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In an era dominated by digital media and the exponential rise of artificial intelligence, the ability to control one’s own name, image, voice, and likeness—collectively known as Personality Rights—has become a critical legal, ethical, and economic battleground. The recent proliferation of AI-generated deepfakes and unauthorized digital impersonations has thrust this issue into the national spotlight in India, exposing the vulnerabilities of individuals and forcing a re-evaluation of a legal framework that has, until now, been a patchwork of judicial interpretation rather than explicit, consolidated legislation. The viral circulation of manipulated videos featuring prominent Indian actors in late 2023 served as a stark wake-up call, demonstrating how easily a person’s identity can be hijacked, causing immense reputational damage, public deception, and emotional distress. This has catalyzed urgent discussions among policymakers, the judiciary, and the public, accelerating the need for a more robust and clearly defined legal regime.

The core of personality rights is a duality. It encompasses two distinct but intertwined concepts, originating from different legal philosophies but converging in the digital age:

1. The Right to Privacy: This is an individual’s right “to be let alone” and to control the public dissemination of their identity. Rooted in the concept of human dignity, it is the right to prevent one’s name, image, or personal attributes from being used without permission, particularly in a manner that is intrusive, causes emotional distress, or casts them in a false light. It is fundamentally a right of non-interference and is considered an intrinsic aspect of personal liberty.

2. The Right to Publicity: This is a proprietary right, akin to an intellectual property right. It is the right of an individual, particularly a celebrity or public figure whose persona has acquired commercial value, to control and profit from the commercial use of their identity. This right prevents others from unjust enrichment by appropriating the economic value of a person’s fame or recognition without authorization or compensation. It treats the persona as a valuable asset generated through the individual’s skill, effort, and investment.

These two rights can sometimes be in tension. For instance, a celebrity who actively courts public attention to build their brand (exercising their right to publicity) may have a different expectation of privacy compared to a private citizen. However, both rights stem from the fundamental principle of individual autonomy and the right to control one’s own identity.

Fun Fact: The term “right of publicity” was first coined in the United States in the 1953 court case Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. The court recognized that individuals have a right to the “publicity value of their photograph” and that this right was a distinct, commercially valuable asset that could be legally protected and licensed, separate from the right to privacy.

The Evolving Legal Framework in India: A Constitutional and Statutory Deep Dive

In India, the protection of personality rights is not codified under a single, comprehensive statute. Instead, it has been incrementally constructed by the judiciary, drawing from a variety of legal sources. This mosaic of laws forms the current, albeit complex, protective shield for an individual’s persona.

The Constitutional Bedrock: Article 21 and the Right to Privacy

The most crucial foundation for personality rights in India is the Constitution. The journey to this point was evolutionary. While early cases like M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. (1962) did not recognize a fundamental right to privacy, the Supreme Court’s nine-judge bench in the landmark case of Justice K.S. Puttaswamy (Retd.) vs. Union of India (2017) unanimously and unequivocally affirmed that the Right to Privacy is a fundamental right, intrinsic to the Right to Life and Personal Liberty guaranteed under Article 21. This judgment is the cornerstone of modern personality rights jurisprudence in the country.

The Court held that privacy is not merely about physical seclusion but is a multi-faceted right that includes:

• Bodily Autonomy: The right to make personal decisions about one’s body.
• Informational Privacy: The right to control the collection, use, and dissemination of one’s personal data.
• Privacy of Choice: The right to make fundamental life choices without state interference.

Crucially, the Puttaswamy judgment recognized that an individual’s right to control their personal information is a key aspect of their dignity. By extension, the unauthorized use of one’s image, voice, or likeness is a direct violation of this constitutionally protected sphere of privacy. This ruling provides the constitutional gravitas needed to argue that personality rights are not mere common law rights but are elevated to the status of fundamental rights, making them enforceable against the state and, through judicial interpretation, against private actors as well.

Common Law and the Tort of Passing Off

Before the constitutional affirmation of privacy, the primary recourse for protecting the commercial aspect of personality was through common law torts, particularly the tort of passing off. Traditionally used in commercial law to protect businesses from competitors misrepresenting their goods or services as those of another, courts have creatively extended this principle to protect celebrity personas.

For a claim of passing off to succeed in the context of personality rights, a plaintiff must typically establish the “classical trinity”:

1. Reputation/Goodwill: The celebrity must prove that their name or likeness has acquired a significant reputation and goodwill, such that the public associates it with a certain quality, brand, or persona.
2. Misrepresentation: The celebrity must show that the defendant’s unauthorized use of their persona creates a misrepresentation (e.g., a false endorsement) that is likely to deceive the public into believing the celebrity is associated with the defendant’s product or service.
3. Damage: The plaintiff must demonstrate that this misrepresentation has caused or is likely to cause damage to their reputation, brand value, or commercial interests.

