The Vanishing Act: Celebrities’ Right to be Forgotten

I. Introduction

The term celebrity is not legally defined however the term ‘performer’ is defined under Section 2(qq) of the Copyright Act 1957 as “an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture, or any other person making a visual or acoustic live presentation.”² This legal definition, though centered on the broader concept of performers, sets the stage for understanding the legal landscape surrounding public figures. In the realm of media law private and public rights exist together and form up the ambit of the law. When used together, these rights provide a protective legal protection for public figures. Said public figures, whether classified as celebrities, athletes, influencers, or otherwise, frequently face legal challenges spanning multiple jurisdictions as they seek to establish legal safeguards for their personal lives, businesses, brands, and other sources of income. One such safeguard is the ‘Right to be Forgotten’.

In Google Spain vs. AEPD and Mario Costeja González (2014)³, the European Court of Justice established the Right to be Forgotten (hereinafter referred to as “RTBF”) by stating that persons in the European Union have the right, under certain situations, to seek the removal of their personal information from search results and public records databases.⁴ The RTBF forms a part of the larger ambit of privacy rights available to the celebrities.

In August 2023, India passed the Digital Personal Data Protection Act (DPDPA), solidifying the RTBF in Indian legal landscape. This research paper aims to analayse the privacy rights available to celebrities in India and in doing so the paper first analyses the DPDPA to come to an understanding of how the RTBF operates for celebrities in India. Further, the paper looks at the ways Artificial Intelligence (AI) hampers the privacy of celebrities and what legal safeguards Indian legislature has put into force to prevent it. Finally, the paper looks at the General Data Protection Regulation of European Union and compares it to the DPDPA to understand the areas where the later can improve.

II. Indian jurisprudence on ‘right to be forgotten’

In India, The Digital Personal Data Protection Act, 2023 states that a person to whom the data relates to (termed as ‘Data Principal’ under the act)⁵ has a right to correction, completion, updating and erasure of personal data for the processing of which they had previously given consent.⁶ The Act applies to all persons and entities that:⁷

(i) Process digital personal data within India, whether it is collected in digital form or was in non-digital form earlier and later converted into digital form.

(ii) Process digital data outside of India, if that person or entity provides goods or services to individuals in India.

However, the act does not apply when the personal data is intentionally made publicly available by the Data Principal.⁸ The RTBF solves multi-party privacy conflicts in a unique way, distinguishing it from existing privacy strategies like social network access control rules and anonymization services. The RTBF allows search engines to restrict access to honest information about individuals that has been properly published. The RTBF falls under the umbrella of the right to privacy. This right to privacy applies to personal information, whether digital or physical, that, if disclosed, would have a direct impact on an individual’s dignity. In Justice K.S. Puttuswamy (Retd.) v. Union of India (2017)⁹ the Supreme Court held that Right to Privacy is a standalone fundamental right serving as one aspect of Article 21 within the Constitution of India. Article 21 encompasses the Right to Life and Personal Liberty. The court also held that every individual has the right to control the photos or information disseminated about them for commercial advantage. Any part of their personal life should not be depicted in public without their prior and complete agreement.¹⁰ Further in Shri Vasunathan v. The Registrar General (2017)¹¹, the Karnataka High Court recognised the right to be forgotten. The court further observed that this was especially necessary when dealing with cases involving women in general and highly sensitive cases involving rape or affecting the modesty of the person concerned. In Jorawer Singh Mundy v. Union of India (2021)¹², the Supreme Court stated that the right to privacy acknowledges ‘the right to be left alone’ and the ‘right to be forgotten’. RTBF is not a complete erasure of the data from the internet, the famous phrase, ‘Nothing is ever truly deleted off the internet” holds true here, RTBF just makes the outdated or incorrect information about someone a little harder to find.

III. Celebrities’ right to privacy

Every citizen has equal access to the right to privacy in principle.¹³ While the general public’s rights are well protected, celebrities’ privacy rights on the other hand, become narrower. The right to privacy of celebrities basically encompasses two basic rights i.e. right to publicity, under which they have the right to control and protect their image from being exploited without taking proper consent; and RTBF. The media and the general public frequently may infringe on these two rights, simply because celebrities agreed to such publicity at some point in their life. The difficulty occurs when the audience considers the celebrities’ lives to be of “public interest” and information about them is used frequently without their authorization.¹⁴ So intrinsically rudimentary is the right of privacy to celebrities that scholars like Samuel Warren and Louis Brandeis state that celebrity rights as a concept have evolved from right to privacy itself.¹⁵ With celebrities the right to privacy plays a larger role because just for the reason that someone is famous and has a large fan following doesn’t mean it’s reasonable to argue that they are not entitled to have their privacy. Celebrities acknowledge and agree to a certain level of public exposure, but there should be a boundary when it comes to events that do not involve third-party interference and cannot be categorized as matters of “public interest.”¹⁶

