Guarding the Persona: Personality Rights, Jurisprudence, and the Threat of Technology

Author: Jayasurya O Panicker, Advocate, Bombay High Court, Gurkaran Singh, 4th-year B.B.A. LL.B. (Hons.) student at Symbiosis Law School Pune & Tejaswini Nair, 4th-year B.B.A. LL.B. (Hons.) student at Symbiosis Law School Pune

INTRODUCTION

In the digital age, technology reshapes human interactions and creative expression, testing identity protection. The recent controversy involving Shah Rukh Khan, whose digital likeness was used without consent in an AI-generated advertisement, sparked public outrage and highlighted legal and ethical dilemmas surrounding personality rights. Even globally celebrated figures remain vulnerable to technological exploitation.

Personality rights safeguard both privacy and an individual’s autonomy over their identity’s commercial and personal use. While nations like the United States, Germany, and the United Kingdom have robust statutory protections, India primarily relies on judicial precedents, leaving gaps in its legal framework. Emerging technologies like AI, deepfakes, and digital cloning blur the authenticity of identity, necessitating urgent legal reforms.

This article explores the evolving concept of personality rights, examines international and Indian legal landscapes, and analyzes how technological innovations challenge existing frameworks. Finally, it offers recommendations for crafting adaptive laws that balance innovation with identity protection.

PERSONALITY RIGHTS: A CONCEPTUAL FRAMEWORK

Personality rights refer to the legal protection granted to individuals over their unique identity, including their name, image, voice, likeness, or any attribute distinguishing them. These rights prevent unauthorized use of personal attributes and safeguard dignity and financial interests. Unlike intellectual property rights, which protect creations of the mind, personality rights focus on the individual’s persona in personal and commercial contexts.

Personality rights encompass two key dimensions: the right to privacy and the right of publicity. The right to privacy protects an individual from unauthorized intrusion into their personal life. The right of publicity allows individuals to control and profit from the commercial use of their identity. The rise of technology and digital media has amplified the importance of personality rights. Public figures derive significant income from endorsements and licensing their personas. Unauthorized use of images or content can cause harm even to non-celebrities, especially when exploited on digital platforms.

Technological advancements introduce challenges to personality rights, particularly through artificial intelligence (AI) and deepfakes. Personality rights represent a dual safeguard: protecting personal dignity and enabling individuals to monetize their identity in a world where personal attributes carry significant economic value.

PERSONALITY RIGHTS IN INDIA: EVOLUTION AND CASE LAWS

The evolution of personality rights in India has primarily been shaped by judicial interpretations rather than codified statutes. Indian courts have gradually recognized and expanded these rights through significant rulings.

In Titan Industries v. Ramkumar Jewellers (2011), the Delhi High Court emphasized the necessity of obtaining consent before using a celebrity’s image for commercial purposes, reinforcing the right of publicity. The landmark K.S. Puttaswamy v. Union of India (2017) case expanded the right to privacy under Article 21 of the Indian Constitution, affirming an individual’s right to control their personal identity, including name, image, and likeness. In Shivaji Rao Gaikwad v. Varsha Productions (2015), the Madras High Court acknowledged the personality rights of actor Rajinikanth, preventing unauthorized commercial use of his identity.

Posthumous personality rights were addressed in Deepa Jayakumar v. A.L. Vijay (2018), where the court clarified that these rights do not extend beyond an individual’s death. Further, in Amitabh Bachchan v. Rajat Nagi (2022), the Delhi High Court issued an injunction against the digital misappropriation of the actor’s persona, reflecting concerns surrounding unauthorized use of personal attributes in the digital age.

Despite these judicial advancements, India lacks a cohesive statutory framework for personality rights, necessitating comprehensive legislation to address technological and commercial challenges.

PROTECTION UNDER INDIAN INTELLECTUAL PROPERTY LAWS

India’s intellectual property (IP) laws provide partial safeguards for personality rights but remain inadequate in addressing modern technological threats.

