Deepfakes and Personality Rights: The Need for codifying Personality Rights.
The proliferation of deepfake technology has posed significant challenges to the protection of individual identity and reputation and the recent incidents of INDIA TV and Medanta hospital’s trademark infringement and deepfaked potrayals have once again re-surfaced this issue. Deepfakes, capable of mimicking a person’s likeness and voice with near-perfect accuracy, have transcended their initial novelty to become potent tools for misinformation, deception, and exploitation. In contrast to conventional disinformation, deepfake information is imbued with heightened realism, persuasiveness, plausibility and dissemination intent.[1] And since, the creator, consumer and subject of the content are distinctly different-the potential lack of empathy or misapprehension by the consumers towards the subject, based on the creator’s potrayal, necessitate a discussion of the subject’s privacy and personality rights. The codification of personality rights could be one way to deal with the misuse of deepfake technology.
A BACKDROP OF RECENT DEVELOPMENTS
In the former order (pdf), Rajat Sharma and his company, M/s Independent News Service Private Ltd. (operating as ‘INDIA TV’), sought a permanent injunction restraining infringement of his personality and publicity rights.[2] They contended that the defendants are perpetuating gross misinformation by running fraudulent medicinal drug advertisement campaigns through wrongful use of Artificial Intelligence and are creating deepfakes by distorting images, voice, and other personality traits of Rajat Sharma, also infringing upon the registered trademarks of his company.[3] The Court gave time to the defendant to file a reply and in the meanwhile restrained the defendants from directly or indirectly misusing and exploiting the name, likeness, image, etc. of the plaintiff and also from using the registered trademarks of the company.[4]
Earlier last year, Mr. Rajat had also moved a Public Interest Litigation against the absence of legal mechanism to regulate deepfake technology in India and to mitigate its potential misuse.[5] Unlike other avenues of unjust enrichment through commercial exploitation of a celebrity’s persona, medicinal drug campaigns also have a dimension of public interest and accountability.[6]
In the latter case, the Delhi HC dealt with deepfake videos featuring Mendanta hospital’s trademark and it’s chairman, Dr. Naresh Trehan giving urology advice outside his expertise as a cardiothoracic surgeon.[7] It granted an injunction to the plaintiffs and noted that the intent behind those posts was to deceive the public by promoting the sale of unathorised medicines and if no ex-parte ad interim injunction is granted, the plaintiffs would suffer irreparable harm.[8]
PERSONALITY AND PRIVACY: HOW INTRUSION TRAMPLES AN INDIVIDUAL’S RIGHT TO THEIR IDENTITY?
The dissemination of false information in both the above cases constitute not merely an impersonation of the individuals’ personalities but also a gross infringement of their privacy rights. Samuel Warren and Louis Brandeis, two American lawyers in their seminal work of 1890 on The Right to Privacy as a tort action, articulated privacy as “the right to be let alone” and identified four distinct ways in which privacy can be infringed: including the publication of false or misleading representations placing the subject in a false light which is highly offensive to a reasonable person, and the appropriation of another’s name or likeness for the benefit of the appropriator, as their third and fourth points.[9]
In the context of deepfakes, the use of an individual’s name and likeness by the creator, without consent, constitutes appropriation for personal benefit that exploits the fame and reputation of the affected individuals, leveraging their identity for the creator’s gain. Furthermore, deepfakes may portray views, actions, or characteristics entirely unaligned with the actual person’s beliefs or identity, placing the subject in a false light.
COMMERCIAL VALUE OF ONE’S PERSONA
Apart from privacy infringement, an individual should also retain control over the portrayal of their identity. This brings us to the discussion of their personality rights, which confer upon an individual the exclusive right to govern how their persona is depicted in the public domain, particularly for commercial purposes. One’s persona is a valuable property that a person might wish his successors to protect and commercially exploit just like other intellectual properties.[10]
“The right to publicity (personality rights) may also be construed as a property right, when commercial value is derived from an individual’s persona, and its ownership parallels that of tangible property. Across various jurisdictions, the right to publicity is emerging as a potent legal tool, detached from the constraints of traditional trademark and unfair competition actions, such as the likelihood of consumer confusion or the requirement for the parties to operate within the same commercial domain.”[11]
WHY THE CONTEMPORARY SITUATION BEST BE DEALT WITH CODIFICATION OF PERSONALITY RIGHTS?
