Bombay High Court Prohibits Commercial Use of a Person’s Image Without Consent

In the case of Sakshi Malik v. Venkateshwara Creations Pvt. Ltd.[1], the Bombay High Court ordered the OTT platform, Amazon Prime to take down the Telegu film “V” produced by the Defendants based on allegations by the Plaintiff that her private photograph was used for commercial purposes of the film without her consent. The Court granted an ad-interim injunction restraining the Defendants from releasing or telecasting the film on any media platform until the objected sequence containing the image was deleted immediately. The Court further stated that it was not enough that the image be merely pixilated or blurred.

The Plaintiff, an actress/model in Bollywood claimed that the Defendants had used a photograph of the Plaintiff after taking it from her Instagram account without her permission. The Plaintiff claimed that the picture was from a privately commissioned photoshoot and the Defendants had used the photograph in relation to their film where there is reference to a female escort or commercial sex worker. The Plaintiff thus, not only claimed invasion of privacy and unauthorised use of private material but also claimed defamation due to the reference of the image with regards to a female escort.

On the other hand, the Defendants claimed that they had contracted with a commercial agency to obtain a suitable image and they were assured that they could legitimately use the image. However, the Court did not seem to agree with this argument and observed that, “It seems to me self-evident that it is not possible to use the image of any person for a commercial purpose without express written consent. If images are to be used without such express consent, they must be covered by some sort of legally enforceable and tenable licensing regime, whether with or without royalty. Simply using another’s image, and most especially a private image, without consent is prima facie impermissible, unlawful and entirely illegal. In a given case, it may also be defamatory, depending on the type of use.”

The Court allowed the Defendants to replace the deleted segment, if they wish to do so but without using any of the Plaintiff’s images without her express written consent. Furthermore, the Court ordered Amazon Prime to discontinue availability of the film within 24 hours and also obtain a specific Court order before releasing any re-edited version of the film.

To conclude, in light of the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021[2], social media and OTT platforms are clearly under the radar. In addition, personality rights and the right to privacy through social media platforms is also a major concern in the country today. In response to these rising concerns, the Bombay High Court has taken an appropriate decision to strongly condemn such unauthorised commercial use of a person’s image.

For any questions, please feel free to reach out to the author, Ms. Vrinda Sehgal, at vrinda@iprattorneys.com.

[1] Commercial IP Suit (L) No. 3510 Of 2021 [2]https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf