[This post is co-authored with SpicyIP Intern Yukta Chordia. Yukta is a 4th year BA LLB (Hons.) student at Maharashtra National Law University, Nagpur and is passionate about Intellectual Property Law and Media and Entertainment Law, with a strong interest in ADR. Long post ahead.] 

In a short order, both in length and (unfortunately) in reason, the Delhi High Court on October 1 granted an overbroad dynamic style interim injunction (pdf) to the Telugu film actor Vishnu Manchu (the plaintiff) against a few Youtubers and John Doe(s). Alleging infringement of his moral rights, misappropriation of his personality rights, defamation, unfair competition, and passing off, Manchu filed the present suit seeking directions from the Court to take down the content by these Youtubers and John Doe(s). Following the recent trend (Like in the cases concerning Anil Kapoor, Jackie Shroff, and Arijit Singh), the Court passed a strongly worded order protecting the personality rights of yet another celebrity. However, in doing so, the Court passed an order that fails to provide the reasoning behind the interim injunction. Inadvertently, the Court might have opened the way for offering relief to (so-called?) celebrities who want to suppress / dislike free speech such as ridicule, satire, and the prevalent meme culture. A relief against being annoyed – something which we thought was left behind after the landmark Shreya Singhal judgement of the Supreme Court. In this post we’ll assess the order and take a look at the implications it can have especially on personality rights and free speech jurisprudence. 

The Allegations 

A plethora of allegations were levelled against the defendants and while some surely seem problematic and may warrant some form of intervention by the Court, others seem trivial (from a legal standpoint) and should not have been entertained by the Court. For the sake of brevity, we can broadly sum up the allegations by the actor against the defendants under these categories: –

• Using Vishnu Manchu’s name to host various pornographic videos [against unspecified “various parties”.];
• Leveraging elements of Vishnu Manchu’s personality (name, image, voice, likeness, etc.) by using some clips from his movies/ interviews, in their Youtube videos to attract viewership and consequently earning commercial gains via affiliate links to paid services in the description section of these videos [against specific defendants];
• Troll-type comments, including comparing him to animals, and suggesting his success is solely due to his father, saying he is a bad dancer, morphing his face onto other bodies, distorting his facial expressions, etc. [against specific defendants] (see below for some examples from the order) 

The plaintiff asserts that all the above actions have portrayed him in a negative light and have the potential to cause monetary harm to him.

Preliminary Issue: Multifarious Allegations? 

It is clear that these allegations are of very different natures. The presence of such diverse allegations in one suit raises a one opening question: Can multiple, unrelated causes of action be united in the same suit? While Order II Rule 3 of the Code of Civil Procedure allows the joinder of causes of action, it is to be read with Order I Rule 3 which requires strict adherence to two conditions: (1) the relief claimed must emerge from the same act or transaction, and (2) common questions of law or fact must be present. Both the conditions must be fulfilled, yet here, it appears neither are adequately addressed because different parties are alleged to have committed distinct actions independently.

Order II Rule 7 mandates that such objections must be raised before issues are settled. If such objection is not so taken, it will be deemed to have been waived. In this instance, the ex-parte nature of the order perhaps means that no such objection could be presented, effectively waiving it. This raises an essential question: in ex-parte (and John doe) matters, should the court proactively examine the appropriateness of joinder of causes of action?

Concerns about the ‘Troll in the Dungeon’ Left Unattended 

Since the fulcrum of this case seems to be personality rights of the actor, it must be kept in mind that such rights have been looked at in two distinct ways: first, the right to privacy, which safeguards an individual’s ability to be left alone, and second, the right to prevent commercial exploitation of one’s ‘publicity’. (Interested readers can take a look at this post by Pranjali Sahni and Souradeep Mukhopadhyay, at this paper by Samarth Krishnan Luthra and Vasundhara Bakhru, or this paper by Melville Nimmer to know more.) In the present case, allegations of the plaintiff regarding his name being used to host pornographic videos, seems to stem primarily from looking at personality rights from the privacy right perspective and warrant a separate discussion. Once that is done, there are sub-questions that arise, such as what does “to host” mean? Whether it means that his name or other attributes were featured in a pornographic movie? Or whether his name was present somewhere on a website where pornographic videos are uploaded? It may turn out to be the case that both situations warrant action, however, that discussion of what exactly is meant here is necessary for application in this nascent area of law, but does not seem to have happened in this case. Nonetheless, we’ll save that discussion for some other day. 

I this post we’ll focus on the other allegations, especially the ones concerning memes and trolling. Reading the Court’s broad order in context of only such uses we wonder – shouldn’t the Court discuss or explain how mere acts of ‘trolling’ or ‘depicting the plaintiff in a negative light’ constitute infringement of his personality rights? Or that the infringement is tied to the defendants’ use of the plaintiff’s name, voice, image, and other attributes for commercial or personal gain, without his consent? Unfortunately, the order is starkly silent on these pressing questions.

