RIGHT TO PRIVACY AND REPUTATION POST DEMISE

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In the present day, Privacy is a necessity for each and every person. Privacy is an essential part of our lives and one of the very basic needs. The supreme court in the judgement on the case of Puttuswamy v. Union of India[1], declared that the right to privacy is a fundamental right that is protected under the Part III of the Indian Constitution.

The words privacy and right to privacy can not easily be formed into a particular concept or idea. Privacy takes into consideration and puts emphasis on the concept of natural rights and usually refers to the new communication and information technologies. The right of privacy is our right to the ability of being free from any public attention or interference with our personal acts and decisions, this includes all the things that are part of us, such as our body, home, feelings etc, the right to privacy gives us the capacity to choose which parts of our private life can be accessed by outside people and to control the extent, manner and timing of the use of those parts that we have chosen to disclose to others.

The recognition of the concept of Privacy in India, mainly traces its origin back to the case of Kharak Singh v State of Uttar Pradesh[2] where the majority were of the opinion that the right to privacy is not a guaranteed right under the constitution of India and due to this the attempt to ascertain the movements of an individual which is just an act in which privacy is being invaded is not an infringement of the fundamental right.

Privacy is an essential aspect of a society or a group’s self regulation which is defined by its various aspects to different people. In a democracy like India which is known for its diverse nature, having people from all religions, customs and backgrounds and therefore it is easy to understand that one thing may not be the same to everyone as there are bound be difference in opinions from person to person. Privacy holds different meaning for different people. For some people it may be the privacy of information, for another the privacy of body and many similar forms of privacy can be the meaning of privacy.

[3]Privacy of a person: Our Indian legal system guarantees the right of life and freedom of speech of a person which involves his/her privacy where no one can be forced to talk about their private matters such as about their marriage. It also provides protection from various forms of force, infirmity and fear. This system tries to make sure that no one is forced to behave in a certain manner. The system aims to protect the rights of a person from fear and force in order to guarantee the rights of a person.

Privacy of home: No one should live in dread or be concerned about the invasion of their privacy at home, which is a haven of solace, safety, and security. A home’s sacredness should be preserved. The value and sanctity of home is recognised by most countries.

Privacy of a family: The primary social impact of privacy, is on a family, it is viewed as a group of personal relationships that may thrive if kept hidden from public scrutiny. Starting from one’s financial ability to the observation of marital rights, privacy with regard to one’s family is extremely important. Due to the fact that everyone treats and considers their spouses as their confidants, the law protects all communication between a husband and his wife, as it  is necessary to make the world a better place to live in. If such privacy is not maintained between the spouses, an individual will have no one to confide in and will eventually be left alone.

Privacy and press: This is sometimes referred to as the Fourth Estate, and it is the cornerstone of any democracy. Individual privacy is to be defined as private even by the fourth estate, despite the fact that no legislation exists in the country to do so.

Privacy of gender: This privilege serves as a deterrent not only to the improper sharing of private information, but also to the misrepresentation of the accurate image. This is a right that every individual, male or female, famous or not, possesses. This right does not only exist for men in this country, but also for women, and regardless of who she is or what information she has, her life is her own and nobody else’s, from marriage to her conjugal obligations, whether she is a housewife, an employee, a corporate junkie, a vendor, or even a prostitute, no one has the right to invade her privacy.

Privacy of Health: In the health-care industry, privacy is a big problem. The trust connection between a doctor and a patient is known as a fiduciary relationship, which refers to those partnerships that are established on mutual trust and confidence. Every person has the option of keeping their medical history private or sharing it with someone they choose. No one is allowed to peek into someone’s personal or medical life, and physicians are not permitted to release the information, as the courts have ruled in circumstances when doctors are morally and ethically sound in maintaining secrecy.

Privacy and Data Protection: As a result, data privacy becomes even more vital, because no one wants their personal information leaked. As a result, all aspects of data protection, including data on individuals, their families, employment, health, and so on, must be a top priority for any government.

Privacy of Dead And Article 21-

[4]Article 21 states that “No individual shall be deprived of his life or personal liberty unless in accordance with a procedure established by law,”. In order to protect the privacy of the departed, the term “person” in Art 21 should also include “dead.” As a result, it is critical to examine the definition of the term “person.”[5]

The word “person” is not defined in the defining clause of Article 366 of the constitution. As a result, the General Clauses Act and the Indian Penal Code must be used to define it. A person is defined in Section 3 (42) of the General Clauses Act 1897 as “any corporation, association, or group of persons, whether incorporated or not.”

Rights of the Dead

There are some rights that can’t be taken away from the dead. Even if the body is devoid of life, the combination of life and body makes a human person. The Indian Succession Act of 1923, allows a person’s will to be carried out after his death. Under the Human Organ Transplantation Act of 1994, a person has the right to prevent his or her dead body from being mutilated, wasted, or having the organs removed, except with the consent of the person when he or she was alive, or with the consent of his or her kith and kin or the state if the body is unclaimed. As a result, only limited rights like as will execution and the right to a respectful cremation of the body were available to the dead. However, because privacy is a component of dignity, it can be extended even beyond death.

RECENT VERDICT OF MADRAS HIGH COURT ON THE ISSUE – RIGHT TO PRIVACY, REPUTATION EXTINGUISHES AFTER DEATH

The issue was relating to the petition filed by J Deepa[6], the niece of the former Chief Minister J Jayalalitha, J Deepa had filed a High Court petition to prevent the screening of the biopic titled “Thalaivi.” The film is based on the former CM’s life. The petitioner claimed that the film is damaging her reputation. In addition, she stated that the life biography of Jayalalitha cannot be told without including the lives of her family. It will also be invasion of her (Deepa’s) privacy.

The appeal was filed in response to a single judge’s reluctance to halt the distribution of Kangana Ranaut and Arvind Swami’s Thalaivi, claiming that the film was not created with her approval and hence may tarnish Jayalalithaa’s reputation.

“We believe that ‘posthumous right’ is not a ‘alienable right,” stated the division bench comprising of Justice R Subbiah and Justice Sathi Kumar Sukumara Kurup, finding that a person’s privacy or reputation gained during his or her lifetime expires with his or her death. They further stated that the appellant (Deepa) is not entitled to an injunction on the grounds that the respondents are attempting to tarnish her aunt’s “posthumous right” as a result of the film’s publication.” They stated that the legal heirs cannot attempt to protect them through the introduction of legal trials.  The bench also noted that the film in issue is yet to be published, saying, “Even prior to that, the appellant is not entitled to seek an injunction on the premise that her aunt has been presented in the film in a negative light, therefore attempting to bring her image and name into disrepute.”

[7]The film’s distribution is contingent on certification by the central board of film certification, which will have the opportunity to review the film’s subject matter. The court also ruled that the film producers are not needed to obtain the petitioner’s permission before making a film on her aunt’s life. The court also quoted a Bombay high court decision, which stated that people who are in the positions of power must have shoulders which are broad enough in order to gracefully recognise a review of themselves. Democracy is built on the foundation of critical thinking. The filmmaker cannot be forced to convey simply one version of the facts since the film’s strength as a medium of expression depends in its potential to add to that evaluation. The court went on to say that the same thing happened with the online based series “Queen”. In one case, the council stated that the web series was not a true story, but rather a cost-effective adaptation of a story inspired by true events.

