication of his unique features. This measure will make the government
responsible for protecting the personality rights and the victims can directly
approach HC or SC to get relief for the violation of his fundamental right.
This measure will also reduce the burden of registration of the personality
rights and just like fundamental rights are granted to every citizen similarly
every celebrity, every person will gain personality rights if formally the
rights to privacy and personality rights are merged together as a fundamental
right.
More research work is required to be
done for criticising the existing legal framework and to provide strong
statutory protection to the personality rights by suggesting required
amendments. The existing Indian laws are not capable enough to secure the right
to publicity. Strict measures to secure the right to publicity are not taken in
India even when the right to privacy has been declared as a fundamental right
by the SC. Personal features of a person like name, voice, expressions,
gestures, etc. can be very easily misused by anyone in this digital era to gain
commercial advantages and celebrities have been targeted the most for such
unauthorised activities. The celebrities need effective statutory protection
and a total prohibition on the misuse of personality rights without their
permission. Publishing unauthorised advertisements, posts on meme pages,
printing images of celebrities without their permission and circulating various
audio visual contents are the very common examples of misuse of personality
rights in which unique features, names, looks, voices, dialogues , etc. of
celebrities are used without their permission for gaining commercial
advantages.
Whether Indian laws are capable of
protecting personality rights in the technologically advanced era? The scholars
have not very well examined the impact of upcoming technologies on the
personality rights. These days the personality rights are massively misused
with the help of AI technology. India
has no law to regulate AI technology. Lack of regulatory control over AI has
made it quite easier to violate privacy of a person and to infringe IPRs. When
the media asked Anil Kapoor about his personality rights he also accepted the
issue that violation of personality has become easier with the help of AI
technology. There are many tools which can very easily copy facial features and
voices of any celebrity. These cases can be very easily seen on the meme pages
where fake images, audios, videos of celebrities without their permission are
made with the help of AI and posted on popular social media platforms like
instagram, facebook, etc. to make viral
contents and gain followers and monetary benefits. Copying the voices of
celebrities has become so common. These days it has become a trend to copy the
voice of Prime Minister Narendra Modi with the help of AI to make funny song
videos. The voices of many celebrity singers are getting copied these days with
the help of AI to make song videos. Song videos have also been created with the
help of AI by copying the voices of celebrity singers who have died many years
ago, for example the voice of Mohd. Rafi has recently been used to make song
videos which became a matter of discussion where some people supported this
experiment while some people were against it. Similarly, deepfake is also an
example of the misuse of AI in which facial features and looks of a celebrity
can be copied without his consent to make an audio visual content, this content
can be used for vulgar & indecent purposes which may harm the reputation of
that celebrity.
5- CONCLUSION AND SUGGESTIONS
A new special law or an immediate
amendment in the existing laws formally recognizing the personality right and
providing a clear mechanism for its protection is much needed. By formally
declaring personality right as a fundamental right every person can be given
authority to control their personal features. This control will provide them to
gain monetary benefits by granting license to others to publish their personal
features.
It is concluded that India has no
specific law to protect the personality rights of celebrities. Though some
provisions of The Trade marks act and Copyright act can be utilized to protect
the personal rights & personal features of celebrities but still no proper
law is there in India to directly provide protection to the personality rights.
Due to the lack of this much needed law, the personality rights are misused
everyday in India. Modern technologies and AI have also made the misuse so
easy. India needs a new law in this regard and that new special law must be
framed and implemented as soon as possible. A proper legal control over modern
technologies especially over the misuse of AI tools and software is much
needed. It is finally suggested that the following measures can be very
helpful-
1. Merging right to privacy and
personality rights,
2. providing protection even when there
is no registration of personality right,
3. strict implementation of the laws to
take action on the misuser of the personality right,
4. highlighting the inefficiency of the
trademark and copyright act in securing personality rights in the modern
digital era and bringing new amendments,
5. bringing a proper regulatory control
over AI to prevent the infringement of IPRs especially the infringement of
personality rights,
6. It is quite important to
continuously research for understanding the impact of future technologies on
personality rights.
[3] Titan Industries Ltd.
vs Ramkumar Jewellers, 2012 SCC OnLine Del 2382.
[4] Souvanik Mullick and Swati Narnaulia, "Protecting
Celebrity Rights Through Intellectual Property Conceptions", Volume 1
Issue 4 NUJS Law Review 615 (2008), available at: https://nujslawreview.org/2016/12/03/protecting-celebrity-rights-through-intellectual-property-conceptions/ (last visited March 15, 2024).
[5] Titan Industries Ltd.
vs Ramkumar Jewellers, 2012 SCC OnLine Del 2382.
[8] Vikrant Rana, Nihit Nagpal and Akif Abidi,
"Personality rights from Amitabh Bachchan to Sushant Singh to Anil Kapoor:
Indian and Global View Point", Bar and Bench, November 03, 2023, available at: https://www.barandbench.com/law-firms/view-point/personality-rights-amitabh-bachchan-sushant-singh-anil-kapoor-indian-and-global-view-point (last visited on March 16, 2024).
[10] The Trade Marks Act, 1999 (Act No. 47 of 1999), s.2(1)(m).
[11] The Copyright Act, 1957 (Act No. 14 of 1957).
[15] The Information Technology Act, 2000 (Act 21 of 2000).
[16] Ranjan Narula, "AI in conflict with personality rights
in India", ManagingIP, October
06, 2023, available at: https://www.managingip.com/article/2ca8psx7p9fyiwd4h2ps0/expert-analysis/local-insights/ai-in-conflict-with-personality-rights-in-india (last visited on March 17, 2024).
[17] Ibid.
[18] Nandini Yadav, "India moves to regulate AI tools,
experts say too much: Story in 5 points", India Today, March 4, 2024, available
at: https://www.indiatoday.in/technology/features/story/india-moves-to-regulate-ai-tools-experts-say-too-much-story-in-5-points-2510337-2024-03-04 (last visited on March 17, 2024).
[19] Nupur Thapliyal, "Delhi High Court Protects Actor Anil
Kapoor’s Personality Rights, Restrains Use Of His Name, Image Or Voice Without
Consent", Live Law, September
20, 2023, available at: https://www.livelaw.in/top-stories/delhi-high-court-anil-kapoor-voice-image-misuse-personality-rights-238217 (last visited on March 17, 2024).
[20] The Constitution of India, 1950, Art.21.