Courts step in to check AI-driven breaches of personality rights

Courts are increasingly stepping in to protect individuals’ rights over their appearance, voice and other attributes in the absence of a dedicated law as artificial intelligence (AI)-enabled misuse of identity surges, experts said. 

Courts across the country are relying on constitutional protections covering the freedom of speech and expression as well as life and liberty, principles against false commercial use of a person’s identity and provisions of the Copyright Act, the Trade Marks Act and the Information Technology Act, 2000, experts said. 

“Courts don’t grant personality rights, they recognise them. What the court examines is whether your identity has acquired enough commercial weight that someone profiting off it without consent constitutes an actionable wrong,” Isheta T Batra, Founder of law firm TrailBlazer Advocates, said. 

In practice, courts grant relief through interim injunctions, often ex parte (from one party), where plaintiffs establish a prima facie case of unauthorised use of their persona, such as name, image, voice, likeness or other distinctive attributes, along with irreparable harm and a favourable balance of convenience. 

Courts routinely issue “John Doe” or “Ashok Kumar” orders restraining unknown defendants, along with dynamic injunctions against intermediaries and platforms, said Lavin Hirani, Managing Partner at Hirani & Associates. 

John Doe (in foreign jurisdictions) and Ashok Kumar (in India) are orders where a victim knows his or her rights are being violated but doesn't know by whom. It basically stops unknown people from violating the rights of the person who has filed the case. 

Courts first assess the public association and status of the individual, followed by the nature of misuse, ranging from deepfakes and advertisements to counterfeit merchandise and even pornographic content, before granting interim relief, Shwetank Tripathi, a partner designate of ANM Global, said. 

These orders allow plaintiffs to subsequently implead additional infringers without repeated court intervention, the experts said. 

No definition of ‘celebrity’  While the broader definition of a “celebrity” is assumed to be anyone who has attained or gained enough fame to be followed by others, there is no statutory definition of a “celebrity” under Indian laws. 

Courts have instead evolved a functional test based on public recognition, goodwill and commercial value attached to a person’s identity, the experts said. 

“Film stars and singers naturally succeed more easily, but the door is not closed to others,” Hirani said, emphasising that any individual can approach a court, though success typically depends on demonstrating commercial harm. 

The Bombay High Court’s ruling in Arijit Singh versus Codible Ventures issued on July 26, 2024 offers a working test comprising demonstrable public recognition, identifiability from the infringing use, and commercial exploitation, Batra said. 

This approach has enabled courts to extend protection beyond the entertainment industry, the experts said.  

“The Dr Devi Shetty case shows that this doctrine is not limited to Bollywood,” Batra said, referring to the famed cardiac surgeon securing relief against AI-generated fake endorsements. 

Personality rights claims by non-celebrities, however, remain difficult unless clear economic or reputational harm is established, the experts said. 

“Miscreants typically target famous persons, not random individuals,” Tripathi said, though he added that ordinary individuals are not without remedies and may rely on other legal protections. 

AI triggers new disputes 

AI will, in time, emerge as one of the biggest disruptors, experts said, adding that deepfakes, voice cloning, digital avatars and synthetic endorsements have significantly lowered the barrier to replicating identity. 

“The AI challenge is not coming, it is here,” Batra said, noting that courts have extended injunctions to cover emerging technologies, including the metaverse. 

Hirani described AI as having “completely changed the game”, with what was once occasional merchandise piracy now turning into daily deepfake scams and fraudulent endorsements. 

Such cases now implicate broader concerns of consumer protection and public discourse, going beyond purely economic harm, Ankit Sahni, a partner at Ajay Sahni & Associates, said.  

Personality rights violations are increasingly being used as vehicles for financial fraud, with unsuspecting consumers misled by fabricated endorsements, said Gitika Suri, director of patents at Cyril Amarchand Mangaldas. 

Scope for contest and limits 

While courts have generally favoured plaintiffs at the interim stage, personality rights claims are not absolute. Defendants can contest such claims on grounds including lack of public recognition, absence of commercial exploitation, or the presence of satire, commentary or journalistic purpose. 

“A focused Personality Rights legislation would bring clarity and predictability,” Hirani said, particularly on issues such as posthumous rights, fair use and AI-specific obligations. 

Celebrity safeguards 

• Experts say courts don’t grant personality rights, they recognise them
• AI deepfakes and voice cloning trigger rising legal disputes
• Courts grant injunctions against unauthorised commercial use of identity
• Celebrities receive stronger protection due to commercial recognition and goodwill
• Experts seek dedicated personality rights law addressing AI challenges