Prefix law and justice research foundation, ljrfvoice.com, Privacy Public Figures and the Media, Voice of Justice
The author of this article is Aksha Raj B, 9th Semester 5 Year B.A.,LL.B student of Government Law College, Thiruvananthapuram. She is also a trainee in Project Complete Lawyer. This article emphasizes the need for addressing the issue of ‘Intrusion of Media into the Privacy of Public figures beyond a limit’.
TABLE OF CONTENTS
1. INTRODUCTION
2. PRIVACY
3. MEDIA
4. PRIVACY RIGHTS AND THE PUBLIC FIGURES WITH REFERENCE TO MEDIA
4.1. Personality or Image Rights
4.2. Privacy Rights
4.3. Publicity or Merchandising Rights
5. IMPORTANCE OF CELEBRITY RIGHTS IN THE ERA OF INTERNET
5.1. The inherent conflict between the Celebrity Rights and The Fundamental rights enshrined in the Indian Constitution.
5.2. The conflict between Right to Human Dignity and Commercial Property Rights.
6. STATUTORY FRAMEWORK
6.1. Trademark:
6.2. Passing Off:
6.3. Copyright:
6.4. Defamation:
7. PRESS COUNCIL OF INDIA’S NORMES OF JOURNALISTIC CONDUCT
7.1. Caution against defamatory writings:
7.2. Criticism of public figures:
7.3. Privacy of public figures:
7.4. Right to privacy:
7.5. Right privacy-public figures and the press, 1988:
8. ANALYSIS & CONCLUSION
9. Endnotes
INTRODUCTION
Media has always been a leader in communicating with the people, regardless of any particular form of media. It is their constitutional right to report and inform the public about all issues of ‘public interest’ as envisaged in Article 19 of the Constitution under which the ‘freedom of the press’ is incorporated. On the other hand, the people under Article 19 have the ‘right to information’ or ‘right to know’. But along with these aspects here arises the problem of privacy whether of a common man or of a public figure. Privacy is an intrinsic right of persons coming under the preview of Article 21 of the Indian Constitution. Everyone has the right to live their private life without anyone interfering with it. It is a time when most people enjoy celebrity status due to the rapid growth and development of social media. In this scenario it is highly important to discuss the privacy of public figures and the intrusion of media beyond a limit.
PRIVACY
Privacy is an intrinsic right of people. Everyone has the right to live their private life, without anyone intervening in it. But an all embracing law to guarantee absolute right to privacy cannot be existing, and no where exists; if, press might not be able to function. Even public figures and politicians have the right to live their private life without being noticed by anyone. Article 21 says, “No person shall be deprived of his life or personal liberty, except according to procedure established by law.” But there is no general law governing privacy. But Indian Penal Code and other Acts clearly provides punishment for defamatory, indecent, and provocatory reporting. Press Council of India advises journalists not to intrude or invade the privacy of an individual unless outweighed by genuine overriding public interest, not being a prurient or morbid curiosity. So, however, that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by Press and media among others. The Press Council of India formulated guidelines to achieve a balance between the right to privacy of the public persons and the right of the press to have access to information of public interest and importance. The issue under heated debate at both national and international level and the international conference of the World Association of Press Councils (WAPC) held in April 1998 in Delhi, stressed that there is a need for reconciliation between three competing constitutional values at play on this count, viz: (a) an individual’s right to privacy, (b) freedom of the press, and (c) the people’s right to know about public figures in public interest.
MEDIA
The word media, which is the plural of medium, refers to the means of communication by which we disseminate news, music, films, education, promotional messages, and other content. This comprises newspapers, journals, tv, radio, mobile, twitter, fax, etc. It describes the different ways in which we communicate within society. Media can be divided into two categories –
Print Media includes many kinds of media like newspapers, magazines, journals, articles, and records. This is the oldest form, and a significant proportion of the population still uses it in spite of deprivation after the advent of the Internet.
Broadcast Media applies to radio and tv, which joined the picture in the early and mid-20th centuries respectively. Many viewers now collect their news from tv and radio outlets- but it won’t be long until internet media seize control.
The media plays a critical role in establishing molding and relating the public opinion of every democratic society. In Romesh Thappar v. The State of Madras1, it was held that the freedom of speech and expression includes freedom to propagate ideas, and the same is ensured by the freedom of circulation. Therefore, freedom of speech and expression under Article 19 include freedom of media as well. But this right is not an absolute one and thus, reasonable restrictions under Article 19(2) can be imposed by the law2.
PRIVACY RIGHTS AND THE PUBLIC FIGURES WITH REFERENCE TO MEDIA
In a democracy, publication is normally a reward for success. Sportsmen and artists earn it by skill. Businessmen and TV personalities earn it by wit. Politicians earn it by votes. Anyone can aspire to it. It is the public that confers celebrity. The public are stipulated by the media. But in the end celebrity is conveyed by the public’s choice as the consumer and electors. There is also a class of celebrity which is more or less involuntary. Princes and princesses acquire it by birth or by marriage. Others acquire by chance involvement in newsworthy events. Since celebrities have a popular image in the society, people generally tend to personalize them as their friends and become curious about every personal aspect of their lives ranging from their personal affairs in life to something as trivial as to the clothes that they wear, the cosmetics that they apply, the places they visit. However, the celebrities don’t know the public and hence there is no natural exchange of information. Therefore, the celebrities try to control their personal information since the disclosure of the same might put them in a situation of embarrassment, humiliation and thus make them feel insecure. The Supreme Court in R Rajagopalan v State of Tamil Nadu3 (Auto Shankar Case) through a bench of two judges, addressed the issue of prior restraint on publication in matters concerning the private life of public officials. The decision in Auto Shankar Case unequivocally held that “the remedy of public officials/public figures, if any, will arise only after the publication.”
Along with the celebrity status they also earn a few rights and the scope of these rights would be the subject matter of discussion in this chapter. These diverse rights of the celebrities are frequently encroached upon by the media. These rights which, are encroached by the media frequently, can be classified as follows:
Personality or Image Rights
Personality Rights imply a person’s right that relates to his/her personality. The personality of an individual is a way by which one person recognizes another and determines his or her position within society. This may be covered under a person’s right to privacy or as a property of a person. This is important for celebrities because people use their name or a photograph to advertise their trade and this influences their sales. In India, there is no legislation or regulation per se that protects the freedom of personality. Nevertheless, India has already started to recognize such rights by several significant decisions nowadays4.
Till the Supreme Court issued the judgment of Justice K. S. Puttaswamy (Retd.) v. Union of India5 in 2017, personality rights were largely drawn from the common law concept of ‘passing off’, similar to that of the UK. Now, such rights have been raised to the status of constitutional rights with the 2017 decision of Justice Sanjay Kishan Kaul provided this rights fundamental validity by stating: “Every individual shall have the right to exercise control and protection on their own life and reputation as presented to the world and monitor the commercial usage of their name. It also ensures that an individual will be allowed to prevent anyone from using his/her photograph, name and other personal information for commercial usage, without his / her permission.” (Para 477)
Privacy Rights
The society personalizes public figures as their friends and become curious about their daily life even in minute things they are showing their interest. But they are also human beings with a private life and they may feel uncomfortable sharing all the details through the media to strangers. One of the most popular judicial opinions has been given in the case of Barber vs. Times Inc wherein a photographer took pictures of Dorthy Barber giving a pregnancy delivery to a baby boy. Ms. Barber had filed a suit of “Invasion of Privacy” against Time inc. for unauthorized and forceful entry into her hospital room and for photographing her despite her protests. Ms. Barber was successful in her suit and the court while awarding damages of 3000$ opined:- “In publishing details of private matters, the media may report accurately and yet – at least on some occasions – may be found liable for damages. Lawsuits for defamation will not stand where the media have accurately reported the truth, but the media nevertheless could lose an action for invasion of privacy based on similar facts. In such instances the truth sometimes hurts”. We are also familiar with Princess Diana’s death case, before her death in September 1997, Lady Diana, Princess of Wales, following continuous media intrusion into her private life, confronted the British press in a vain plea for privacy for herself and her sons. Earl Spencer, her brother stated that Princess Diana talked to him endlessly about getting away from England, mainly because of the treatment that she received at the hands of the newspapers, it is to be noted that a remedy mere in words was given in some of the situations.
we see that there has been a remedy available to the celebrities either in the form of an action of “invasion of privacy” or in the form of assertion of the fundamental right of “Right to Privacy” as a part of Article 21 of the constitution.
Publicity or Merchandising Rights
The right to use the economic value of the fame and name of a celebrity is known as publicity rights. Publicity right is the ‘natural right of every human being to regulate the commercial use of his/her identity’. The right to exploit the economic value of an individual’s name and fame is referred to as the right of publicity for claiming this right, it is necessary to establish that fame is a form of merchandise and any act that impedes those rights is considered to be unfair commercial practice.
In the case of Ali v. Playgirl, it was held that “a distinctive feature of the common law right of publicity is that it recognizes the commercial value of the picture or representation of a prominent person or performer, and protects his proprietary interest in the profitability of his public reputation or persona6. Labour Theory as propounded by John Locke provides that a thing (res) is the property of the person who produces it or brings into existence. Similarly, a celebrity deserves all the rewards he could earn because he worked hard, and created a worthy persona. However, the law with this regard is still not fairly developed, especially in India, i.e. advertising /merchandising rights of celebrities. Courts in the various international countries have taken a different approach to support this right, but no universal justification has yet been crystallized.