The Copyright Act, 1957, extends limited protection to creators and performers. Section 57 protects the moral rights of authors, enabling them to object to any derogatory treatment of their work, which may indirectly safeguard their identity. Similarly, Section 38 grants performers exclusive rights over recordings and reproductions, serving as a shield for their persona in certain contexts. Additional provisions, such as Sections 17, 39, and 52, provide ownership and control over creative works, intersecting with personality rights where creative expression is involved.

The Trademark Act, 1999, offers limited protection by focusing on the commercial aspects of personality rights. Section 2(m) recognizes names as trademarks, enabling individuals to register their identities for exclusive use. Section 14 regulates the use of names and likenesses of living or recently deceased persons for commercial purposes, thereby offering some degree of control over identity exploitation. Furthermore, Section 35 provides a defense for good faith use but lacks the clarity and strength required to address unauthorized commercial exploitation effectively.

Despite these provisions, Indian IP laws fail to account for non-conventional trademarks like personality marks. These provisions fall short of encompassing the broader scope of identity misuse in the digital age.

INTERNATIONAL JURISPRUDENCE

In United States publicity rights were recognized in Haelan Laboratories v. Topps Chewing Gum (1953) and expanded in White v. Samsung Electronics (1993). However, the absence of federal legislation results in inconsistencies across states. On the other hand, in United Kingdom, privacy and publicity rights have been protected through tort law. Cases like Michael Douglas and Catherine Zeta-Jones and Irvine v. Talksport (2002) illustrate commercial misappropriation remedies.

France grants statutory protections that prevent unauthorized commercial use of an individual’s name or image under its Civil Code. In Germany as well an integrated privacy and publicity rights under its Basic Law exist, as seen in Caroline von Hannover v. Germany, ensuring consistent protection against misuse.

These examples underscore the diverse global approaches to safeguarding personality rights amidst evolving technological and commercial challenges.

TECHNOLOGICAL CHALLENGES

AI-Generated Content: Artificial intelligence has transformed content creation, enabling the production of hyper-realistic replicas of individuals’ voices, images, and mannerisms. Generative AI tools, such as those behind the viral success of ChatGPT, are now capable of creating content that mimics public figures with startling accuracy. While this innovation expands creative possibilities, it has also led to unauthorized commercial exploitation of personal identities. Cases like Amitabh Bachchan v. Rajat Nagi demonstrate the judiciary’s efforts to address such misuse, but existing laws remain inadequate to regulate AI’s capabilities.

Digital Cloning: The emergence of digital cloning technology has further blurred the boundaries between reality and AI-generated content. Entire personas, including physical appearance, voice, and behavioral traits, can now be replicated for commercial purposes. In Anil Kapoor v. Simply Life India, the court addressed unauthorized domain squatting and exploitation of Kapoor’s persona, highlighting the need to regulate digital cloning practices to safeguard against identity theft and unauthorized monetization.

Social Media: Social media platforms have become fertile ground for exploiting personality rights. The ease of sharing and altering content has led to unauthorized use of personal attributes, from memes featuring public figures to manipulated audio clips. The rapid spread of such content complicates enforcement and underscores the urgency for legal reforms that account for social media’s pervasive influence.

Labor Disputes and AI: The ongoing SAG-AFTRA strike in Hollywood reflects broader concerns about AI’s impact on creative industries. Actors and writers have expressed fears over AI’s ability to replicate performances and scripts, reducing demand for human talent. This labor dispute highlights the pressing need to protect individuals from exploitation in AI-driven content creation. Similar challenges are likely to emerge in India as AI adoption grows in entertainment and media.

CONCLUSION

The intersection of technology, media, and identity necessitates robust legal frameworks to protect personality rights. India’s reliance on judicial precedents and fragmented IP laws falls short in addressing AI, deepfakes, and digital cloning. By enacting comprehensive legislation, regulating emerging technologies, and expanding judicial interpretations, India can ensure individuals retain control over their identities in personal and commercial spheres. Such measures will safeguard autonomy, privacy, and dignity while empowering individuals to monetize their personas in a digital age.