In India, however, where the right to publicity is not yet codified and individuals are left to rely on their own efforts to protect their identity, it becomes challenging to enforce a publicity or personality claim against offenders. The absence of a clear legal framework complicates the process of asserting control over one’s identity and holding offenders accountable. Once codified, however, it would significantly ease the enforcement of personality rights and provide a more straightforward mechanism for seeking redress and punishing those who infringe upon these rights.
While there is no silver bullet to counter deep-fakes, the codification of personality rights may provide a clear basis for actionable claims.
Indian courts have occasionally recognized aspects of personality rights through interpretations of privacy laws but the emergence of deepfakes have complicated the scenario beyond simple remedial measures. Recent cases like those involving Rajat Sharma and Mendanta hospital demonstrate that Indian courts are beginning to recognize the implications of deepfake technology on the detrimental side.
Notwithstanding its detrimental aspects, an outright prohibition of this technology would constitute an unreasonable restriction on the right to freedom of speech and expression, thus, what is necessitated is the formulation of a comprehensive legislative framework to regulate its usage.
WHAT CAN INDIA DO?
As a signatory to The Bletchly Declaration aimed at preventing catastrophic harm from AI use, India should draft policies that enhance transparency and protect against unauthorized use of an individual’s persona.[12]
Taking example from China, India too can roll out a legislation requiring all AI generated content to be watermarked or may adopt other innovative measures to address the issue.[13] Legislative interference is crucial to explicitly delineate India’s position on the increasing complexity of personality rights infringement, exacerbated by the proliferation of deepfakes. Legislation on deepfakes has to be carefully chalked out to curb potential misuse while also fostering the beneficial applications of this technology and not stifling them.
WHERE SHOULD THE LINE BE DRAWN TO CURB MISUSE?
“Considering that deepfakes are original, and are a result of human author’s own intellectual creation, they are copyright-protected. In a video, when an individual is shown performing an act he did not quite engage in, it is deemed to be original as the threshold of originality is not particularly high. Following the Infopaq, Painer and Levola Hengelo, in the EU, works that have an author’s ‘personal touch’ are deemed original. In the United States, following the Feist publication, a work that has a ‘modicrum of creativity’ is sufficient to benefit from copyright protection. This means, even though news items cannot be allowed copyright protection as per Article 1(8) of the Berne Convention, fake news which has an element of originality (as they depict an event that did not take place), can merit copyright protection.”[14]
However, when there is a conflict between copyright law and personality rights, it is the subjects right to privacy that demands priority. Hence, there is a need to separately govern such rights as the broad interpretation of privacy to combat impersonation of personality remains at the merciful discretion of the courts in the absence of statutory provisions.
While creative works with personal touch are copyright protected, what happens when the work uses a subject without consent? The Paris Court held, in this regard, that when there is a conflict between Article 10 of the European Convention of Human Rights relating to the hand of the artist and Article 8 on the other that guarantees privacy, privacy would merit priority over the hand of the artist under Article 10.[15] However, this interpretation would require the support of a statutory wall to prevent potential inconsistent rulings in India for the future cases. While the existing provisions of the Copyright Act and certain sections of the IT Act, particularly those requiring intermediaries to regulate AI-generated content, govern the current landscape of deepfakes in India, there remains a significant gap as there is no legislation that directly addresses the violation of personality rights through the use of deepfakes. This issue must be considered as a subset of broader personality rights regulation in the future to provide a clear and consistent legal framework.
Referring to some leading legal dictionaries, the United States court of Appeals for the Third Circuit, has already established personality rights as an intellectual property, and thus when the question of whether or not it is a IP arena has been settled, we are lagging behind in time to legislate upon this area of IP law, and combating the misuse of deepfakes could just be another compelling reason to finally legislate upon this topic.[16]
Thus, codifying personality rights in India would not only fill a legal gap but would also provide an effective counter-measure to the deepfake misuse cases.