IMPORTANCE OF CELEBRITY RIGHTS IN THE ERA OF INTERNET
The people of the country are interfacing with the media like never before. The media has become faster and a celebrities’ image can be used for publicity, invasion of privacy or for moral defamation much more easily and quickly. An instance would be the case of Julia Roberts (A recent ruling given by WIPO Complaint and Arbitration Centre) wherein the defendant ran a website named Julia Roberts.Com and through the same website the defendant used to run an online auction programmer to sell his goods. Julia Roberts claimed that the defendant used her fame to promote his auction through the Internet since the public would be inquisitive to know greater personal details of the celebrity and would visit the website from across the globe and hence his auctions would be popular in the entire world in a very short duration.
Therefore, we see that in the present age the concept of celebrity rights has become much more contextual and relevant because of the following reasons:-
a) Increasing popularity of the media – hence more creation of celebrities.
b) Faster and easier global communication through the Internet.
But while enumerating the characteristics of Celebrity Rights, we see that Celebrity Rights limits the purview of the Fundamental rights enshrined in the Article 19 of the Constitution of India. Also, a confusion arises whether to treat the celebrity rights as a commercial property of the individual devoid of the concept of human dignity. Thus, we face the following problems while envisaging the characteristics of celebrity rights:
A) The inherent conflict between the Celebrity Rights and The Fundamental rights enshrined in the Indian Constitution.
B) The conflict between Right to Human Dignity and Commercial Property Rights.
A) The inherent conflict between the Celebrity Rights and The Fundamental rights enshrined in the Indian Constitution.
To understand the Theory of Conflict better we will take into consideration the landmark judgments of some international jurist on these topics
The media considers that it is their fundamental right to publish and inform the public about all the matters that are of “public interest” or “public concern” under Article 19 of the constitution wherein the “freedom of press” is embedded. At the same time the citizens have the “Right to Information” or “Right to Know” under Art 19. This freedom has been consistently been challenged by the celebrities on the ground that the media has misused their freedom and under the guise of giving news “in the public interest” has interfered with the privacy of the celebrities. The courts have however, restricted the right of privacy of the celebrities in case the event reported is newsworthy or if the public has got legitimate interest in the event.
In Ann Margret v. High Society Magazine7 wherein the plaintiff who was a super cine star sued the defendant who used to publish the popular High Society Magazine. The contention was that the defendant used her photo in the “celebrity skin” publication, without her consent, was for the purpose of trade and invaded her right to publicity. Judge Goetell held as follows:”…Ann Margaret who has occupied the fantasy of many movie goers over the years, chose to perform unclad in one of her films; that was the matter of public interest. “The court further went on to express the meaning of “newsworthiness” as a defence generally useful in “privacy actions” against the media by the celebrities by stating that:-“….and while such an event may not appear overly important, the scope of what constitutes a newsworthy event has been afforded a broad definition and held to include even matters of “entertainment and amusement”, concerning interesting phases of human activity in general”.
Therefore, we see that the “publicity right” of a celebrity is limited and subservient to the larger public interest and the right of the citizens to know. As a result, closer to home Amitabh Bachchan would be unsuccessful in bringing about a suit for invasion of privacy, if the newspaper has reported about his ill health and the fact of hospitalization.
B) The conflict between Right to Human Dignity and Commercial Property Rights.
A brief survey on publicity rights in different jurisdictions of the world has revealed that in common law countries like the U.K., Australia and common law provinces of Canada, publicity rights are based on the concept that such rights are commercial property of the individual devoid from the concept of human dignity. Indeed, the jurisdictions treat cases of violation of publicity rights analogously to the doctrine of passing off. In the U.S.A., publicity rights emerged from the concept of privacy and human dignity but later got transformed into a concept of separate intellectual property. Even today some states of the U.S.A. consider publicity rights as property while others derive it from human dignity.
STATUTORY FRAMEWORK
· Trademark:
A trademark is a mark which can be depicted graphically and which can differentiate one person’s products or services from those of others as provided under Section 2(1) (zb) of the Act. The name and likeness of it can also be conveniently registered and used as a trademark by the celebrity. In this way, trademark protection allows the celebrity to control its name, image and similarity. Many celebrities have started to register their name and likeness as trademarks to avoid misappropriation by others. The names of Akshay Kumar, Amitabh Bachchan, Sachin Tendulkar, Kajol, Shahrukh Khan, A.R. Rehman, Sanjeev Kapoor are examples. Newspapers should not print information that is defamatory or libelous, also there should be ample reason/evidence to conclude it is accurate and its publishing should be for the greater interest, following due diligence. Freedom of the press does not grant a publication a license to malign a government figure or to print fraudulent and defamatory writings of others. Further, under Section 2(m) the definition of mark includes names as well. Celebrities may also invoke Section 14 of the Trademarks Act to prevent illegal use of their names. Section 14 of the said acts forbids the registration of a mark which falsely indicates a relation with a living individual or a person who died to register the mark within 20 years of the date of application.
