Delhi High Court: In a case wherein a suit was filed by father of Sushant Singh Rajput seeking a decree of permanent injunction, restraining the defendants and all others from using Sushant Singh Rajput’s name, caricature or lifestyle in any projects or films without the prior permission of the plaintiff, a Single Judge Bench of C. Hari Shankar, J.*, opined that the impugned movie “Nyay : The Justice” could not be sought to be injuncted at this distance of time, especially when it had already been released on the OTT platform, Lapalap, a while ago and must have been seen, by now, by thousands. The Court held that no case could be said to exist, to grant the prayers made by the plaintiff and thus, the suit was dismissed. The Court further held that the right of the plaintiff to maintain and prosecute the suit, insofar as it claimed damages from the defendants, would stand preserved.
The plaintiff was the father of Sushant Singh Rajput, who instituted the present suit by way of a quia timet action. The suit was predicated on information stated to have been received by the plaintiff to the effect that Defendants 1 and 2 were in the process of producing, and Defendant 3 in the process of directing, a movie titled “Nyay : The Justice”, based on the life of Sushant Singh Rajput, without taking permission of any of his legal representatives, including the plaintiff. The suit sought a decree of permanent injunction, restraining the defendants and all others from using Sushant Singh Rajput’s name, caricature or lifestyle in any projects or films without the prior permission of the plaintiff, alleging that any such effort would infringe the personality rights of Sushant Singh Rajput and also, cause deception in the minds of the public, which would amount to passing off. Along with the suit, the plaintiff sought an interlocutory injunction against the defendants using Sushant Singh Rajput‘s name, caricature, lifestyle or likeness in any films or other ventures, pending disposal of the suit.
Analysis, Law, and Decision
The Court after seeing the movie “Nyay : The Justice”, observed that “there remained no doubt whatsoever, that the impugned movie was an overt re-enactment of Sushant Singh Rajput’s life and times, concentrating largely on the circumstances leading to his death and the investigation that had followed”. The Court opined that the disclaimers might be genuine, or cosmetic, but in the present case, it was obvious that a disclaimer which, when seen in the backdrop of the movie itself, was plainly untrue, was worth tinsel. The disclaimer, inserted in the impugned movie could not, therefore, detract from the reality that the movie was, in fact, a celluloid retelling of the life and death of Sushant Singh Rajput.
The Court relied on R. Rajagopal v. State of T.N., (1994) 6 SCC 632; Khushwant Singh v. Maneka Gandhi, 2001 SCC OnLine Del 1030; Titan Industries Ltd. v. Ramkumar Jewellers, 2012 SCC OnLine Del 2382; ICC Development (International) Ltd. v. Arvee Enterprises, 2003 SCC OnLine Del 2; and Deepa Jayakumar v. A.L. Vijay, 2021 SCC OnLine Mad 2642 and observed that the following principles emanate from these decisions:
If a person‘s name or likeness was used, without his consent, for any purpose, or his life story was written or published without his consent, the person‘s right to privacy was violated. In such an event, the remedy with the person was to sue for damages, and not to seek injunction of the offending publication. This position would continue to apply even if the offending publication was defamatory in nature. This right to privacy could not be canvassed by one person, on behalf of another, without due authorization.
If the publication was based on public records, including Court records, however, there was no invasion of the right to privacy. No action for damages on the grounds of violation of the right to privacy could be maintained by public officials, or public figures, even if the publication was untrue, unless it was made with reckless disregard for truth. All that the person publishing the publication, be it a member of the press or the media, had to show was that he had reasonably verified the facts. This defence would not, however, be available if the article, or publication, was actuated by malice or personal animosity.
Where the article, or publication, or movie, is based on prior published material, available in the public domain, which the plaintiff had not chosen at that time to impugn or challenge, no injunction could be sought by the plaintiff against the subsequent publication or movie, which was merely based thereon. That the prior publications, in which the information figured, were not public documents stricto sensu, made no difference. What was relevant was that the information was available in, and taken from, the public domain. The plaintiff‘s right to sue for damages would, nonetheless, continue to subsist even in such a case.
The right to publish, or disseminate information, even in the form of a movie, was guaranteed by Article 19(1)(a) of the Constitution. So long as the publication did not infract Article 19(2) of the Constitution, the right was absolute. The publisher of the allegedly offending information was not required to take permission of the representatives of the person about whom the publication was being made, before making it. Nor was he required to verify the truth of the contents thereof, provided it was earlier available in the public domain.
The fact that the plaintiff had also sought damages, and that the suit was awaiting trial, was also a factor which militated against injuncting, ad interim, dissemination of the allegedly offending publication, or telecast of the movie.
Publicity rights recognized the commercial value of the image or the persona of a person and protected his proprietary interest in the profitability of his public reputation. Proprietorial interest in the image and persona of the person concerned, leading to an enforceable right in the identity of such persona was the sine qua non to maintain a claim predicated on personality rights. Reputation, personality, and privacy and personality rights that emanate therefrom, were not heritable.
The Court opined that “it was clear that no case could be said to have been made out for grant of interlocutory relief as sought by the plaintiff. The reliefs sought in the plaint were entirely with respect to Sushant Singh Rajput. The rights that the prayers in the suit seek to protect and the rights of privacy, publicity and personality which vested in Sushant Singh Rajput. No relief, qua any right which vested in the plaintiff, finds place in the plaint”. The Court further opined that “the rights ventilated in the plaint, that is, the right to privacy, the right to publicity and the personality rights which vested in Sushant Singh Rajput, were not heritable. They died with his death. The said rights, therefore, did not survive for espousal by the plaintiff”. The Court also opined that the information contained, and shown, in the impugned film, was entirely derived from items which featured in the media and, therefore, constituted publicly available information. In making a film on the basis thereof, it could not, therefore, be said that the defendants had violated any right of Sushant Singh Rajput, much less of the plaintiff, especially as the said information had not been questioned or challenged when it appeared in the media, either by Sushant Singh Rajput or by the plaintiff. Nor were the defendants required to obtain the consent of the plaintiff before making the movie. Even if the impugned film did infract the publicity rights of Sushant Singh Rajput, or defamed him, the infracted right was personal to him, and could not be said to have been inherited by the plaintiff.
The Court opined that the impugned movie could not be sought to be injuncted at this distance of time, especially when it had already been released on the OTT platform, Lapalap, a while ago and must have been seen, by thousands by now. The movie could not be said to be infracting Article 19(2) of the Constitution. Injuncting further dissemination of the movie would, therefore, infract the defendants‘ rights under Article 19(1)(a) of the Constitution. The Court further opined that “the concept of celebrity rights, as a distinct compendium of rights available only to celebrities, was legally unacceptable. The law could not allow itself to be a vehicle to promote celebrity culture. Rights which emanate from one‘s personality, and persona, would be available to everyone, and not only to celebrities. Rights which enure because of the special personal achievements of individuals were, of course, to be sedulously protected, and deserve recognition. That was altogether different from conferring, on an individual, additional rights merely because he, or she, was a celebrity. To fasten a legal right on something as fleeting as celebrity status appears an oxymoron”.
Thus, the Court held that no case could be said to exist, to grant the prayers made by the plaintiff and thus, the suit was dismissed. The Court further held that the right of the plaintiff to maintain and prosecute the suit, insofar as it claimed damages from the defendants, would stand preserved.
[Krishna Kishore Singh v. Sarla A Saraogi, 2023 SCC OnLine Del 3997, decided on 11-7-2023]
Advocates who appeared in this case:
For the Plaintiff : Varun Singh, Akshay Dev, Ytharth Kumar, Alankriti Diwedi, Parul Sharma, Atif, Himanshu Yadav, Kajal Gupta, Smriti Wadhwa, Advocates;
For the Defendants : Chander M. Lall, C.M. Lall, Senior Advocates; Bhushan M. Oza, Anand Mishra, Vedanta Vurma, Akhil Kumar, Ananya, Vibhor Kush, Advocates.
*Judgement authored by : Justice C. Hari Shankar