Guarding the Glitter: Navigating Defamation and Reputation Management for Celebrities

Introduction

“Who steals my purse steals trash…but he that filches from me my good name robs me of that which not enriches him and makes me poor indeed.”

– Shakespeare, in ‘Othello’

In a world where fame and fortune intertwine with scrutiny and speculation, the delicate dance between reputation and defamation takes center stage. In the realm of celebrities, while the spotlight illuminates their triumphs, it also casts shadows threatening their hard-earned reputation. As their lives unfold in the public eye, their reputation shapes both their personal affairs and professional endeavors. From red-carpet whispers to scandalous headlines, this essay delves into celebrity defamation and reputation management, unearthing the prospects and lacunae beneath the glitz and glamour.

The Power of Perception: Paramountcy of Reputation

Fame is a two-sided coin, and a singular defamatory event can unleash a disastrous ripple effect, causing public backlash, waning popularity, diminished earning potential, and legal repercussions. Hence, it becomes paramount for celebrities to remain acutely mindful of safeguarding their reputation.

Defamation Unveiled: Understanding the Elements and Consequences

The offense of defamation safeguards an individual’s dignity, a fundamental right protected by Article 21 of the Indian Constitution. Defamation requires certain essentials:

• a published statement about the plaintiff,
• defamatory in the public’s eye,
• falsely disparaging the plaintiff’s character.

In India, defamation is both a tort, allowing for civil remedies, and a criminal offense under Section 499 of the Indian Penal Code (I.P.C.), 1860, with corresponding penalties under Section 500 I.P.C. Sections 199, 203, 204, 205, 207, 357, 357A, 358, and 359 of the Code of Criminal Procedure (Cr.P.C.), 1973 further govern celebrity defamation cases. Pre-2015, Section 66A of the Information Technology Act, 2000, addressed cyber defamation but was struck down for ambiguity and misuse.

Learning from Life: Recollecting some High-Profile Celebrity Defamation Cases

Last year, the Depp-Heard defamation trial captivated global attention as the courtroom spectacle unfolded. Depp sought a whopping $50 million in damages from Heard for an article where Heard called herself “a public figure representing domestic abuse.” Despite losing a similar lawsuit in the U.K., Depp won $10 million in the U.S. trial, while Heard received $2 million.

It is one of the many celebrity reputation battles embroiled in fame and notoriety, like the several libel lawsuits against celeb magazines and tabloids by J.K. Rowling, Meghan Markle, Tom Cruise etc. There are no fewer examples in India involving well-known figures like Nora Fatehi, Rahul Gandhi, Javed Akhtar etc.

Uphill Battles: Unique Challenges in Celebrity Defamation

Unmasking the Fakes: Addressing Deepfakes and Manipulated Content

Traditional defamation principles aren’t equipped to tackle manipulated, realistic AI-generated media by deepfakes that fabricate celebrity activities. Attributing liability by proving intentional harm or knowledge of falsehood becomes challenging when they remain anonymous or operate extraterritorially. The inadequacy of current defamation laws in addressing deepfakes underscores the crucial need for improved laws as technology evolves.

Cross-Border Cyber Defamation: Jurisdictional Challenges

The need to select the appropriate legal forum arises when overlapping jurisdictions are involved in cross-border cyber defamation cases, forming an essential aspect of one’s right to access the court system, distinct from forum shopping characterized by a weak connection between the dispute and the chosen jurisdiction. Opting for a specific forum can provide significant advantages to the claimant: the forum’s procedural rules may be more plaintiff-friendly, its conflict-of-laws rules may favor the claimant’s case regarding substantive law, and established practices, such as awarding substantial damages, can work in the claimant’s favor. These factors are interconnected and collectively influence the forum choice, sanctioning rampant ‘forum shopping’ for favorable jurisdictions. Traditional jurisdictional regimes are labeled inadequate in cyber defamation, and the existing ‘choice-of-law’ doctrines are criticized for redundancy in cyber defamation cases to restrict forum shopping. However, these criticisms lack merit, as they fail to recognize that cyberspace is not exceptional in jurisdictional considerations. The effect of defamation can be as tangibly located through IP addresses as it can be for traditional print media.

Reputation Conundrum: Exploring its Multifaceted Nature

The notion of ‘reputation’ is thorny since traditional defamation law emphasizes its protection without delving into its true nature. However, recent scholarship has revealed reputation as a multifaceted concept. Under Robert Post’s framework, reputation is a ‘social construct’ connected with dignity, an ‘economic construct’ intertwined with property, and a ‘media construct’ associated with celebrity. Since not every facet of reputation is relevant in all proceedings, it perpetuates an ongoing dilemma.

Valuing Reputation: Difficulty in Damages Assessment

Damages serve the intertwined purposes of vindicating reputation, providing solace for distress, and compensating for harm. Determining damages for defamation is complex due to its subjective nature and reliance on volatile and intangible factors applicable like legal precedents, emotional distress endured, the ‘grapevine effect,’ etc.