The Appellant is entitled to bring this claim as a Class I legal successor (as defined by Hindu law) of late Dr. J. Jayalalitha to defend the “posthumous right to privacy” and the dignity and legacy of her late aunt Dr. J. Jayalalitha.[8]

While making this submission the Appellant cited the case of Rajagopal Vs. State of Tamil Nadu[9] wherein, the Supreme Court of India, while summarizing the principles therein, Had observed that a citizen has a right to protect his or her own privacy, as well as the privacy of his or her family, marriage, procreation, and other matters, and that no one can publish anything concerning the above matters without his consent, whether true or not, laudatory or critical, and that if he does so, he will be violating the person’s right to privacy and will be liable in a damages action. It’s worth noting that the 1st and 2nd Respondents also cited the Rajagopal Judgment, which said that the Supreme Court found that there is a right to publish if it’s based on public documents. Both sides’ arguments relying on the Rajagopal decision shape the outlines of the right to privacy and essentially link back to the Single Bench’s rationale that the right to privacy must be balanced with the right to freedom of expression under the Constitution, both of which are fundamental rights, i.e., the balance of convenience theory. The Appellant claimed that the Series depicts false and distressing events, such as scenes in which Dr. J. Jayalalitha cuts her wrist, scenes in which Dr. J. Jayalalitha begs her male co-star to marry her, and scenes in which Dr. J. Jayalalitha’s brother is shown as a drug addict. The Appellant argued that these were not true incidents and that it is depicting Dr. J. Jayalalitha and her family members in a negative light, and Respondent No.3 is exploiting the Series’ completely fictional status as a smokescreen to sensationalise Dr. J. Jayalalitha’s personal life. At first glance, the Appellant’s allegations appear to be more along the lines of defamation than of violation of the right to privacy and unauthorised use of one’s personality rights, i.e., that the aforementioned dramatised scenes in the Series would harm such person’s reputation because they were factually incorrect. Respondent No. 3 relied on the fact that the Series was a “dramatisation and fictitious reproduction of real events,” that it was based on Book 2, and that it carried a disclaimer expressly indicating that the Series was not a biography of Dr. J. Jayalalitha. In numerous defamation matters, as discussed in Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai[10], this combination of fictionalisation, dependency on a prior publication, and an appropriate disclaimer has been seen to be used, as discussed in the case of Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai. The Division Bench did not go into great detail on this aspect of defamation in this decision, although it was mentioned briefly during the reading of Section 306 of the Indian Succession Act, 1925[11], and Rule 1 of Order XXII of the Code of Civil Procedure, 1908[12].

“Such a disagreement cannot be permitted so close to the debut of the film,” the bench added. Its release is conditional on the CBFC awarding a certificate following an evaluation of the film’s content.” The film’s expressive power derives from its ability to contribute to that evaluation, and the director cannot be obliged to reflect only one version of the facts. Similarly, the justices passed a similar ruling refusing to grant any remedy against the web series Queen. They noted that senior lawyer Satish Parasaran, speaking on behalf of the company’s director Gautham Vasudeva Menon, said that the web series has been available for a long time and that an injunction was superfluous. The online series, according to the lawyer, was not a true biography in the traditional sense, but rather a fictionalised rendition of a true story.

Restrictions (as indicated in the Court Order):

Only state action that passes each of the three standards is cabable of limiting the right: Any state action, first and foremost, must be founded on a legal obligation; second, it must be pursuing a legitimate state purpose; and third, it must be carried out in the public interest. Next, it must be proportionate, which means that such state action must be necessary in a democratic society, both in terms of kind and extent, and the action must be the least invasive of the available choices for accomplishing the aims.

RECENT VERDICT OF DELHI HIGH COURT IN THE CASE OF SUSHANT SINGH RAJPUT BIOPICS

Sushant Singh Rajput’s father, Krishna Kishore Singh, claimed to be “the Category-I or Class-II legal heir of SSR and absolute legal heir under Section 16 of the Hindu Succession Act, 1956,” and filed a suit in the Delhi High Court to protect his son’s “reputation, privacy, and rights of deceased son,” which he claimed were being violated by the making of films like “Nyay: The Justice,” “Shashank,” and others stating that hey are said to be based on Rajput’s life and events. The death of SSR was widely reported in electronic, social, and print media. The Plaintiff has asked the court for an ad-interim ex-parte injunction prohibiting the Defendants from exploiting his son’s name, caricature, lifestyle, or image in upcoming films and other endeavours, among other things. Any such publishing, production, or portrayal, he claims, would be a violation of his personality rights and the right to privacy, which includes the right to publicity, among other things, and could not be done without his legal heir’s permission.

[13]On 10th June 2021, the Delhi High Court dismissed the appeal brought by Sushant Singh Rajput’s father, Krishna Kishore Singh, wanting to restrain filmmakers from making films on his son, the late actor Sushant Singh Rajput. The film was supposed to be out on June 11th.

Nyay, Shashank, and an undisclosed crowd-funded film are a few of the future or proposed movie projects based on Sushant’s life. According to a petition signed by KK Singh, the filmmakers are profiting from the situation and hence do not have the right to free speech and expression. KK Singh demanded damages of nearly Rs 2 crore from the producers for “loss of reputation, emotional stress, and harassment,” claiming that the films might tarnish his son’s image. The petition also argued that allowing a “movie, web-series, book, or any other comparable materials to be published or televised would jeopardise the victim’s and deceased’s right to a free and fair trial. According to the lawsuit, because Sushant is a well-known star, “any abuse of his name/ image/ caricature/ way of delivering phrases also amounts to infringement of the plaintiff’s personality right alongside acts of passing off.”

On the issue as to whether ‘celebrity rights’ can be enacted after a person’s death,  Singh had claimed that such rights are inheritable by a celebrity’s legal heirs, citing the Gujarat High Court’s verdict of Kirtibhai Raval[14], which held that celebrity rights can be transferred to a direct descendant. In the said case the Plaintiff, claiming to be a direct descendant of late Shri Jalaram Bapa of Virpur, filed a lawsuit based on the right to privacy and the right of publicity, seeking an injunction against the publication of any film or creative work based on the life of late Jalaram Bapa without his approval. The Gujarat High Court upheld the trial court’s injunction, reasoning that “irreparable harm will be caused by violation of right to publicity or privacy that cannot be compensated monetarily,” but it also believed that the parties’ arguments needed to be thoroughly considered after appropriate evidence was presented.

The single judge bench led by Justice Sanjeev Narula, who delivered the judgement, first stated that the terms “publicity right,” “celebrity right,” and “personality right” are not expressly recognised by any Indian laws. There are, however, limited laws under which certain of these rights can be asserted as intellectual property rights, such as the Trade Marks Act and the Copyright Act, 1957 – none of which are applicable in this instance. The court concluded that whether these rights exist posthumously would have to be investigated further, as in the absence of codified laws protecting such rights, the common law that governs such rights would have to be examined, and further investigations would first require evidence from the Plaintiff to show that SSR’s persona is still surviving as a commercial property. While Singh “has sought to distinguish ‘celebrity rights’ from the ‘right to privacy,’ any assertion of such (celebrity) rights (except those claimed through Intellectual Property Rights for which special statutory protection is provided) cannot be appreciated apart from the concept of right to privacy, according to Justice Narula. In the unavailability of legislation recognition of such rights, the right to privacy derived from Article 21 would be the source of such rights.”

According to the court, “a limited class of celebrity rights that are protected as intellectual property rights under applicable law are assignable and licensable, and may outlast the actor’s death.” “However, because it is integrally linked to and sprouted from the right of privacy,” it added of the publicity right, “the Court prima facie finds merit in the Defendants’ argument that the posthumous privacy right is not acceptable.” [15]The Delhi High Court based its decision on the Supreme Court’s ruling in the Puttaswamy case, which stated that “any person’s right to privacy is essentially a natural right and remains with the human being until his or her last breath as it is born with the human being and extinguishes with the human being itself. “The court also quoted the Madras High Court’s judgment in the case of Makka Tholai Thodarpu Ltd’s Managing Director, which mentioned that a person’s “right of privacy cannot be inherited after his death by his legal heirs, and that a person’s personality right, reputation, or privacy enjoyed during his lifetime comes to an end after his lifetime,”.

