Frequently tucked away in the fine print or presented fleetingly at the beginning or end of a production, disclaimers serve as a means to protect creators from potential legal repercussions and navigate the intricate web of personality rights. The use of disclaimers in various forms of creative content is not a novel phenomenon; it has, in fact, been an enduring practice for decades. From feature films and documentaries to books and artwork, disclaimers have been employed to delineate the boundaries between fact and fiction, and to address the increasingly litigious environment in which creators operate. However, the pressing question of our time remains: just how effective are disclaimers in mitigating exposure to personality rights claims in India?
Notably, extant laws in India that govern the exhibition of cinematograph films and other content do not mandatorily require the insertion of disclaimers. Thus, disclaimers are not legally enforceable statements, i.e., their correctness/adequacy cannot be challenged under extant laws in India. However, certain authorities in India do have the power to direct publishers to include appropriate disclaimers, as a measure to address any viewer grievances. For instance, under Rule 12(5)(c) of the Information Technology (Digital Media and Ethics Code) Rules, 2021 ("Rules"), the Self-Regulatory Bodies registered under the Rules have the power to guide and advise a publisher to incorporate disclaimers or warning cards while they are dealing with grievances/complaints, in order to allay any concerns raised therein. The Central Board of Film Certification (CBFC) has also directed film producers to incorporate disclaimers on certain occasions. While certifying the film 'Padmaavat', the CBFC directed the producers of the film to incorporate disclaimers to the effect that the contents of the film are not intended to, inter alia, disrespect any religious beliefs or sentiments.1
However, insofar as personality rights claims are concerned, Indian Courts have advised film makers and content creators to include appropriate disclaimers to prevent potential prejudice to third parties. In a suit filed by the former Chief Minister of Tamil Nadu late J. Jayalalitha2, alleging violation of personality rights, the Madras High Court observed that the inclusion of a disclaimer in the movie 'Queen', clarifying that the movie is a fictional rendition of true events, would ensure that no prejudice is caused to the Plaintiff therein.
More recently, in Krishna Kishore Singh vs. Sarla A Saraogi3, the Delhi High Court had the opportunity to consider the significance of a disclaimer used in the movie 'Nyay: The Justice'. The Plaintiff, who is the father of the late Bollywood actor Sushant Singh Rajput, filed the suit alleging that the Defendants were unauthorisedly exploiting his late son's personality and the events that surrounded his life, and consequent death, for commercial gain. The Defendants argued that the movie included a prominent disclaimer at the very introduction disclaiming any connection or relationship between the contents of the movie and real-life, or between any character in the movie to any person living or dead. Accordingly, the Defendants contended that the disclaimer would serve as a sufficient defense against a claim alleging a violation of personality rights.
However, the Court was of the view that the disclaimer, when seen in the backdrop of the movie itself, was plainly untrue. Upon thoroughly reviewing the movie in question, the Court found that the movie was, by and large, a re-telling of Sushant Singh Rajput's life. Such being the case, the Court was of the view that a cosmetic disclaimer disclaiming any connection between the contents of the movie and any persons living or dead was insufficient.
The Court held that the question whether there exists any relationship between characters and events depicted in a film and real-life persons has to be decided on a comparison of the film with knowledge of real-life events, and cannot be determined by the existence of a misleading disclaimer. While the Court ultimately refused to rule in favour of the Plaintiff for other reasons, the judgment nonetheless clarifies that the insertion of a superficial disclaimer in a work that otherwise resembles a person living or dead cannot be deemed sufficient in the eyes of the law.
While this is potentially the first Indian judgment to deal with the (in)adequacy of a disclaimer in a film, the Court's reasoning in reaching this decision appears to be correct. Ultimately, the object of a disclaimer is to ensure that the contents of a given work do not unfairly prejudice a third-party. Condoning the inclusion of superficial and cosmetic disclaimers in content that otherwise resemble or pertain to third-parties would amount to permitting content creators and film makers to do indirectly what they cannot do directly. In this regard, the Court observed as follows:
18.10. It goes without saying that the question of whether there exists, or does not exist, any relationship between characters and events depicted in the film and real-life persons has to be decided by a comparison of the film with knowledge of real-life events, and not by reference to any misleading disclaimer which may be inserted in the film. Else, law would be lending its imprimatur to fraud, and no less.4
The Court's observations with respect to the value and worth of a disclaimer serve as important guiding principles in an era that is witnessing an aggressive enforcement of personality rights. This judgment could, therefore, mark a shift in the manner that creators fictionalize their works and use disclaimers.
Footnotes
1. Viacom 18 Media Private Limited & Ors. vs. Union of India & Ors. Writ Petition (Civil) No. 36 of 2018, Order dated 26th March 2018.
2. Deepa Jaykumar vs. A.L. Vijay & Ors. 2021 SCC OnLine Mad 2642
3. Krishna Kishore Singh vs. Sarla A Saraogi, 2023: DHC: 4631 ("Krishna Kishore Singh")
4. Krishna Kishore Singh, paragraph 18.10.
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