Legal Lapses: Exposing the Lacunae in the Law

Establishing Celebrity Rights: The Gaping Void in Indian Law

Celebrity rights are distinctive, akin to property for exclusive enjoyment. These include moral/personality rights, publicity/ merchandising rights, and the right to be left alone/privacy rights. However, these rights are susceptible to unauthorized trespasses requiring legal intervention and judicial oversight. Unfortunately, the absence of a dedicated regulatory mechanism in India, unlike in countries like U.S., U.K., and Canada, to address these issues often poses enforcement challenges.

The Digital Quandary: ISPs Evading Liability in Online Content

Chapter XII of the Information Technology Act, 2000 addresses the liability of Internet Service Providers (ISPs) and exempts them from such liability under Section 79, provided they can demonstrate innocent ignorance to infringements, the exercise of ‘due diligence,’ and their presence as a mere conduit. Therefore, unlike in print media, plaintiffs have limited recourse in suing or holding publishers liable. Though only a qualified ‘safe harbor’ is given to ISPs, the textual ambiguity in legislation supplemented by scarce legal precedents exacerbates the reluctance of ISPs to accept any liability for user-generated content. While insights from American and European laws and precedents may offer guidance, cultural differences could hinder the acceptance of foreign court decisions in India.

Opinion Defense: Examining the Boundaries for Fair Comment

Section 499 IPC provides exceptions for truth, public good, fair comment, etc., to safeguard genuine opinions from being unjustly labeled as defamation. Online, celebrities face risks of defamation from trolls who, exploiting the anonymity of the internet, offer unsolicited and often hurtful ‘opinions.’ Current laws protect such opinions as long as they do not involve false facts. However, even when non-confirmable attributes are commented upon, they are deemed ‘mere opinions’ rather than falsehoods, thus falling short of securing victims’ rights.

Nature of Defamation Reevaluated: Reassessing Criminalization and Addressing SLAPPs

Sections 499 and 500 IPC are increasingly perceived as antiquated and contradictory to free speech and are questioned for effectiveness. Nevertheless, even civil remedy is a pothole-filled road. Strategic lawsuits against public participation (SLAPPs) exploit the cumbersome and expensive nature of lawsuits, threatening and silencing critics with prolonged legal battles and exorbitant damages.

Towards a New Era: Advocating for Reforms

Recognizing Celebrity Rights: Defining ‘Celebrities’ for Effective Legal Protection

The legislature must formally acknowledge celebrity rights to keep up with the digital age’s rapid commercialization of personal identity and balance public interest and individual celebrity interest to curate a legal regime tailored to India’s context. Defining ‘celebrity’ becomes imperative to accomplish this, which remains undefined within Indian legislation. The Delhi High Court described a celebrity as “a famous or a well-known person and is merely a person to whom many people talk about or know about.” However, this definition needs to adapt to the evolving dynamics of social media and the rise of influencers and bloggers. Additionally, a distinction should be drawn between ‘general’ and ‘limited’ public figures. To substantiate, lifestyle bloggers monetizing personal lives should not automatically become public figures solely through routine personal information sharing.

Seeking Clarity: Clarifying ISP Liability in India

The abysmal lack of clear articulation on ISP liability needs to be combatted through stronger Indian legal precedents and proactive interpretation of the text. ‘Primary’ and ‘secondary’ publishers must be distinguished for varied liability under the law, and ‘due diligence’ under Section 499 requires clarification regarding its precise meaning.

Balancing Act: Free Speech v/s Reputation Rights

Opinion defense makes establishing claims in cyber defamation challenging, as traditional laws primarily target professional publishers and journalists subject to higher publication and societal standards, whereas the internet allows for anonymous publication without ethical obligations. Defamatory statements posted online get categorized as ‘opinion,’ making it challenging to hold cyberbullies accountable. Strengthening legal precedents is necessary to discern between genuine opinions and defamatory remarks.

Addressing Misuse: Ensuring Speech Rights and Curbing Harassment

Celebrities may be the villains in their own case, seeking to harass and suppress. The access to penal remedies amplifies this harassment. This necessitates a clear delineation of Article 19 rights and judicial reconsideration of the criminalization of defamation. Furthermore, courts must only entertain cases with actual harm and substantial evidence and otherwise impose costs on frivolous lawsuits to reduce the occurrence of SLAPPs.

Conclusion

To address the digital-age challenges and reconcile celebrity rights and free speech, legislative reforms with comprehensive interpretations are vital. India can align its legal framework to preserve people’s rights and ensure a fair and consistent application of the law by decriminalizing defamation, discouraging misuse of defamation claims, fostering legitimate criticism, and ensuring reputation protection, ultimately creating a more robust legal environment for celebrities in both digital and physical domains.

(This article has been authored by Tejaswini Kaushal, a 3 rd year law student at Dr. Ram Manohar
Lohiya National Law University, Lucknow)

CITE AS: Tejaswini Kaushal, ”Guarding the Glitter: Navigating Defamation and Reputation Management for Celebrities” (The Contemporary Law Forum, 19 October 2023) <
tclf.in/2023/10/21/guarding-the-glitter-navigating-defamation-and-reputation-management-for-celebrities/> date of access