OVERVIEW
In India, where social media quickly escalates trends, moment marketing has become a popular tool for brands to connect with audiences in real time. However, in a market where sensitivity is the key, brands need to be more cautious, balancing their creativity with legal edges to avoid potential controversies or regulatory pitfalls.
This Article aims to provide: (a) an understanding of momentum marketing and its relevance to personality rights; (b) an overview of the current legal framework for personality rights in India; (c) the scope of protection offered under personality rights; and (d) whether congratulatory posts are generally permitted or restricted under existing laws.
UNDERSTANDING MOMENT MARKETING
Moment marketing refers to a strategy where brands capitalize on current events to gain relevance and advertise their own product and services by associating themselves with the positive sentiment surrounding that particular event. Recently, moment marketing has sparked controversy, particularly involving non-sponsoring brands using images and videos of Indian Olympic medalists in their advertisements. Such brands are facing legal notices for infringing on personality rights, as reported by representatives of such Indian athletes. One example of this issue is Manu Bhaker's situation, where her team issued notices to certain brands demanding the removal of posts and videos that used her images without her consent. As such use may infringe upon a celebrity's publicity rights, which grant individuals control over the commercial use of their name, image, and other personal attributes.
LEGAL FRAMEWORK OF PERSONALITY RIGHTS IN INDIA
Article 21 of the Indian Constitution is the closest law that safeguards personality rights in India. However, as it does not provide any view with respect to the commercial aspects of personality rights, Indian courts have interpreted the Consumer Protection Act, 2019, Copyright Act, 1957, and Trade Marks Act, 1999 to grant protection of certain features of the right to personality. The case of D.M. Entertainment Pvt. Ltd. vs. Baby Gift House and Ors.1 is the primary case in India that dealt with the commercial aspect of personality rights for the first time, the Court found that using Daler Mehndi's persona to promote commercial products was improper and diluted the uniqueness of his identity. This misuse created a false impression that the plaintiffs had authorized or were connected to the defendants in marketing the artist's image. The Court further noted that placing excessive emphasis on a celebrity's publicity rights may make it more difficult for others to exercise their fundamental democratic right to free speech in a democratic society. As a result, the Court decided that satirical depictions, parodies, and lampoons that highlight particular facets of a person's personality may not violate that person's right to publicity.
SCOPE OF PROTECTION UNDER PERSONALITY RIGHTS
The Delhi High Court in the case of Titan Industries vs. M/s. Ramkumar Jewelers2has ruled that “When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control commercial use of human identity is the right to publicity.” It was affirmed that the right to control how and when one's identity is used in advertising constitutes the right to publicity.
The case of Anil Kapoor vs. Simply Life India & Ors.3further broadened the scope of personality rights to include not just an individual's overall persona but also certain mannerisms, such as speech patterns, gestures, and signature phrases. For example, the distinctive delivery of the phrase "Jhakaas," which reflects the unique energetic style, has been recognized as part of personality rights. The court relied on the principle of livelihood to grant such rights as endorsement is a major source of livelihood for the celebrity.
A different approach was taken in the recent case of Jaikishan Kakubhai Saraf alias Jackie Shroff vs. The Peppy Store & Ors.4 where the court did not rely on the right to livelihood to uphold personality rights. Instead, the court focused on rights to personality, publicity, and moral integrity and protecting the statutory rights associated with the trademarks "BHIDU" and "Bhidu Ka Khopcha," which are registered in various classes.
To summarise, satire, authentic parody, and news are all protected under the right to freedom of speech and expression, they must be balanced against the right to publicity. If the right crosses the line and results in the tarnishing, unauthorized use, blackening, or jeopardizing of an individual's personality or associated attributes, such actions would be deemed illegal.
ARE CONGRATULATORY POSTS PROHIBITED?
To determine whether such posts violate publicity rights, it is essential to assess the intention behind such use whether it is used for commercial advertisement or for publicizing its goods and services. In the case of Digital Collectibles Pvt. Ltd. vs. Galactus Funware Technology Pvt. Ltd.5, it was held that not all commercial uses are inherently prohibited, uses for lampooning, satire, and similar purposes are protected under freedom of speech. Therefore, congratulatory posts are permitted unless they are used for unfair marketing or advertising.
Also, the advertisements cannot promote a product using the other person's name or likeness without the expressed consent of such person, and any such references must be made explicit in the advertisement, according to the guidelines provided by the Advertising Standards Council of India.
IN A NUTSHELL
Moment marketing and personality rights present a complex legal landscape in India. The brands which look to capitalize on events and athletic achievements shall ensure that the same is within defined boundaries as interpreted by courts through various judgments, which have extended the scope of personality rights. While congratulatory posts are generally permissible, brands should exercise caution to avoid any unauthorized commercial uses. Though courts have tried to create a balance between the right to freedom of speech and the right to publicity. But to avoid any infringement and liability the brands shall obtain express consent from the concerned individual and clearly disclose any commercial intent in their advertisements.
As the digital landscape evolves, the legal framework surrounding personality rights is likely to continuously develop, requiring the legislature to recognize these rights and formulate a statutory law to fill the gap.
Footnotes
1. (CS(OS) 893 of 2002)
2. (CS(OS) No. 2662 of 2011)
3. (CS (COMM) 652 of 2023)
4. (CS(COMM) 389 of 2024)
5. (CS(COMM) 108 of 2023)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.