Author: Vidisha Banerjee, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing
REFERENCES
- Books and Book Chapters
- Tyagi K, ‘Deepfakes, Copyright & Personality Rights: An inter-disciplinary perspective’ in Klaus Mathis and Avishalom Tor (eds), Law and Economics of the Digital Transformation (Springer Nature Switzerland AG 2023).
- Journal Articles
- Luthra SK and Bakhru V, ‘Publicity Rights and the Right to Privacy in India’ (2019) 31 National Law School of India Review
- Vig S, ‘Regulating Deepfakes: An Indian Perspective’ (2024) 17(3) Journal of Strategic Security
- Online Articles
- ‘Delhi High Court Rulings on Celebrity Rights Galore: Examining the Rajat Sharma and Mohan Babu Orders’ (SpicyIP, 20 December 2024) <https://spicyip.com/2024/12/delhi-high-court-rulings-on-celebrity-rights-galore-examining-the-rajat-sharma-and-mohan-babu-orders.html> accessed 15 January 2025.
- ‘Tackling Deep Fakes: Fair Use or Infringement of Personality Rights’ (Mondaq, 7 November 2023) <https://www.mondaq.com/india/social-media/1395366/tackling-deep-fakes-fair-use-or-infringement-of-personality-rights> accessed 17 January 2025.
- ‘Delhi HC Orders Removal of Deepfake Videos Featuring Medanta Hospital and Its Chairman, Citing Deceptive Intent’ (ANI News, 9 January 2025) <https://www.aninews.in/news/national/general-news/delhi-hc-orders-removal-of-deepfake-videos-featuring-medanta-hospital-and-its-chairman-citing-deceptive-intent20250109202912/> accessed 17 January 2025.
- Cases
- Rajat Sharma v M/s Independent News Service Pvt Ltd [2024] <https://spicyip.com/wp-content/uploads/2024/12/Rajat-sharma-case-2.pdf> accessed 16 January 2025
* Vidisha Banerjee, II Year, B.A.LL. B (Hons.), Dharmashastra National Law University, Jabalpur, vidisha117-23@mpdnlu.ac.in
[1] Shinu Vig, ‘Regulating Deepfakes: An Indian Perspective’ (2024) 17(3) Journal of Strategic Security 70 https://www.jstor.org/stable/48793910 accessed 15 January 2025.
[2] Rajat Sharma v M/s Independent News Service Pvt Ltd, Delhi High Court, [2024] https://spicyip.com/wp-content/uploads/2024/12/Rajat-sharma-case-2.pdf accessed 16 January 2025.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] ‘Delhi HC Orders Removal of Deepfake Videos Featuring Medanta Hospital and Its Chairman, Citing Deceptive Intent’ (ANI News, 9 January 2025) https://www.aninews.in/news/national/general-news/delhi-hc-orders-removal-of-deepfake-videos-featuring-medanta-hospital-and-its-chairman-citing-deceptive-intent20250109202912/ accessed 17 January 2025.
[8] Ibid.
[9] Samarth Krishan Luthra and Vasundhara Bakhru, ‘Publicity Rights and the Right to Privacy in India’ (2019) 31 National Law School of India Review 125.
[10] Ibid.
[11] Ibid.
[12] ‘Delhi High Court Rulings on Celebrity Rights Galore: Examining the Rajat Sharma and Mohan Babu Orders’ (SpicyIP, 20 December 2024) https://spicyip.com/2024/12/delhi-high-court-rulings-on-celebrity-rights-galore-examining-the-rajat-sharma-and-mohan-babu-orders.html accessed 15 January 2025.
[13] ‘Tackling Deep Fakes: Fair Use or Infringement of Personality Rights’ (Mondaq, 7 November 2023) https://www.mondaq.com/india/social-media/1395366/tackling-deep-fakes-fair-use-or-infringement-of-personality-rights accessed 17 January 2025.
[14] Kalpana Tyagi, ‘Deepfakes, Copyright & Personality Rights: An inter-disciplinary perspective’ in Klaus Mathis and Avishalom Tor (eds), Law and Economics of the Digital Transformation (Springer Nature Switzerland AG 2023) 191-210.
[15] Ibid.
[16] Ibid.