When it comes to celebrities their RTBF seems to be viewed from a much higher standard than a normal person. People in the public spotlight, such as celebrities, are thought to be of greater interest to the general public, and their behaviors are scrutinized more closely. The DPDP Act, does not protect the people who willingly share the information about themselves and in the case of celebrities such is often assumed to the case. Further, celebrities have often been the targets of harassment and stalking and now with the birth of AI it is easier than ever to morph pictures of celebrities and cause harm. In the digital era, information survives endlessly, undermining traditional notions of time. Celebrities may be dogged by previous issues or personal challenges, impeding their personal and professional lives. The RTBF becomes important for reducing the possibly negative effects of digital permanence on a celebrity’s life. Ashutosh Kaushik, an Indian actor hit the news because he was caught drunk driving when he was younger. The event received a lot of attention because he was a celebrity. Various news stories, photographs, and videos portraying the event are still widely available on the internet, making them accessible to anybody searching for the actor due to which he asked the Delhi High Court to grant him his RTBF.¹⁷ People shun him, she lost out on multiple movie roles and was rejected from marriage several times due to his internet presence.

IV. The right of celebrities to be forgotten in the age of ai

Artificial Intelligence (AI) drastically changes the way the world understands the concept of privacy because what we know of the principle comes from the understanding of how the living being i.e. human beings process the said information and how they remember and forget that information.¹⁸ As mentioned earlier, the RTBF entails the removal of previously public data, however in case of AI that is not necessarily easy. AI does not “forget” data in the same way humans do. Each data record added to the database of the AI may not only exist at a single point in the file system but might be stored in various locations within internal database mechanisms, as well as across different replicated databases, log files, and backups. In most relevant databases, when a record is destroyed, it is not replaced with data or filled with zeros. Rather, it is simply listed as deleted and removed from the search index.¹⁹ This is related to performance difficulties; removing and overwriting space would involve substantial more work and have a negative impact on overall performance. This would imply that a remove request would require more resources than several data insertions. Now considering that celebrities have more information out there than a normal human it becomes increasingly more difficult for them to exercise their RTBF. Around the end of January 2024, sexually provocative AI generated pictures of Singer Taylor Swift were circulating on the internet. These fake, AI-generated images were done without Taylor’s consent and/or knowledge.²⁰ Further, AI is also being used to bring the deceased back to life in diverse digital afterlife representations.²¹ There has been an increase in the usage of deepfake technology to imitate unsuspecting celebrities in advertising. For example, Bruce Willis was shown defusing a bomb in a telecoms company's advertising video.²² Reanimated Tom Cruise and Leonardo DiCaprio starred in a commercial film for a technological business without them giving any such permission.²³ Deceased celebrities, in particular, may become targets for illegal commercial reanimations. The appeal of utilizing deceased celebrities as endorsers arises from their low cost, and firms may assume there is less risk of legal action for misleadingly showcasing a deceased celebrity. After all, people who are no longer living are less likely to sue for false representation since they cannot pay an attorney and have limited success alleging invasion of privacy under current rules. To address the growing concerns about AI, Ministry of Electronics and Information Technology (MeitY) in December 2023 issued an advisory to all intermediaries, to make sure that they abide by the IT rules, 2021 especially with rule 3(1)(b) which talks about due diligence that has to be practiced by the intermediary.²⁴ Currently there exists no law in India to deal with the issue of AI deepfakes and in the absence of it, celebrities are open to all kind of invasion of privacy in India.²⁵

