Personality Rights, the Right of Publicity, and the Emerging Harms: Deepfakes and Doxxing

Where privacy protects a person against exposure, personality rights protect the commercial value of his identity. The two overlap and are not the same: a private person complains that he was exposed, and a celebrity complains that he was used. Indian courts have enforced personality rights through passing off, through privacy under Article 21, and increasingly by injunctions granted in their own right. The live questions now are synthetic media and the publication of identifying information, neither of which the existing torts were designed for, and both of which they can largely reach.

Personality rights and publicity, the line drawn in Rajagopal, and the emerging harms

1. Personality Rights

• A personality right is the right of a person to control the commercial use of his identity: his name, image, likeness, voice, signature, a catchphrase associated with him, and any other indicium by which he is recognised.
• The interest protected is proprietary as well as personal. In this respect the right resembles goodwill more than it resembles privacy, and it is assignable and licensable in a way a privacy right is not.
• It is enforced in India by several routes at once: passing off, where the use suggests an endorsement; privacy under Article 21, following Rajagopal and Puttaswamy; breach of confidence, where the material was obtained in confidence; and, increasingly, by injunctions granted in recognition of the right itself.
• There is no Indian statute conferring it, and its content has been worked out through interim injunctions in passing off suits rather than through final decisions on principle.

2. The Right of Publicity

• Actual confusion is not required, which distinguishes the right of publicity from passing off as ordinarily pleaded. The wrong is the unauthorised appropriation of value, not the deception of the public.
• The right protects the commercial value the person has built up, and that value is the reason a celebrity's claim is stronger than a private person's: there is more to appropriate.
• A private person is not without a remedy, and his claim lies in privacy, under the head of appropriation of name or likeness examined in TORT 088.

3. Where the Right Is Asserted

• Advertising and endorsement without consent, which is the paradigm case.
• Merchandise bearing a name, image or likeness.
• Unauthorised biographies, biopics and dramatisations, where the question is the balance with freedom of expression and with the public record exception in Rajagopal.
• Use of a voice, or of a recognisable imitation of it, including a synthesised voice.
• Domain names and social media handles using a person's name.
• Artificial intelligence generated likenesses, which is the live question and is considered below.

4. Privacy and Freedom of Speech: The Line Drawn in Rajagopal

• The right yields where the person voluntarily thrusts himself into a public controversy, in respect of that controversy.
• It yields where the matter has become part of the public records, including court records.
• A public official has no remedy for publication concerning the discharge of his official duties unless he proves reckless disregard for the truth, and the defendant answers by showing reasonable verification of the facts.
• There is no prior restraint. The remedy is an action after publication, a position which Bloomberg Television Production Services India v. Zee Entertainment, 2024 INSC 224, has since reinforced for defamation injunctions generally: TORT 071.
• The practical consequence is that a personality rights claim against news reporting is weak, and against advertising is strong, the difference being that the second is commercial speech appropriating value while the first is comment on a matter of public concern.

5. Deepfakes

• Falsity is not always the gravamen, which is why privacy and personality rights do work that defamation cannot. A synthetic advertisement showing a person endorsing a product he has never used may lower nobody's opinion of him at all, and is still a serious wrong.
• The identifiability of the subject is usually the easiest element, since the whole point of such material is that it is recognisable.
• The practical difficulty is the defendant. The maker is frequently anonymous, so the claim is directed at the platform, where section 79 of the Information Technology Act, 2000 and its due diligence conditions govern, and at obtaining an order for removal rather than damages.
• Indian courts have granted injunctions restraining the use of a person's name, image and voice, including by artificial intelligence, in interim proceedings, and this is the area of the law moving fastest.

6. Doxxing

• Doxxing is the publication of a person's private identifying information, typically with the object or the effect of exposing him to harassment.
• What is typically published is a home address, a workplace, a telephone number, the identity of family members, or the school a child attends.
• It is actionable as public disclosure of private facts, the information being true and private and the public having no legitimate concern in it.
• The foreseeable harassment that follows may found a claim in negligence against the publisher, on ordinary principles: the harm is foreseeable, the publisher created the risk, and the intervening acts of third parties do not break the chain where they are the very thing the publication was calculated to produce.
• Intentional infliction of emotional distress is available in some jurisdictions and is not an established nominate tort in India, though the same facts are often reached by the torts above.
• The criminal law runs alongside, and the practical first step is ordinarily a take down request to the platform.

7. What the Law Still Lacks

• There is no Indian statute conferring personality or publicity rights, and their content has been developed case by case, largely at the interim stage.
• There is no statutory tort of invasion of privacy.
• The Digital Personal Data Protection Act, 2023 creates a penalty regime enforced by a Data Protection Board, and not a private right of action in damages for the person whose data was misused.
• Whether a personality right survives death, and for how long, is unsettled in India, and the question matters for estates of deceased performers whose likenesses can now be synthesised.
• So the civil remedy remains the ordinary law of torts, applied to facts its authors never contemplated, which is what the law of torts has always done.

8. The Position Stated Shortly

1. Personality rights protect the commercial value of a person's identity, where privacy protects him against exposure.

2. The identity protected includes his name, image, likeness, voice, signature and any other indicium by which he is recognised.

3. The right of publicity requires identifiability, commercial use, and the absence of consent, and actual confusion need not be shown.

4. It is enforced in India through passing off, through privacy under Article 21, and by injunctions granted in recognition of the right itself, there being no statute conferring it.

5. Rajagopal draws the line with freedom of speech: the right yields to the public record, to voluntary entry into controversy, and to reporting on a public official's official conduct absent reckless disregard for truth.

6. There is no prior restraint on publication, a position reinforced by Bloomberg v. Zee in 2024.

7. A deepfake may engage defamation, privacy, personality rights, passing off and malicious falsehood at once, and falsity is not always the gravamen.

8. The practical difficulty with synthetic media is identifying the defendant, so the claim is usually directed at removal through the intermediary under section 79 of the Information Technology Act, 2000.

9. Doxxing is actionable as public disclosure of private facts, and the foreseeable harassment that follows may found a claim in negligence against the publisher.

10. The Digital Personal Data Protection Act, 2023 creates a penalty regime and not a private right of action in damages, so the civil remedy remains the ordinary law of torts.