CONCURRENT DEVELOPMENT OF RIGHT TO PRIVACY AND PERSONALITY RIGHTS IN INDIA

Abstract

Privacy is defined as the “right to be let alone”. [1] “Right to life” was earlier viewed under the lens of “freedom from actual restraint”, it then expanded to “right to property” and then got the most intricate branch of man’s spiritual nature, his feelings and intellect into its realm. Taking in consideration the third aspect, “Personality rights” in India form a vastly unexplored and controversial branch of law. This right is studied under two tenets: Protection against unauthorized use of one’s image for commercial purposes and right to privacy. The scope of this article is limited to the latter aspect.

Evolution of Right to Privacy

The note-worthy American revolution of 1776 was a result of violation of protection against unjustified house search. This violation was closely connected to right to privacy of an individual. In 1895, Constitution of India Bill first captured the idea of privacy in India. In 1925, it was noted that- “No person shall be deprived of his liberty nor shall his dwelling or property be entered, sequestered or confiscated save in accordance with the law.”[2] The M.P Sharma v. Satish Chandra [3] (1954) and Kharak Singh v. State of U.P[4](1962)which substantially defined privacy were overruled by the Puttuswamy judgment.

The historical judgment by the nine-judge bench of the Supreme Court in the K.S Puttuswamy v. Union of India[5]granted the “Fundamental Right” status to “Right to Privacy”. This case identified Right to Privacy as an intrinsic part of “Right to life and liberty” espousing from Article 21 of the Constitution and other facets of dignity and freedom guaranteed under Part-III of the Constitution. In this case, privacy was studied under four aspects:

A) Right of the individual to exercise control over his or her personality;

B) As a necessary condition for the enjoyment of life;

C) As a fundamental right under three contours: Intrusion with an Individual’s physical body, informational privacy and protection of one’s personal choices; 

D) Right of an individual to control the dissemination of personal information, his/her own image and life and against unauthorized commercial exploitation.

Development of Personality Rights

Right to Publicity is defined as, “The right to protect, control, and profit from one’s image, name, or likeness.”[6] Upon scrutiny, it can be reasonably evaluated that this right is bifurcated into two aforementioned aspects. The right to be let alone as reiterated by various jurists is associated to right to privacy in this sense. Right to privacy covers the non-economic damage caused to an individual due to violation of personality rights. The development in this area has been majorly limited to the purview of Intellectual Property Rights owing to the bovine development of Right to Privacy as a fundamental right.

K.S Puttuswamy case stressed upon Right to Privacy as a natural right. Under this head, it is understood that protection against one’s unauthorized use of image/life for commercial purposes is against the right to privacy. This analogy recognizes that violation of Personality rights is a contravention of Article 21 of the Constitution. Contrary to what is prima facie ascertained that this right concerns the celebrities who have a traditionally “newsworthy” image, its scope is not just limited to them. The concept of privacy against the press in the words of Brandeis and Warren was as given- “Overstepping in every direction the obvious bounds of propriety and of decency”.[7]

With the wide-spread frenzy over motion cinema and the advancements of technology, it is of increasing importance to protect the personality rights in order to secure right to privacy. However, there were contrary contentions to a celebrity’s right to privacy. It was resonated as “waiver by celebrities” where it was observed that owing to the act of dedicating life to the public, they have waived their right to privacy. This doctrine was reiterated in Martin v. F.Y.I Theatre Co.,[8] it was held that even though the actress hasn’t authorized the use of her picture on the posters, it was justified on the part of the defendants, because as a celebrity she waived her right to privacy.

 The discourse around the sanctity of this right was reiterated positively in Haelan Laboratories, Inc v. Topps Chewing Gum, Inc.[9]for the first time. In the words of bench in this case it was held that, “We think that, in addition to and independent of that right of privacy, a man has a right in the publicity value of his photograph”. 

In India, there is no distinct legal right that guarantees right to publicity, it is under the ambit of article 19 and 21 of the Constitution. The first major judgment in India with nexus to right to publicity in context of privacy was R. Rajagopal v. State of Tamil Nadu[10]popularly known as “Auto Shankar” case. In this case the petitioner was the editor of the reputed Tamil weekly and contended that Auto Shankar who was convicted for six murders had written his autobiography in jail and entrusted the book to his wife to be delivered to his advocate, who would in turn get it published in the petitioner’s magazine. The prisoner had in his book elucidated on his connections with the IAS, IPS and prison authorities, some of whom were his partners in crime. This petition gave rise to questions of the extent to which the press can comment upon the lives of public officials. The bench went on to adjudge the following- “The petitioners have the right to publish what they allege to be the life story of AS insofar as it appears from public accounts, even without consent and authorization.” It was additionally pointed out that, an individual had the right to his privacy, family and child-bearing, procreation, education and marriage among other things.

The judgment of Gobind Singh v. State of M.P[11]was referred to in the aforementioned judgment, where it was held that, “Privacy-dignity claims deserve to be examined with care and denied only when countervailing interest is shown superior.” In 2003, the Delhi High Court in the case of ICC Development (International) Ltd. v. Arvee Enterprises[12] held that “Right to publicity has evolved from right to privacy.”

Conclusion

Holding two aspects of status quo- Growing thrust in the field of digitalization, e-governance and mass media with the sensitization of Indian courts with an individual’s right to be let alone, it can be reasonably deduced that right to protection of one’s identity and persona is an intrinsic part of fundamental rights. Everyone irrespective of their public coverage as a celebrity has the right to protect their reputation and image. Personal autonomy and dignity deserve to be protected. This right is determined on the basis of facts of each case in India.

 References

1) Samarth Krishnan Luthra & Vasundhra Bakhru, Publicity Rights and Right to Privacy in India 31 Nlsi rev. 125 (2019).

2)  Nimmer, The Right of Publicity, 19 Law and Contemporary Problems 203 (1954).


[1] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. Int’l L. Rev. 193, 207 (1890).

[2] Commonwealth Bill of India, 1925, Nehru Report.

[3] M.P. Sharma v. Satish Sharma, 1954 SCR 1077 (India).

[4] Kharak Singh v. State of U.P, (1964) 1 SCR 332 (India).

[5] K.S Puttaswamy v. Union of India, 10 SCC 1 (2017).

[6] Estate of Presley v. Russen, (1981) 513 F Supp 1339,1353 (U.S.).

[7] Supra Note 1.

[8] Martin v. F.Y.I Theatre Co., (1938) 10 Ohio ops. 338 (U.S).

[9] Haelen Laboratories, Inc v. Topps Chewing, Inc., (1953) 202 F.2d 866 (U.S).

[10] R.Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (India).

[11] Gobind Singh v. State of M.P, (1975) 2 SCC 148 (India).

[12] ICC Development (International) Ltd. v. Arvee Enterprises, (2003) 26 PTC 245 Del (India).

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