The Relief from the Court 

An interim injunction is a powerful remedy and as the SC has clearly laid out, should only be granted in exceptional circumstances in ex-parte cases. However, unfortunately here the Court seems to have readily accepted the plaintiff’s allegations without independently assessing whether they merit any protection in the first place or not. Reproducing the submissions of the plaintiff (which are a little… all-embracing and some of them can surely benefit from an explanation on why any intervention by the Court is warranted in their case) the Court merely states that the plaintiff has demonstrated a prima facie case, balance of convenience lies in his favour, and if an ex parte injunction is not granted, he will suffer from an irreparable loss. Interestingly, the Delhi High Court in the Krishna Kishore Singh case has reiterated that in instances where someone’s likeness has been used without any authorization then such a person should sue for damages and not seek an injunction. Despite this caution, the Court in this case has granted an injunction to the plaintiff. This not only raises concerns about a single judge going against the directive of a coordinate bench, but also makes one ponder whether a so-called celebrity can seek actions against indirect commercial gains by Youtubers allegedly using his likeness in some of their videos? The Court has completely overlooked these issues and also the impact that this order can have especially on the Youtube community where channels rely extensively on sponsorships for remuneration.

The Court restrained the defendants, including John Does, from unauthorizedly using his likeness on all formats and mediums like the Metaverse / Artificial Intelligence medium or any future formats or mediums.”

By mentioning “any future formats or mediums,” the Court has essentially granted a sweeping, broad injunction meant to cover not only current but also hypothetical future

technologies. The Court has not recorded any instructions to the registry to operationalise the above statement, in its order It (a) has directed DoT and MeitY to suspend the links listed in the order; (b) has directed the defendants to take down all the infringing content; (c) has given the plaintiff liberty to notify Youtube to block/suspend all the infringing URLs that have been/are uploaded by the defendants; (4) directed that in case YouTube finds that any content is not infringing, it can write to the plaintiff and has given the liberty to the plaintiff to move a relevant application before the Court to seek appropriate orders.

This blanket order, which resembles some attributes of a dynamic injunction, extends far beyond current concerns. The Order encapsulates any indirect or direct unauthorized uses without offering any independent reasoning by the Court for why such extensive protection is necessary or what the scope of this restrained unauthorized usage would be.  

Dynamic injunctions are typically granted to prevent continued infringements, however, they should be grounded in established reasoning (as discussed here). Here, however, the broad scope of the order, with no explanation, risks setting a dangerous precedent. [Sidenote: This isn’t the first instance where the Court has granted a broad ex-parte ad-interim injunction to safeguard personality rights. However, in contrast to the present case, the Bombay High Court in Arijit Singh v. Codible Ventures LLP explicitly stated in its order that “it may operate as a dynamic injunction.”]

[Sidenote: Another important issue that the order missed to address is the justification behind its prima facie finding on infringement of the plaintiff’s moral rights. The plaintiff alleged that by using clips from his interviews and films, the defendants have infringed his moral rights in these performances as well. In our opinion this was a great chance for the Court to further explore the interplay between moral rights and free speech in satire, and could have added on to the limited but extremely important commentary on this by the Delhi High Court in the Jackie Shroff case.] 

Implications on Free Speech 

Perhaps the biggest problem with this order is that by being bereft of any jurisprudential analysis of the issues involved here, it creates a space for any celebrity to censor or stifle free speech on the internet. Going through some of the allegations by the plaintiff one can see that they seem to stem from his frustration with being trolled online. However, it is pertinent to note that where the plaintiff reap benefits of personality rights for being a celebrity, on the flipside he is susceptible to attract comments and criticism (sometimes even unwarranted) because of the same celebrity status. Pointing to this dichotomy, the Delhi High Court in cases such as Khushwant Singh v. Maneka Gandhi (pdf) and Indu Jain v. Forbes (pdf) has asked these public figures to have broad shoulders, ignore vulgar criticism and restrain themselves from giving importance to the same by prosecuting the responsible parties. This directive was reiterated by the Delhi High Court in the context of personality rights as well, in the Sushant Singh Rajput case.

Similarly in the Anil Kapoor case, the Delhi High Court held that “There can be no doubt that free speech in respect of a well-known person is protected in the form of the right to information, news, satire, parody that is authentic, and also genuine criticism.” The Delhi High Court in the Jackie Shroff case also emphasized on protecting free speech and creative expression when it decided about the video with edited elements like gold chains, sunglasses with the use of the caption “Thug Life”.

Ignoring these precedents and their implications on free speech, the Court seemingly has pushed satirists, commentators and virtually anyone who may have anything negative to say about a celebrity into dark waters by making them vulnerable to interim injunctions working as virtual gag orders. And by not giving any substantive reasons or justifications, the Court has allowed the scope of these injunctions to be wide enough to capture speech or expression which would otherwise be permissible

This was recently seen in the Rajat Sharma case as well where the Delhi High Court had passed an ex parte interim injunction against a satirist for his commentary against the journalist on Twitter (interested readers can take a look at Aarav’s post on this case here). By entertaining complaints against allegations of comparing a celebrity to an animal or calling them a bad dancer without even explaining how some of these allegations infringe the plaintiff’s personality rights the Court simply justifies that it’s not okay for ordinary citizens to poke fun at celebrities. Thus, virtually putting them at some sort of a pedestal and offering a remedy to them against being annoyed. It is important to note here that a similar remedy was struck down by the Supreme Court in the Shreya Singhal Case for being beyond the ambit of reasonable restrictions against freedom of speech and expression u/Article 19 (1). Before this decision, Section 66A of the IT Act made it a criminal offence to publish a post which may, in essence, cause annoyance. Highlighting the vagueness of the provision and the ensuing chilling effect the apex court struck down this draconian provision. Though these injunction orders are civil remedies, the implication that they may have on free speech and expression could very well be the same to avoid which the Supreme Court passed the Shreya Singhal judgement.

Thanks to Swaraj for his inputs on the Post.