Freedom of speech and expression guaranteed in the Constitution of India is a pivotal part of Indian democracy. The freedom to form and express an idea, opinion or criticism encourages public discourse on vital domains of society. Movies are also part of this domain due to their sheer influence on the society which inherently makes them subject of discussion and criticism. However, the influence of stardom often hinders this open and healthy discourse that comes in the form of reviews. Recently film critique Kamaal R. Khan (“KRK”) fell into trouble when he criticized Salman Khan (“Khan”) starer “Radhe”. Post KRK’s review of the film on a video streaming platform, Salman Khan’s team attacked him with full force. The battle ultimately dragged KRK into the court leading to an interim order that restricted him from reviewing any of Khan’s movie until the matter comes to finality.
The court case was basically a defamation one where Khan’s legal team contested that the alleged review is agaisnt the reputation of the star and should be considered defamatory. Though KRK defended his review as his right to express his opinion, the court inclined to find his reviews as “irreparable loss to the image of the plaintiff in the society.” This article will look into two aspects: Should KRK’s review be struck down as defamatory and restrict his freedom of expression? Can Personality Rights be invoked by Salman Khan agianst the review?
Firstly, it is important to understand that though the defamation suit was filed by both Salman Khan as an individual and as a production venture agaisnt KRK, it is unclear what exactly their arguments are as the matter is sub judice. But inferring from the interim order, the contentions of Khan’s team inclined primarily on the individual identity of Salman Khan and not the production house. Importantly, on close inception of alleged defamatory review by KRK, it is clear that the criticism has been on the plot, direction, visual effects, and songs of the movie.
Unlike in the case of Jayalalithaa and Ram Dev, where the respective books were targeted on these personalities. KRK’s comments on Khan were in reference to his role in the movie itself. Point being his statements were not personal attack on Khan that could tarnish his image but his role which is subject to criticism as freedom to express. Thereby, Bombay High Court’s understanding of defamation has been incorrect with the given facts.
Further, the Bombay Civil Court found reputation of individual as the “purest treasure”. The reasoning of the court was similar to the Delhi High Court’s in Swami Ramdev v Juggernaut Books where court established that right to reputation cannot be sacrificed at altar of freedom of expression of another, both need to be harmonized as no amount of damage could heal damage to reputation. However, in Harbhajan Singh court held that a defamation is non-objectionable if it is done in good faith. Section 52 of the IPC defines good faith as act done with due care and attention. It is argued that KRK’s statements were in good faith as they were based on facts available in the public records like criticism of the director of the film, Prabhu Deva who is a choreographer by profession and not a director. In Rajagopal court held that, publication on individual’s private life is unobjectionable if it is either based on public records or supported by reasonable verification of facts. KRK’s critique on Khan’s physical appearance and impersonated age in the movie is again based on due verification and public records which makes his comments unobjectionable.
Therefore, KRK’s critique of Khan’s Radhe cannot be objected as defamatory because first, the criticism is directed on the movie and not on individual identity of Salman Khan, and second, the criticism is based on good faith backed with verifiable facts in public records. Further, following Swami Ramdev’s jurisprudence of harmony, the freedom to express should be protected in the given case as there is no damage to the reputation of an individual or company.
Personality Rights refers to right associated with the personality of the individual. It provides the authority to an individual to control the commercial use of their personality by not expressly allowing such use. Though there is no statutory provision that specifically deals with this right, however, it has been read within the meaning of Right to Life as guaranteed under Article 21 of the Constitution. Personality Rights can further be divided into right to privacy and right to publicity. While the Right to Privacy provides a personality to keep certain part of their life as private which a third party cannot bring in public domain without due permission. The Right to Publicity gives authority to the personality to control the commercial exploitation of their personality which includes name, photograph, signature, voice, etc. Ironically, despite the contrasting nature of these rights, both find legal relevance within Article 21 of the Constitution.
Invocation of Right to Privacy agaisnt KRK:
In landmark case of Puttaswamy court held that an individual has right to exercise control over commercial use of their identity. Earlier, in Rajagopal v. State, court established that right to privacy is guaranteed within right to life and personal liberty under Article 21. Anything published without consent of such person is violation of right to privacy, irrespective of intent of publication. However, court also found that right to privacy cannot be invoked if the published information is already in public records or if a person voluntarily thrusts a controversy. It has already been argued in defamation section that KRK’s criticism was based on information already in public domain. Further, it can be argued that implantation of the visual effects and the general nature of movies makes them voluntarily thrusted into controversy.
Invocation of Right to Publicity against KRK:
In Titan Industries, court recognised right to publicity under which the personality has the right to control when, where and how their identity is used for commercial use. In Shivaji Rao Gaikwad court acknowledged that personality right has no definition under any statue in India, but courts have recognised this term in multiple judgements. Arvee Enterprises held that that right to publicity has evolved from right to privacy. In Giakwad the court also held that unauthorised use of name of a celebrity entitles such celebrity for injunction. The aforementioned judgments were reaffirmed in recent Krishna Kishore (Sushant Singh Rajput) case. In this case the Delhi High Court agreed that publicity right is not directly recognised by law but passing reference can be seen under Trademarks Act of 1999 and Copyright Act of 1957. Further, the jurisprudence established in previous judgements have encouraged it as a common law concept that allows celebrities to control commercial use of their identity.
It is apparent that KRK used Khan’s identity to make commercial gains from his review videos. He also used his name to reach wider audience which includes repeated tweets about the movie. Following rationale in above mentioned cases, it is argued that right to publicity is inclined in favour of Salman Khan. It can be well argued that KRK was using Salman’s identity without due permission which can be inferred to infringe his right to privacy guaranteed under Article 21.
Analysing Alternate Factual Scenario:
Khan’s legal team issued a statement lately that the defamation suit was not on KRK’s review of Radhe but due to his allegation agaisnt Salman as being corrupt. Though KRK has argued agianst this clarification, but this clarification can overhaul the legality of the suit if it stands true.
If the matter is based on this clarification, the statements of KRK against Salman Khan tends to tarnish the individual identity of Salman Khan. Invoking Jayalalithaa and Ramdev, the statements target Khan without due verification of allegations. In this scenario, right to reputation will be weighted more than the freedom of speech and expression of KRK. The allegations are also not based on public records that could have made the statements published in good faith.
This also means that Salman can now use right to privacy as part of his personality right to contend that KRK has infringed his privacy by making unverified allegations. In the clarification by Khan’s legal team, they also alleged that KRK spoke against brand “Being Human” which is a not-for-profit organisation. Invoking right to privacy, it can be argued that KRK has infringed Khan’s privacy by making defamatory statements agaisnt his social deeds. Used along with right to publicity, it seems apparent that KRK has infringed rights of Salman Khan and may face civil as well as criminal consequences.
The matter is popular in public discourse and cotemporary due to involvement of such big names of Bollywood industry. However, from a legal perspective, this case will play a pivotal role in establishing jurisprudence on the scope of defamation in Indian legal framework. This is important because film critique is a budding profession where sometimes critics go beyond virtual boundaries which may defame an individual actor(s) of the film. Further, this case can be a landmark case on personality rights in India which would reenforce the protection available to celebrities over larger public. Despite being a statutorily weak right, it can significantly drive the industry in the right direction where freedom of media to express balances with right to privacy and publicity of celebrities.
Milind is a penultimate year law student at Jindal Global Law School. His interest lies in the fields of Technology and Intellectual Property Laws. He can be contacted at firstname.lastname@example.org