The Limits of Publicity Rights

Deepfakes are AI-altered audio, visual, or audio-visual content depicting individuals in a highly realistic manner, generated through deep learning. They include image reconstructions, voice cloning, and pornographic material. As publicity rights protect the commercial appropriation of one’s persona, including name, image, likenesses, and voice, celebrities such as Jackie Shroff, Arijit Singh, Aishwarya Rai, Anil Kapoor, have secured injunctions against platforms and creators for blocking deepfake content. Yet, publicity rights can be an inappropriate avenue to address deepfake harm.

Publicity rights in India lack a coherent doctrinal rationale, with courts frequently conflating the tort of passing off with the constitutional right to privacy. Stemming from the former, publicity rights are commercial in nature and penalise deceptive misrepresentations in trade based on a finding of goodwill; confusion; and resulting damage. Indian courts, however, have repeatedly presumed confusion merely based on the identifiability of a celebrity, without assessing whether consumers were indeed misled. This doctrinally flawed approach, coupled with expansive remedies like dynamic, even ex-parte injunctions, effectively grants celebrities an excessive monopoly over image-related use even when harmless or expressive, thus chilling free speech and trade. For instance, in Mohan Babu, an ex-parte injunction restrained even subscribers of YouTube channels from using the name/image of the actor.

As ex-post facto remedies that don’t prevent deepfake creation, publicity rights actions only help celebrities who can afford expensive litigation, leaving ordinary people vulnerable. Focused on the celebrity’s commercial interests, they also do not address wider misinformation harms that may endanger public safety, such as in the Ankur Warikoo case, where deepfakes offered falsified financial advice, risking serious consumer harm.

Deepfakes involve malicious AI-generated impersonation resulting in privacy, autonomy and dignity harms, which affect vulnerable groups disproportionately. Female celebrities including Rashmika Mandanna, Alia Bhatt, and Katrina Kaif have been subjected to non-consensual sexual deepfakes, a form of technology-facilitated gender-based violence. Publicity rights do not capture these harms that directly threaten the constitutional guarantees under Article 21, as affirmed in Puttaswamy. While there may be an overlap, relying on publicity rights to address deepfakes risks further doctrinal confusion and could suppress legitimate Gen-AI uses.

MeitY’s Platform-Governance Amendments

The proposed amendments mark India’s first step towards deepfake regulation at intermediary level. However, they risk undermining lawful expression.

First, the requirement for platforms enabling the creation of  synthetically generated information (SGI) to label such content with permanent metadata is grounded in an expansive definition. The proposed Rule 2(1)(wa) defines SGI as: ‘artificially or algorithmically created, generated, modified or altered using a computer resource, in a manner that such information reasonably appears to be authentic or true’. While promoting transparency, the definition prioritises technical modification over deceptive intent, sweeping within its ambit even harmless alterations like photo filters, memes, cinematic enhancements, and scientific simulations. Echoing the overreach seen in publicity rights enforcement, this threatens overregulation of creative expressions. By contrast, the EU’s Artificial Intelligence Act focuses on deceptive potential, offering a narrower and more targeted model.

Second, the rule’s effectiveness also depends on whether Gen-AI models qualify as ‘intermediaries’ under the Information Technology Act, 2000 (IT Act). As such an intermediary typically performs a passive role limited to hosting or enabling transmission, rather than content-creation, few AI models would meet the mark, limiting enforceability. This imposes compliance burdens on intermediaries while leaving unregulated model developers, encouraging over-enforcement by platforms without addressing deepfake generation at its source.

Third, the proposed amendments risk undermining the safe harbour principle under Section 79 of the IT Act, which grants intermediaries immunity from liability based on their inability to screen massive volumes of user-generated content. Encouraging proactive content-policing while retaining the immunity fundamentally contradicts the rationale for safe harbour and might incentivise excessive moderation and automated filtering, disproportionately impacting free expression.

The proposed amendments represent a mid-layer regulatory intervention into India’s deepfake crisis,  placing primary obligations on intermediaries rather than upstream developers or trainers who design and deploy technologies capable of deceptive synthetic data generation or the downstream malicious actors who generate and circulate deepfakes. While potentially reducing reliance on expensive litigation, this is likely to encourage precautionary moderation practices resulting in over-censorship and chilling effects on legitimate expression by online creators and speakers, impacting political spoofs, parody, and satire.

Genetic resources are a form of biodiversity that comprise valuable plant, animal, or microbial material containing functional units of heredity. They are often utilised by indigenous communities applying know-how, skills or practices embedded in their traditional knowledge systems which may carry cultural, religious or spiritual value. The Convention on Biological Diversity (CBD) 1993 and the Nagoya Protocol 2010 have emphasized the urgency to conserve the environment by regulating access to genetic resources based on principles of prior informed consent and mutually agreed terms with indigenous communities. This extends to prevention of misappropriation through patenting, wherein, a patentee secures the exclusive right to commercially exploit any genetic resources or traditional knowledge through inclusion in its invention, excluding even the community itself. For instance, hard battles have been fought to thwart attempts by corporations and researchers to patent the medicinal properties of turmeric and neem plants used in India and the cosmetic benefits of the Vitamin C-rich Australian Kakadu plum used by indigenous communities. To prevent this, the WIPO Treaty imposes disclosure obligations on patent applicants intended to perform a watchdog function against potential misappropriation. However, the obligations imposed are weak.