· Passing Off:
Pursuant to common law, the passing off rule in India is specifically designed to protect the goodwill linked to unregistered trademarks. One should not profit from another person’s work and this is based on the basic concept of law. Passing off is covered under section 27(2), 134(1)(c) and 135 of the Trademarks Act. The remedies available as regard to Passing off are Injunctions, Damages and Compensation or Account of Profits.
· Copyright:
Copyright grants the owner an exclusive right to reproduce, issue, perform, adapt, translate and store the work so protected by copyright in any forms. Copyright Act defines the term ‘Performer’ under section 2(qq) of the Copyright Act, 1957. Further, section 38 and 57 of the said act provide for the remedy to the plaintiffs. All the manifestations of a celebrity in the context of an original literary, dramatic, musical and artistic work; or in cinematograph/ sound recording receive automatic protection under the copyright law. A famous fictional character may generate immense economic profits if appropriated into a merchandising commodity.
· Defamation:
When celebrity information is included in a story or image in such a way as to portray the celebrity in a false light, this can be defamation. It is a criminal offence under section 499 of the India Penal Code, 1860. The law gives every individual the right to uphold and protect his reputation in a community. The right to reputation is recognized as a personal right inherent in any individual. Media intrusions into the personal life of individuals near to celebrities, i.e. spouses, children, parents, and other friends and family, have also expanded privacy violations to the celebrities.
PRESS COUNCIL OF INDIA’S NORMES OF JOURNALISTIC CONDUCT
1. Caution against defamatory writings:
Newspapers should not print information that is defamatory or libelous, also there should be ample reason/evidence to conclude it is accurate and its publishing should be for the greater interest, following due diligence. Freedom of the press does not grant a publication a license to malign a government figure or to print fraudulent and defamatory writings.
2. Criticism of public figures:
An actor or musician performing on a public stage submits his work to the audience’s judgment and as such the remarks of the audience with strong relations with the performance of artists cannot be deemed defamatory. The writers, however, should refrain from writing something that could be viewed as throwing a cloud on the personal reputation of the artist remotely.
3. Privacy of public figures:
Right to privacy is a fundamental right and is inviolable. The degree of privacy also varies. The public person who works under the public eye as a public official cannot assume the same degree to be given, as provided to a private individual. However, the press has a reciprocal obligation to ensure that knowledge regarding these activities and the public person’s actions of public interest is collected by reasonable means, is duly checked and then correctly published.
4. Right to privacy:
The Press shall not intrude or violate an individual’s privacy unless it is outweighed by legitimate public interest. Also, the principle of PRIVACY includes subjects pertaining to a person’s residence, family, identity, religion, health, orientation, personal life and private affairs.
5. Right privacy-public figures and the press, 1988:
There is a conflict between the privacy of the public person and the right of the public to learn about his/her personal actions, behavior, and traits characteristics, impeding or harming the public interest, the latter being forced to give in. The specific guidelines described above may strike a compromise between the freedom of the press to obtain information and the right to privacy of public persons.
ANALYSIS & CONCLUSION
The laws in effect do not authorize a celebrity’s identity to be used without express permission from the celebrity. The same was reaffirmed by different courts. Protection is obtained under legislation pertaining to privacy, tortious liability and intellectual property rights. A celebrity’s name, face, and appearance have a market meaning that is connected to him because of his work. The commercial exploitation that derives an economic benefit is his right and no unauthorized person can misappropriate the same and benefit unjustly from it. I think it is important for legislators to enact new celebrity rights legislation that would enforce, explain and include safeguards against the abuse of celebrity rights and at the same time grant them privacy. Also, the best way for companies to protect themselves against legal actions is to get properly written approvals from celebrities before using their public images, names, likeness and the like. In the absence of these signed permissions, it is strongly advisable to incorporate adequate legal disclaimers with a view to reducing liability in the case of legal disputes.
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Endnotes
1 Romesh Thappar v. The State of Madras, 1950 Cri.LJ 1514
2 India Consti., art 19, cl. (2) to (6)
3 1995 AIR 264, 1994 SCC (6) 632
4 Shivaji Rao Gaikwad v. Varsha Productions, 2015 (2) CTC 113
5 Justice K.S Puttaswamy and Ors v. Union of India and Ors., AIR 2017 SC 4161
6 Ali v. Playgirl, 447 F Supp 723
7 Supp.401 (S.D.N.Y.1980)
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