ABSTRACT:
The digital economy has contributed to the hybridization of personality as a legal interest, originally territorial but now at once based on constitutional dignity and liable to commercial exploitation on its own. The courts in India through privacy jurisprudence and injunctive rights, though renatured itself and recognised aspects of personalities and publicity. Yet the lack of legislative codification has created a dictatorship within doctrine and deficiency in regulations especially in the age of artificial intelligence driven identity replication. This affirms that judicial development has reached its structural limits. India needs to move away from incremental adjudication to statutory consolidation in the form of a limited Personality Protection Act, which harmonises such basic rights as dignity, economic worth, and freedom of expression in a proportionally bound constitutional dispensation.
KEYWORDS:
Personality rights in India, Digital economy and law, Privacy and publicity right, AI driven identity replication, Injunctive relief, Constitutional dignity, Personality Protection codification,
INTRODUCTION:
Identity has been monetised into infrastructure. In the modern digital marketplace, a name is a brand, a voice is replicable information, and a likeness is replicable content. Technological advancements and generative artificial intelligence in particular have made personality separate from physical presence. Identity can now be cloned-on a large scale, manipulated and exploited commercially. However, Indian law still covers the protection of personality through other indirect doctrinal routes, the protection of privacy, passing off and equitable injunctions. While the protectability of persona has been recognised by courts the law is structurally unorganised. The central argument advanced here is simple: personality jurisprudence, in India, has grown in its doctrinal and is institutionally incomplete as well. Legislative architecture is not an option anymore but of necessity.
Constitutional Foundations:
The normative base of personality protection is Article 21.
In Justice K.S. Puttaswamy (Retd.). v. Union of India, (2017) 10 SCC 1 under the principle of information self-determination was a constitutionalisation of privacy through dignity and autonomy. The judgement included confirmation that freedom of control over personal information is an integral part of freedom.
Earlier, in R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, the authority of the individual to prevent the unauthorised publication of details of the private life were recognised by the Court with the reservation that such details can be had public only under such limitations as may be for the public record. Although this reasoning occurred within the context of the privacy doctrine, the reasoning implicitly acknowledged that personal identity is legally protectable.
These decisions determine the dignitary dimension of personality. Yet constitutional recognition has not resulted in specified commercial hurts or addresses, established modes of redress or regulation suggestiveness for emerging technologies.
Publicity Right and Judicial Expansion:
The commercial dimension of personality came out in more clarity in International Commercial Code Development (International) Ltd. v Arvee Enterprises (2003 SCC OnLine Del 148) wherein the Delhi High Court recognised the right of publicity is vested in the person and prevents unauthorised commercial exploitation.
More recently, Anil Kapoor v. Simply Life India & Ors., 2023 SCC OnLine Del 6914, giving judicial protection to AI-generated misuse of Name, Voice and Likeness. The Court admitted that digital replication is actionable personality infringement, even without physical impersonation.
These sorts of decisions are symptomatic of doctrinal flexibility. However, they are reactionary and litigation dependent. There are variations in standards of quantification. Preventive compliance mechanisms do not exist. Judicial recognition, although progressive, can hardly replace any systematic regulation.
The hybrid Nature of Personality Rights:
Indian personality jurisprudence follows a hybrid model implicitly.
Personality is not all dignitary, and neither is it all proprietary. It safeguards autonomy under Article 21 at the same time as safeguarding the economic value attached to persona. This dual nature distinguishes between personality rights and those with traditional leadership structures of intellectual property protection or privacy arguments based on seclusion as subjects.
A hybrid right requires doctrinally, which means cohesion. With all the lack of codification associated with the doctrine, the courts are vacillating between constitutional reasoning and commercial misappropriation reasoning, creating an environment of conceptual ambiguity. Legislative clarification would have the effect of unifying these strands.
Persuasive Comparative Authority:
Comparative experience has shown that codification is possible in the context of free expression.
California’s Civil Code, 1872 inclusive of protection of name, voice, signature, photograph and likeness from unauthorised commercial use, Civil Code Section 3344. It provides for actionable behaviour, imposes statutory damages and also recognises a limited post-mortem right. Crucially, it contains exemptions to the news reporting and expressive works in order to preserve an illegally balanced constitution.
In the United Kingdom protection by passing off -in Irvine v. Talksport Ltd [2002] EWHC 367 (Ch) False Endorsement: Commentary suppressed. The comparative lesson is being clear in structures. Where the issue of identity takes on material economic importance, choosiness in legislation promotes certainty without losing expressive freedom. India’s proportionality-based framework for the Constitution needs some similar codification.
The free speech objection:
Any proposal for codification runs the risk of an overreach.
Article 19(1)(a) is the freedom of speech that includes commercial speech i.e. Tata Press Ltd., and Mahanagar Telephone Nigam Ltd. (1995) 5 SCC 139. Overbroad protection of personality could have a chilling effect on satire, parody, and artistic expression or reporting on matters of public interest. The answer to this lies not in the rejection of codification, but in devising the codification with care. A Personality Protection Act must specifically limit liability to unauthorised commercial exploitation and deceptive endorsement but represent expressive and journalistic uses. Proportionality the undertaking of Puttaswamy – should serve as an interpretative principle of law, which is statutory. Regulation must be directed against commerce and not criticism.
Why codification is Structurally Necessary:
Three aspects of the structure make legislative intervention imperative.
First, artificial intelligence has made it possible to clone identities on a scale that makes injunctions case by case rather useless. Second, identity monetisation is now reaching beyond celebrities; protection should not be subject to litigation capacity. Third, doctrinal ambiguity makes digital platforms, as well as advertisers, unsure about compliance incentives.
Codification as a tool of personality would take personality protection from episodic adjudication, it would bring order governance.
Towards a Personality Protection Act:
A narrowly tailored statute should:
- Define attributes of protected personality which includes digital and synthetic likeness
- Distinguish between dignitary harm and commercial misappropriation
- Clear and Time-Bound Consent:
- The Act must require that consent for the commercial use of a person’s name, voice, likeness, or any AI-generated replication be prior, express, informed, and in writing.
- Consent must clearly specify the purpose, medium, territorial scope, and duration of use. Where a contract defines a time period, the authorization shall strictly operate within that term. If no duration is mentioned, consent shall be presumed valid only for a reasonable commercial period not exceeding three years, unless renewed through fresh written agreement. Perpetual or blanket consent clauses shall be narrowly construed and subject to proportionality review. The individual must retain a right of prospective revocation, subject to legitimate contractual reliance.
- Provide for the recovery of calibrated statutory damages
- Recognise low level post-mortem protection and
- Incorporate express exemptions of the right to protect journalism as well as protection of parody and artistic expression. Such a framework would operationalise Article 21 dignity leaving Article 19 (1) (a) freedoms intact.
CONCLUSION:
Indian courts have built the philosophical basis of the right to personality. They have recognised the importance of identity as a constitutional value as well as an economic interest. But doctrinal development but no legislative consolidation results in fragmentation.
In an age characterized by imitation of synthetics and commodifications of digital things, it’s not enough to be reactive by injunction. Instead, what is called for is institutional design.
Codification would not lead to evolution of Constitutional rights; it would lead to stabilisation. It would not censor speech, it would “draw the line.” It would not displace the judicial authority, but on the contrary, it would reinforce the coherence.
The evolution of the jurisprudence of personality in India has been step-by-step. Its future is not a result but must be intended.
A Personality Protection Act is no more an aspiration than reform and constitutional necessity.
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WRITTEN BY: TANUSH RAJ