First, the only information that applicants are required to disclose are the ‘country of origin’ of any genetic resources used, and where traditional knowledge is involved, the name of the indigenous community. This requirement is further diluted by the option available to applicants to declare such information as not known, leaving scope for circumvention of the rule through either outright omission or, as explained by Prof Peter Yu, creative drafting and interpretation.

Second, the information sought is arguably so unspecific that it may prove challenging to trace it back to the actual exchange between the applicant and the community, making it difficult to evaluate whether it took place through unfair terms. As traditional knowledge is often used and passed down orally and is far removed from formal systems of documenting knowledge like scientific journals, experimentation data, etc, it is difficult to investigate such interactions without specific details.

Third, despite having originated from CBD and Nagoya Protocol’s vision, the treaty does not require any form of evidence of consensual acquisition, or of any compensation paid to the communities. While the earliest draft of the treaty proposed by the Colombian delegation sought an entire copy of the agreement between the applicant and the community contributing the knowledge, the WIPO treaty entirely omits this.

Fourth, the WIPO Treaty further bars countries from invalidating patents as a sanction for non-disclosure except when fraudulent intentions can be proven, thereby removing any actual threat against misappropriation. Fraudulent intent is undefined, and unlikely to be easily proven, as the treaty disallows countries from requiring patent offices to undertake diligence exercises to verify disclosures. Lack of scientific, financial and legal resources available to indigenous communities may also make it challenging to pursue claims. Countries like India and New Zealand which already allow for patent invalidation in such cases remain outside the scope of the treaty.

The present form of the treaty denies indigenous people fair rewards for their innovative efforts, in favour of preserving status-quo in the billion-dollar profit-making patent system. This compromises their rights over their intellectual property, acknowledged in the UN Declaration on the Rights of Indigenous Peoples.

While the non-invalidation clause seriously limits the options available, signatories may choose to adopt disclosure obligations beyond the minimum floor set by the treaty. They may ask for details of compliance with Nagoya Protocol’s access and benefit sharing rules; hire external experts at the patent office to carry out disclosure diligence; and educate and sensitize indigenous communities to protect their traditional knowledge and register intellectual property rights over them if suitable. However, the treaty’s endorsement of lower thresholds, alongside the pressure from industrial lobbies makes this challenging.

The Bill proposes to enhance the 12-week period up to which abortion is permitted based on a positive opinion from one registered medical practitioner to 20 weeks. It further proposes to allow abortion between 20 to 24 weeks upon affirmation by two medical practitioners. However, these allowances continue to depend on whether the practitioners are satisfied that continuing with the pregnancy poses a life risk or a risk of grave injury to the woman’s physical or mental health, or a risk of serious birth abnormalities.  Previously, only married women could seek abortions due to contraceptive failure in the 20-week limit. The Bill makes this available to all women. In addition, rape survivors can seek abortions for up to 24 weeks. Another reform proposed is the complete removal of any gestational limit when substantial foetal abnormalities are diagnosed. This would legalise abortion of foetuses suffering from life-limiting conditions detected towards the later stages of pregnancy.

Despite these advances, the Bill does little to reform the defects inherent in India’s abortion policy. MTPA does not recognise abortions as an extension of the right to bodily autonomy but as an exception from the crime of causing miscarriage, for which women can be held liable under the Indian Penal Code. In the US Roe v. Wade and Canadian R. v. Morgentaler cases, the US and Canadian Supreme Courts struck down similar provisions that prohibited abortions by the threat of criminal sanction, granting constitutional protection to reproductive choices. Similarly, the Bombay High Court has held that forcing a woman to continue with an unwanted pregnancy violates her bodily integrity. Further, the Indian Supreme Court’s Puttaswamy and Navtej Johar judgments too have upheld sexual and reproductive autonomy as a facet of privacy under Article 21. Moreover, CEDAW’s General Recommendation 35 declares forced pregnancy and denial of access to abortion an act of gender-based violence.  Reproductive decisions impact one’s whole life, and women’s right to choose the life they want in the way that men can lies at the very heart of gender equality under Article 14.

At present, MTPA authorises the medical practitioner(s), to decide whether conditions are adequate to warrant an abortion. While a previous amendment bill tabled in 2014 had proposed abortion on request up to 12 weeks, wherein no reasons would be demanded from a woman seeking an abortion, the present Bill reverts to the medical practitioner-centric approach. It requires cases of substantial foetal abnormalities to be heard by a ‘Medical Board,’ which creates room for delay. The woman’s ‘reasonable foreseeable environment’ may be considered, but by the medical practitioner(s). These practitioners are likely to be influenced by their own biases. Additionally, despite the Supreme Court’s recognition of LGBTQ+ rights in NALSA and Navtej Johar decisions, the Bill retains the term ‘woman,’ perpetuating the exclusion of intersex and transgender persons. Such a policy preserves MTPA’s patriarchal and paternalistic philosophy.

The Bill further proposes a confidentiality mandate, but permits disclosure to persons ‘authorized by law.’ It also fails to recognise safer, WHO-recommended methods of carrying out abortions such as through vacuum aspiration or abortion pills.

Discourses on abortion in the West typically revolve around the sanctity of human life and determining when it begins to fix gestational limits. In India, while gestational limits are far more liberal compared to jurisdictions such as Alabama and Ohio, the law treats abortion as an exemption allowed by the State on its terms. India currently stands behind 67 other countries (including China, Nepal, Russia and Vietnam) that provide abortion on request at gestational limits ranging between 12 to 22 weeks. The Bill is undeniably reformative and comparatively inclusive, yet by refraining from decriminalising abortion and recognising it as a right, it fails to realise the Puttaswamy vision.