“The name, caricature, lifestyle, and/or likeness of SSR is not being exploited by putting it on any object such as t-shirts, toys, posters, mugs, and so on in order to convey his personality,” the court decided. The Defendants are not making any false claims or misrepresenting their films in any way. The Court noted that it was not satisfied that the Saraogi, Sharma, and Gulati’s work infringed on celebrity rights since they “assert their work to be fictional, i.e., neither a biography nor based on true facts.”

CONCLUSION

As the current legal situation shows, dignity lasts even after death, thus privacy, as part of dignity, should be extended as well. The Supreme Court of India, on the other hand, recognised just the right to the dignity of a dead body in the Paramananda Katara case, and the ruling did not address the whole concept of preserving the dignity of the dead. As a result, we may conclude that privacy does not extend to the deceased based only on the legal position. However, in order to avoid a breach of a person’s privacy just because he is deceased, this right must be recognised and safeguarded by legislation. The public will surely be deceived if this right is not safeguarded. There’s a significant possibility that the law will be misunderstood by the public.


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

[2] (Kharak Singh vs The State Of U. P. & Others) 1963 AIR 1295, 1964 SCR (1) 332

[3] Privacy and its relation to different aspects of society, available at https://blog.ipleaders.in/know-the-right-to-privacy-in-india-its-sanctity-in-india/ (Last Modified June 12, 2020 )

[4]Article 21, available at, https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2021

[5] Privacy of Dead and Article 21, available at http://www.legalserviceindia.com/legal/article-120-should-your-privacy-die-with-you-.html 

[6] Right to privacy, reputation extinguishes after death, available at https://www.thehindu.com/news/national/tamil-nadu/right-to-privacy-reputation-extinguishes-after-death-hc/article34340089.ece

[7] HC refuses to ban Jaya biopic, says right to privacy cannot be inherited, available at https://www.dtnext.in/Lifestyle/LifeStyleTopNews/2021/04/17031838/1288135/HC-refuses-to-ban-Jaya-biopic-says-right-to-privacy-.vpf

[8] [8] POSTHUMOUS SURVIVAL OF PRIVACY & PERSONALITY RIGHTS: PART 2, available at https://www.legal500.com/developments/thought-leadership/posthumous-survival-of-privacy-personality-rights-part-2/

[9] (R.Rajgopal v. State of Tamil Nadu) 1995 AIR 264, 1994 SCC (6) 632

[10] (Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai) WRIT PETITION No.30376 of 2011

[11] Section 306 of the Indian Succession Act, available at https://indiankanoon.org/doc/261549/

[12]Rule 1 of Order XXII of the Code of Civil Procedure, 1908, available at http://www.bareactslive.com/ACA/ACT379.HTM

[13] Sushant Singh Rajput’s father’s plea rejected, Delhi HC refuses stay on Nyay release, available at https://www.indiatoday.in/movies/celebrities/story/sushant-singh-rajput-s-father-s-plea-rejected-delhi-hc-refuses-stay-on-nyay-release-1813154-2021-06-10

[14] Kirtibhai vs Raghuram on 20 January, 2010 (Gujrat High Court)

[15] Sushant Singh Rajput Case : Are Celebrity Rights Available Posthumously? Delhi High Court To Decide, available at https://www.livelaw.in/top-stories/sushant-singh-rajput-case-are-celebrity-rights-available-posthumously-delhi-high-court-to-decide-175506

Author: CHANDRIMA DAS, SYMBIOSIS LAW SCHOOL, NAGPUR

Editor: Kanishka VaishSenior Editor, LexLife India.

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