Making money from a celebrity’s image should not, on its own, be enough for courts to order platforms to takedown content, Gautam Bhatia told the Delhi High Court (HC) on October 7 in the Janhvi Kapoor case.
“Commercialisation plus something else often will be a reason to injunct. Mere commercialisation on its own may not be it,” Bhatia told the court.
Bhatia is the amicus curiae, a lawyer the court appointed to advise it, in the personality rights suit of actor Janhvi Kapoor. Justice Anup Jairam Bhambhani is hearing it together with suits by actor Vivek Oberoi and Aaradhya Bachchan to define the scope of personality rights. Rohan Alva, amicus in Oberoi’s personality rights suit, concluded his arguments earlier in the day. Bhatia continues on October 8 at 1 pm, after which lawyers for social media platforms will respond.
The “something else,” Bhatia said, could be “deception,” “giving an impression of false advertisement,” or a false “association.”
These are the elements of passing off, a legal claim that stops people from misleading the public about who is behind a product.
The amicus curiae for the Janhvi Kapoor case further argued that courts should decide celebrities’ commercial claims through passing off, copyright and trademark law. Courts should decide all other claims on the basis of privacy, dignity and autonomy, which every person holds whether famous or not.
“There is no single personality right in existence. It’s made up of many different interests. Some of which the law protects, some of which it doesn’t, and some are protected in different ways using different remedies,” he said.
Where do the two amici agree and differ? Both amici told the court that celebrities’ suits bundle together different kinds of claims, which courts must separate before deciding what to block. Both also backed the Delhi HC’s Digital Collectibles ruling, which held that a defendant does not violate a celebrity’s rights “merely on the basis of a celebrity being identified or the defendant making commercial gain.”
They differ in three ways:
- Sorting claims: Alva proposed five categories, each with its own legal test. Bhatia proposed two: commercial and non-commercial claims.
- Property: Alva argued a celebrity’s image is property, which they can sell or pass to heirs. Bhatia agreed only “in part,” arguing that most of a person’s control over their identity rests on dignity, which no one can sell.
- Celebrity status: Alva proposed a test to decide who qualifies. Bhatia argued courts should stop asking the question.
What does this mean for content creators? Bhatia gave the example of a creator who stitches publicly available clips of cricketer MS Dhoni into a “Thala for a reason” montage and earns ad revenue. A court should not block that video, he said, unless the creator crosses a line.
“If I use copyrighted footage from cricket matches to do this, then I am in breach,” he said. The same applies if the creator places a product in the background “which gives the impression that he may be endorsing it,” he added.
He compared this to actor Jackie Shroff’s case, where the court refused to block a creator’s “thug life” videos built from public clips. In that case, he said, the court recognised that “for many people now, this is their livelihood source.”
Why is “who is a celebrity” the wrong question? Bhatia cited a football fan who became famous overnight after a photographer captured him mocking a rival team. “He’s a private person. He’s not a celebrity… but he becomes well known overnight,” he said.
“In the age of virality, [celebrity status] becomes really a very fluid kind of a category,” he added. The court also noted that some people appear to file personality rights suits to become celebrities.
The amicus curiae of the Janhvi Kapoor case proposed giving every person the same starting rights over their identity. Only those whose image has commercial value would bring commercial claims, and courts would test those claims by asking whether the defendant misled the public. “The attempt would be to make this inquiry more objective,” Bhatia said.
Do celebrities lose their right to privacy?
“The mere fact that you are a public figure or a celebrity, and you may even want to monetise aspects of your life… does not mean that you lose all your claims to privacy,” Bhatia argued.
The right to privacy “is not merely the right to seclusion,” he said, and includes the right to control “what kind of information about you is made public.” Courts should ask whether the public has a genuine interest in knowing. “Not everything that the public may be interested in is of public interest,” said the amicus curiae of the Janhvi Kapoor case
He offered three examples, all set at a celebrity’s friend’s private wedding:
- A guest secretly photographs the celebrity and posts the image: The celebrity can claim a privacy violation.
- The same photo shows an ordinary guest: That guest can also claim a privacy violation.
- A guest photographs the celebrity, the face of an anti-smoking campaign, smoking a hookah: The public has an interest in knowing, so the privacy claim fails.
He also said the Supreme Court’s 1994 ruling in R Rajagopal, the leading case on privacy and publication, leaves unclear whether courts should block such content or only award compensation.
When should courts block allegedly defamatory content? Bhatia said courts should block content early in a defamation case only if the defendant clearly has no defence. “Unless it is very evident from a plain reading of the suit that the defendant does not have a viable defence at all, this is a question that is left for trial, and the appropriate remedy is damages,” he said.
“Ultimately, you do not want to choke off the marketplace of ideas at the outset through an injunction,” the amicus said.
A plaintiff’s fame has no bearing on a defamation claim, he added.
Should celebrities complain to platforms before going to court? In his closing arguments, Alva placed the Delhi HC’s ruling in actor Ajay Devgn’s case before the court. That ruling said people should first report harmful content through the platform complaint process under the IT Rules, 2021. It also said that courts could refuse urgent orders to those who skipped this step.
Justice Bhambhani questioned how this would work, since platforms keep their legal protection for users’ posts under Section 79 of the IT Act only if they don’t judge content themselves. “Then what use are these intermediary rules?” he asked.
Alva agreed that platforms cannot decide such disputes, citing the Supreme Court’s Shreya Singhal ruling, and said he was placing the ruling only for the court’s consideration.
What defences can people raise against these claims? Justice Bhambhani asked both amici what defences people could raise when a celebrity sues them for using their identity. Bhatia listed:
- Fair dealing: Copyright law permits limited use of copyrighted work for purposes such as criticism, review or reporting.
- Free speech: Article 19(1)(a) of the Constitution protects expression, though courts give commercial speech less weight than political speech.
- Parody and satire.
- Fan works: Non-commercial fan content that adds something new to the original.
The law does not protect obscene content, he said.
On fan works, Bhatia said that “as long as fan work is non-commercial,” it is protected, but “the moment fan work becomes commercial, it’s no longer protected.” Justice Bhambhani noted that one plaintiff had called a fan club illegal for using their photo.
“If you see a fan club of Mr Gautam Bhatia, then it has to have Mr Gautam Bhatia’s face on it. What else will it have?” Justice Bhambhani asked.
The court rose before Bhatia could respond in full.
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