V. Dpdpa and gdpr and the right to be forgotten for celebrities

European Union was the first state to legally bring the term RTBF into existence. However, in 2019, the European Union court limited this verdict to the European Union territory, stating that Google is not required to implement the RTBF outside of Europe.²⁶ The European Parliament along with Council of the European Union adopted the General Data Protection Regulation (GDPR)²⁷ on 14 April 2016. The GDPR aims to ensure “a consistent high level of data protection and a homogenous application within all Member States, hence granting essential harmonization within the EU”.²⁸ GDPR is a standard setter when it comes to data protection laws around the world. Even DPDPA is heavily influenced by the European Regulation as it operates on the same principles that were set out in GDPR. Still there exists some areas where DPDPA can learn from GDPR which will provide better protection to people and general and celebrities in specific. One such area is the scope of the act. As already mentioned, The DPDPA oversees the processing of digital personal data and although the DPDPA²⁹ defines personal data in the same way as the GDPR³⁰, it expressly excludes data that has been publicly published by the data principal or another entity required by law to release such information. Further the DPDPA states that organizations (data fiduciaries) may only handle personal data with the consent of individuals (data principals) or for defined legitimate purposes.³¹ The DPDPA’s consent requirement is similar to that of the GDPR, requiring that consent be freely provided, explicit, informed, unconditional, and unambiguous, with affirmative action. However unlike the GDPR, it prohibits processing based on permissible grounds such as contractual need or legitimate interests which makes it difficult for celebrities to enforce their RTBF. The ‘legitimate use’ as mentioned, such as processing data voluntarily shared for a specified purpose or handling employment-related data, could be cited by data fiduciaries as lawful grounds to retain and process celebrity data. If celebrities have already consented to the use of their data for certain reasons, data fiduciaries may claim that erasure requests are incompatible with the legitimate uses authorized by law. Furthermore, the lack of statutory basis, such as contractual necessity or legitimate interests limits celebrities’ possibilities to argue for erasure on alternative grounds.

However, in some areas the DPDPA is more vigilant and provides for more accountability than GDPR the most important of which relates to breach of data. In the event of a personal data breach, a data fiduciary is required to notify the data principal as prescribed under DPDPA.³² In GDPR however, notification should be provided to them without undue delay only if a breach is anticipated to result in a high danger to the affected people’ rights and freedoms.³³ Further, DPDPA mandates that data fiduciaries must allow the data principals to choose a successor to exercise rights over their personal data in case of death or incapacity.³⁴ This provision safeguards against the unauthorized utilization of a deceased celebrity’s information, encompassing images and deepfakes, by data fiduciaries, ensuring protection in the absence of explicit consent. No such provision is found under GDPR. There is also no specific right to grievance redressal under the GDPR however under DPDPA, Data fiduciaries Data fiduciaries are obligated to provide timely and effective mechanisms for addressing grievances raised by data principals.³⁵

VI. Conclusion

The analysis of RTBF of celebrities in the Indian jurisprudential context highlighted the issue of lack of protection of celebrities’ right to privacy. The Digital Personal Data Protection Act of 2023 is an important milestone that affirms the rights of people to rectify, complete, update, and erase personal data. However, the ambit of this legislation is not absolute, and it exempts circumstances in which the Data Principal knowingly makes personal data publicly available which is a big issue as when it comes to celebrities the lines of consent are often blurred. The RTBF’s uniqueness rests in its approach to multi-party privacy issues, which provides a sophisticated answer for the digital era. It enables search engines to limit access to truthful content that has been properly published, balancing privacy and the public’s right to knowledge. However, it is important to highlight that the RTBF does not imply full deletion from the internet, recognizing the enduring nature of digital data. Celebrities’ right to privacy includes the ability to manage their image (right to publicity) as well as their RTBF. Media and public scrutiny frequently violate these rights, presuming that celebrities have freely placed themselves in the public domain. The introduction of AI further complicates the situation. AI, with its unique data processing algorithms, calls into question the traditional concept of data destruction. Unlike humans, AI does not remove data, but rather stamps it as destroyed, complicating the RTBF, particularly for celebrities with large digital footprints. While navigating the intricacies of data protection laws in India, it is quite evident that DPDPA while offering a good robust protection to people that fall within its scope, ultimately fails to provide the same level of protection to celebrities. However, the act is a step in the right direction and in some ways even surpasses GDPR, the regulation that is revered to be the most comprehensive legislation regarding data protection in the world.

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VII. Bibliography

(A) Journal Articles

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5. Patrick Coffee, “Deepfakes of Celebrities Have Begun Appearing in Ads, With or Without Their Permission”, Wall St. J. (2022).

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7. Robert Kirk Walker, “The Right to be Forgotten”, 64 Hastings L.J. 257 (2012).

8. Samuel D Warren and Louis D Brandeis, “Right to Privacy”, 4 Harv. L. Rev. 193 (1890).

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(B) Websites

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(C) Newspaper articles

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