Complexities Concerning Encroachment Of Privacy In Biopics




We all are very fond of listening to stories. Biopics are basically stories coming to life on a big screen about fascinating real-life personalities. We get a small peek into their lives, consisting of their triumphs, failures, struggles and also glimpses of their personal lives. While these stories are very entertaining for us, and we as the audience are thoroughly satisfied, but ‘Biopics’ are often treading a very thin line between the Right to Privacy and Creative freedom.

Right To Privacy

As we all have heard about the landmark judgement K.S. Puttaswamy v. Union of India (2017), wherein Right to Privacy was recognised as a fundamental right, under Article 21 of the Constitution of India. Eminent personalities or ‘celebrities’, often find their privacy being invaded, for the sake of commercial gains for the industry and their rights are persistently being abused. People tend to personalize these personalities, resulting in their personal space getting badly encroached. Along the lines of Right of Privacy there arises the Right to Publicity. The right to publicity allows individuals, especially public figures, to control the commercial use of their identity and personal characteristics. There is no specific statutory framework for celebrity or publicity rights in India; these rights have developed through judicial decisions. . In the case of Rajagopal v. State of Tamil Nadu, the principles had been laid by the apex court regarding right to Privacy, wherein it was held that a citizen had the right to safeguard his own privacy and no one had the rights to produce any publication regarding the same without their consent and that private matters cannot be published without consent unless the person is already in the public eye or the information is part of public records.

Biopics: Right To Privacy v. Right To Public Interest

Biopics, though often celebrated for their ability to bring to light the lives of eminent personalities, pose significant challenges to the right to privacy. These cinematic portrayals can intrude upon personal privacy by divulging sensitive information, personal struggles, and intimate moments that the individuals or their families might wish to remain confidential. Such revelations can result in emotional distress, reputational damage, and unwanted public scrutiny. The depiction of real-life figures without explicit consent and thorough consideration of their private lives can cross ethical and legal boundaries, converting the complexities of individual lives into sensationalized narratives for public consumption. On this account, the subject of posthumous rights (rights after death) has been a contentious area, with courts generally holding that privacy rights do not survive death.

Posthumous Rights Of Privacy

In the “Veerappan I case,” Veerappan’s wife sought an injunction to prevent the airing of a television serial based on her late husband’s life, claiming it would breach the privacy rights of herself, her daughter, and her husband. The Madras High Court ruled that Veerappan’s right to privacy did not survive his death and noted that he had not objected to similar publications during his lifetime. The show’s producers agreed not to depict the personal lives of Veerappan’s wife or daughter, focusing only on public records, so the court did not grant an injunction. In the subsequent “Veerappan II case,” Veerappan’s wife again sought to block a film, “Vana Udham,” on similar privacy grounds. The court allowed the film’s release, provided it only used public records and excluded personal aspects of Veerappan’s family life, reaffirming that consent is required for depicting private family matters.

In the case of Deepa Jayakumar v. A.L. Vijay & Ors, the Madras High Court addressed post-mortem rights once again. The plaintiff, Deepa Jayakumar, the niece of the late Dr. Jayalalitha, sought to block the release of the film “Thalaivi” and the web series “Queen” arguing that depicting her aunt’s life would breach her privacy and her aunt’s post-mortem rights. The court ruled that privacy rights do not extend beyond an individual’s death and cannot be inherited by legal heirs. It also found that the plaintiff’s privacy was not violated as she was not depicted in the film. Regarding potential defamation, the court noted that since “Thalaivi” had not been released and “Queen” was not marketed as a biography, her claims were speculative. Therefore, the court did not grant an injunction, emphasizing the filmmakers’ freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. The plaintiff was advised that her only remedy could be a claim for damages.

In the case of Krishna Kishore Singh v. Sarla A. Sarogi & Ors., the Delhi High Court addressed post-mortem rights concerning the deceased actor Sushant Singh Rajput. The actor’s father sought an ex-parte, ad-interim injunction to prevent producers from using his son’s name, likeness, or life story in upcoming films. He argued that such depictions would violate the post-mortem privacy and personality rights of his son. Despite a prior statement in September 2020, asserting that no films, books, or series should be made without his consent, several producers proceeded with projects. These included “Nyay: The Justice,” “Suicide or Murder: A Star Was Lost,” “Shashank,” and an unnamed crowd-funded film. The defendants argued that their works were fictionalized renditions inspired by public news coverage and not direct biopics, with disclaimers stating the same. The court’s decision on whether to restrain these productions is pending, highlighting the on-going legal debates about post-mortem rights and creative freedom. The Delhi High Court, while denying the injunction, highlighted key legal principles in a recent case involving biopics. The court emphasized that films in question included disclaimers distancing themselves from directly portraying the celebrity. It made a significant finding equating the plaintiff’s claims about his son’s persona to intangible or commercial property rights, akin to copyright claims. The court referenced the Copyright Act, 1957, which specifies that historical, biographical, or news facts are not copyrightable as they belong to the public domain, available for anyone to use. This ruling suggests that movies based on such events are permissible without specific consent, diverging from earlier principles where depictions without public record status could breach publicity rights. This judgment sets a potential precedent for filmmakers, providing a legal basis to create biopics or films based on historical events, bolstered by the notion that such events are part of the public domain and not privately owned information.

Inference & Further Implications

For filmmakers, the challenge lies in balancing the creative freedom to tell compelling stories with the responsibility to respect personal privacy. Consent from the individual or their legal heirs, is crucial, as is ensuring that portrayals are accurate and sensitive. In summary, the legal position regarding biographical depictions of individuals indicates that content creators can portray factual aspects found in public records without specific consent. However, any portrayal of other aspects of an individual’s life typically requires explicit consent. If an individual has previously allowed their life or events to be depicted, subsequent biographical exploitation may not be restrained at an early stage of legal proceedings. Productions that do not reference the individual and include clear disclaimers disassociating the content from the individual may prioritize creative expression over publicity or privacy rights. It’s crucial to note that court decisions in such cases depend heavily on the specific factual circumstances involved. Therefore, it is advisable for filmmakers to engage with individuals or their families whose lives are being portrayed or exploited in biopics before proceeding with such projects.

Authors: Malabika Boruah & Muskan Modi



Interns and Paralegals.


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