A notable case is Daler Mehndi vs. T-Series, where the Delhi High Court restrained the sale of dolls that resembled the famous singer, recognizing that his persona had immense commercial value that could not be appropriated without his consent. More recently, in Shivaji Rao Gaikwad (Rajinikanth) vs. Varsha Productions (2015), the Madras High Court explicitly held that personality rights are a form of intellectual property and granted an injunction against a film that used the famous actor’s name and likeness without permission, thereby preventing the dilution of his brand.

Intellectual Property Rights: A Limited Shield

While not a direct fit, certain aspects of Intellectual Property (IP) law offer partial protection:

• The Copyright Act, 1957: This Act protects original literary, dramatic, musical, and artistic works, as well as cinematograph films and sound recordings. A specific photograph, portrait, or video of a person is protected by copyright, and the photographer or producer generally holds the rights. However, the Act protects the expression (the specific photograph) and not the subject (the person’s likeness itself). Therefore, it does not prevent someone from creating a new, independent image or representation of that person, which is precisely what generative AI does.
• The Trademarks Act, 1999: This Act allows for the registration of names, signatures, and even likenesses as trademarks if they are used to distinguish goods or services in the course of trade and have acquired a “secondary meaning.” Several prominent celebrities in India, such as Shah Rukh Khan and Sachin Tendulkar, have trademarked their names or signatures. However, this protection is limited to the specific classes of goods or services for which the trademark is registered and is primarily aimed at preventing consumer confusion in a commercial context, not all forms of misuse, especially non-commercial ones like deepfake memes.

Mnemonic for Legal Sources: To remember the primary legal pillars protecting personality rights in India, use the acronym C.C.I.T.

• Constitution (Article 21 - Right to Privacy)
• Common Law (Torts like Passing Off)
• Intellectual Property (Copyright and Trademarks Acts)
• Technology Law (The DPDP Act, 2023)

The Game Changer: The Digital Personal Data Protection (DPDP) Act, 2023

The enactment of the Digital Personal Data Protection (DPDP) Act, 2023, marks a paradigm shift in India’s approach to data privacy and, by extension, personality rights. This legislation, a direct outcome of the Puttaswamy judgment, provides a robust, consent-based framework for the processing of all digital personal data. This is a critical recent development that directly addresses the challenges posed by AI and deepfakes.

Key provisions of the DPDP Act that fortify personality rights include:

• Broad Definition of ‘Personal Data’: The Act defines personal data as “any data about an individual who is identifiable by or in relation to such data.” This explicitly includes images, voice recordings, biometric data, and any other attribute that can be used to identify a person. A deepfake, which is created by processing existing images and videos of a person, therefore, involves the processing of personal data.
• Consent as the Cornerstone: The Act mandates that personal data can only be processed for a lawful purpose upon obtaining the “free, specific, informed, unconditional, and unambiguous” consent of the Data Principal (the individual to whom the data relates). This high bar for consent, requiring a clear affirmative action, makes it illegal to use someone’s image or voice to train an AI or create a deepfake without their explicit permission for that specific purpose. The concept of “bundled consent” is discouraged.
• The Role of the Data Protection Board: The Act establishes the Data Protection Board of India, a specialized regulatory body to adjudicate on complaints, investigate data breaches, and impose significant penalties. For breaches of its provisions, the Board can levy penalties of up to ₹250 crore (approximately $30 million), creating a powerful financial deterrent against the misuse of personal data. This shifts the burden from costly civil suits to a more accessible regulatory complaint mechanism.
• Rights of the Data Principal: The Act grants individuals the right to access information about processing, the right to correction and erasure of their personal data, and the right to grievance redressal. This empowers individuals to demand that platforms take down deepfakes and erase the underlying data used to create them.

The DPDP Act effectively transforms the fight against digital impersonation from a complex, often expensive civil litigation process into a matter of statutory non-compliance, empowering individuals with a more direct and potent legal weapon.

Judicial Activism in the AI Era: The 2023-2024 Rulings

Complementing the new legislative framework, the Indian judiciary has demonstrated remarkable proactiveness in adapting to technological threats. In a landmark order passed in November 2023, the Delhi High Court, in a case filed by veteran Bollywood actor Anil Kapoor, granted a sweeping injunction to protect his personality rights from misuse by AI-powered tools.

The court’s judgment was groundbreaking for several reasons:

1. Explicit Recognition of ‘Personality’: The court went beyond just image or voice, explicitly recognizing the actor’s entire “personality”—including his name, voice, image, likeness, signature, and even his distinctive mannerisms and catchphrases (like “Jhakaas”)—as a protectable attribute.
2. Pre-emptive Injunction: The order was not just against existing infringing content but was a pre-emptive “John Doe” or “Ashok Kumar” order against any person or entity that might misuse his personality attributes in the future, particularly through deepfakes, GIFs, or for creating ringtones.
3. Protection Beyond Commercial Use: Crucially, the court acknowledged that the harm from such misuse is not merely commercial. It also leads to the dilution of a celebrity’s brand, reputational damage, and public deception, thereby protecting the dignity and privacy aspects of personality rights.

This judgment, along with the government’s subsequent advisories in late 2023 and early 2024 directing social media platforms to ensure users do not post deepfakes and to comply with IT Rules, 2021, signals a new, aggressive enforcement posture against digital misuse of identity.

Analogy: Think of your personality rights like the digital copyright to your own identity. Just as an author controls how their book is used, you should have the right to control how your name, image, and voice are used. The DPDP Act and recent court rulings are like adding digital rights management (DRM) to your personal identity, with legal penalties for anyone who tries to break the lock.

The Unresolved Frontier: Posthumous Personality Rights

One of the most complex and contentious legal gray areas is whether personality rights survive death. As the legacies of historical figures, artists, and leaders become increasingly valuable digital assets, the question of who controls their persona after they are gone is of immense importance.

There are two competing legal theories:

1. The Privacy-Based View (Rights Extinguish at Death): This view argues that the Right to Privacy is inherently personal to the individual. It is a right to be “left alone,” and since a deceased person has no personal feelings to be injured or dignity to be violated, the right extinguishes upon their death. This is the traditional stance in many common law jurisdictions.
2. The Property-Based View (Rights are Descendible): This view treats the Right to Publicity as a proprietary right, an asset created through a person’s efforts and investment. Like other forms of property (e.g., copyrights, trademarks), this right should be descendible, meaning it can be passed on to heirs who can continue to profit from and protect the deceased’s legacy from unauthorized commercial exploitation.

Indian courts have grappled with this issue without a definitive ruling from the Supreme Court. In cases like Deepa Jayakumar vs. A.L. Vijay, concerning a biopic of the late Tamil Nadu Chief Minister J. Jayalalithaa, the Madras High Court observed that the right to privacy of a deceased person is not available to their legal heirs. However, it also acknowledged that content that is false and defamatory could potentially harm the reputation of the family, offering a very narrow window for action. This leaves the law in a state of flux.

In contrast, other jurisdictions have taken clearer stances, as shown below.

The lack of legislation in India creates significant uncertainty for the estates of famous personalities and opens the door for posthumous exploitation of their legacies, whether for commercial gain or to spread historical misinformation.

Statistic: A 2024 report on digital trends estimated that the market for “digital likeness” licensing, including for deceased celebrities, could exceed $10 billion globally by 2030, highlighting the immense economic stakes involved in the debate over posthumous rights.

Critical Policy Appraisal

Analytical Lens: UPSC Focus (Mains & Prelims)

Conceptual Basis

The legal and constitutional backbone of personality rights in India rests on:

• Article 21 of the Constitution of India: Interpreted by the Supreme Court in the Puttaswamy (2017) case to include a fundamental Right to Privacy, which encompasses informational privacy and control over one’s identity.
• The Digital Personal Data Protection (DPDP) Act, 2023: This is the key legislation governing the processing of digital personal data, making consent the central pillar for the lawful use of an individual’s identifiable information, including images and voice.
• Common Law Torts: Primarily the tort of passing off, which has been adapted by courts to protect the commercial value of a celebrity’s persona from false endorsement and brand dilution.

UPSC Integration: Connecting the Dots

• Polity & Governance (GS Paper II): This topic is a classic example of the dynamic interpretation of Fundamental Rights (Article 21), the role of the judiciary in protecting citizens’ rights against new technological threats, and the legislative response to judicial directives (DPDP Act as a follow-up to Puttaswamy). It also involves the functioning of regulatory bodies like the Data Protection Board.
• Science & Technology (GS Paper III): The entire debate is driven by advancements in Artificial Intelligence, machine learning, and the rise of deepfakes. It highlights the ethical and societal implications of emerging technologies and the need for “responsible AI” governance.
• Economy (GS Paper III): The Right to Publicity is directly linked to the economics of the entertainment, sports, and advertising industries. It is a form of Intellectual Property that fuels the creator economy and has significant commercial value.

Future Impact and Policy Relevance

The discourse on personality rights is at a critical juncture. As AI becomes more accessible, the threat of misuse will grow exponentially, moving beyond celebrities to affect ordinary citizens. The key policy challenge for India will be to move from a reactive, court-driven system to a proactive, legislative one. The future lies in crafting a sui generis (standalone) law on personality rights. Such a law would need to:

1. Clearly define the scope of protectable attributes.
2. Establish a clear distinction between the commercial Right to Publicity and the dignity-based Right to Privacy.
3. Settle the debate on the descendibility of posthumous rights, perhaps by granting a fixed-term protection (e.g., 50-70 years post-mortem) for the publicity aspect.
4. Carve out clear exceptions for freedom of speech, including news reporting, commentary, parody, and artistic expression, to avoid constitutional challenges. The effective implementation of the DPDP Act and the future evolution of this law will be crucial in shaping digital freedom and individual dignity in India for decades to come.

Prelims Practice Question (MCQ)

Question: With reference to the legal framework for Personality Rights in India, which of the following statements is correct? a) Personality rights are explicitly defined and protected under the Copyright Act, 1957. b) The Supreme Court of India first recognized the Right to Privacy as a fundamental right in the Kharak Singh case. c) The Digital Personal Data Protection (DPDP) Act, 2023, makes consent of the Data Principal mandatory for processing their digital personal data. d) Indian law provides a clear statutory right for the protection of personality rights for 70 years after a person’s death.

Answer: (c) Explanation:

• (a) is incorrect. The Copyright Act protects the specific expression (e.g., a photograph), not the underlying likeness or personality of the individual.
• (b) is incorrect. The Kharak Singh (1962) case had a minority opinion in favor of the Right to Privacy, but it was the K.S. Puttaswamy (2017) case that unanimously affirmed it as a fundamental right under Article 21.
• (c) is correct. The DPDP Act, 2023, is built on the principle of consent. It requires a Data Fiduciary to obtain free, specific, informed, and unambiguous consent from the Data Principal before processing their personal data for a lawful purpose.
• (d) is incorrect. This is a major legal ambiguity in India. Unlike jurisdictions like California, India has no specific statute providing for posthumous personality rights, and judicial opinion is divided.

Mains Sample Question

Question (15 Marks): “While the Digital Personal Data Protection (DPDP) Act, 2023, and proactive judicial interventions provide a shield against the misuse of identity in the digital age, the lack of a single, codified law on personality rights creates significant legal ambiguities.” Critically analyze this statement, with special emphasis on the challenges posed by artificial intelligence and the unresolved issue of posthumous rights. (250 words)

Mind Map Outline (Revision Structure)

• Personality Rights in India
  • Core Concepts (The Duality)
    • Right to Privacy:
      • Right to be “left alone.”
      • Rooted in dignity and personal autonomy.
      • Protects against intrusion and emotional distress.
    • Right to Publicity:
      • Proprietary/Commercial right.
      • Prevents unjust enrichment.
      • Treats persona as a valuable, licensable asset.
  • Legal Framework (The Mosaic)
    • Constitutional Basis:
      • Article 21: Right to Life and Personal Liberty.
      • K.S. Puttaswamy vs. Union of India (2017): Affirmed Right to Privacy as a Fundamental Right.
    • Common Law:
      • Tort of Passing Off: Requires Reputation, Misrepresentation, Damage.
      • Key Cases: Daler Mehndi v. T-Series, Shivaji Rao Gaikwad v. Varsha Productions.
    • Intellectual Property Law (Limited Protection):
      • Copyright Act, 1957: Protects the expression (photo/video), not the likeness itself.
      • Trademarks Act, 1999: Protects names/signatures if they have “secondary meaning” in commerce.
  • Recent Developments & Technological Impact
    • Threats:
      • Artificial Intelligence (AI) and Generative AI.
      • Deepfakes: Malicious impersonation, misinformation.
      • Digital dilution of brand value.
    • Legislative Response:
      • Digital Personal Data Protection (DPDP) Act, 2023:
        • Consent-based framework.
        • Broad definition of “Personal Data.”
        • Establishment of Data Protection Board of India.
        • Heavy penalties for non-compliance.
    • Judicial Response:
      • Anil Kapoor Case (Delhi HC, 2023):
        • Protected entire “personality” (name, voice, mannerisms).
        • Granted pre-emptive “John Doe” injunction.
        • Recognized non-commercial harm (dignity, reputation).
  • Key Unresolved Issues & The Way Forward
    • Posthumous Personality Rights:
      • Legal vacuum in India.
      • Privacy View (extinguishes at death) vs. Property View (descendible).
      • Judicial Ambiguity: Deepa Jayakumar case.
      • Comparative View: California (70 years), New York (40 years).
    • Need for a Sui Generis Law:
      • To provide clarity and consolidate principles.
      • To define scope and limitations.
      • To balance with Article 19(1)(a) (Freedom of Speech and Expression).
      • To address enforcement challenges in the digital realm.
  • Policy Critique
    • Challenges: Lack of codified law, enforcement difficulties, posthumous rights vacuum.
    • Opportunities: Judicial proactivism, DPDP Act as a deterrent, potential for a balanced standalone law.