[Use of Sakshi Malik's photo in V] Casual and Cavalier Approach With No Thought To the Very Real Consequences On the Person, Says Bombay HC

The Bombay High Court on Thursday, while lifting the prohibition order on the release of Telugu Movie 'V' on OTT platform, Amazon Prime, opined that the Vemkateshwara Creation's approach while using actor Sakshi Malik's photograph in the film was 'casual and cavalier in the extreme'.

The development came after the High Court on Tuesday restrained Venkateshwara Creations Pvt. Ltd. from releasing the Telugu Movie 'V' until deletion of a scene wherein a portfolio picture of Mumbai-based actor, Sakshi Malik was used without her permission.

Justice G.S. Patel thus observed "There is the matter of copyright violation and infringement, itself sufficient foundation for a claim in damages. There is the question of defamation. There is also a possible tortious cause of action in negligence for there is surely a duty of care owed to those who images or property are to be used for commercial gain."

While noting that the defendants have deleted the offending portion from the movie featuring a private image of the actor, the Court lifted the prohibition on release after confirming it with the actor herself and her counsel.

"The prohibition on release of the film can thus now be lifted. Amazon Prime is permitted to re-release the film, but only in the version after my order of 2nd March 2021, that is to say with the offending portion removed or deleted." The bench ordered.

On Thursday, Malik's lawyer Advocate Alankar Kirpekar submitted in Court that approaching the Court was Malik's last resort and that prior to moving the High Court she had corresponded with the defendants about the use of her photograph.

The Court noted that the correspondence indicated that the defendants had contracted with one Syed Mohiuddin Mufeed of an event management company to procure the photograph of Malik.

Expressing that the correspondence if true offered little expiation to the defendants, the Court chided the casual and cavalier approach.

During the course of virtual hearing, Advocate Kirpekar submitted before the Court that Malik was perhaps the only "latest and almost certainly not the last of a long list of women" who have been constantly objectified and taken for granted.

The Court recorded the Advocate as stating:

"Their whose reputation, standing, personal dignity and privacy have all been considered in the most misogynistic and patriarchal manner as counting for precisely nothing."

Continuing, the Order records the Advocate as adding that the paternalistic manner of considering women needed to stop and there is no way to do this but to send a signal to the wrongdoers that they cannot escape the consequences of so egregious an action with a mere slap on the wrist, or the deletion of this or that offending portion.

Agreeing with the submission, the Court noted that there was a "corresponding liability" on the film producers. The Court also proceeded to observe that the matter at hand was not just about the copyright violation but also about defamation giving rise to a possible tortious cause of action.

The Court underscored that neither the plaint nor Advocate Kirpekar cast aspersions on commercial sex workers as a class, but were concerned with how they were perceived and portrayed in the film.

On this score, the Court explained

"There is an accompanying conversation between two actors that makes it plain that the intention was to denigrate the person whose image was shown...The allegation made is about the 1st and 2nd Defendants' portrayal and perception of commercial sex workers and how demeaning and degrading that perception is. It is the portrayal on screen of this perception that gives rise to the other cause of action in defamation."

Calling for a balance between artistic freedom and the personal liberty and an individual's right to privacy and dignity, the Court remarked,

"I have no interest whatsoever in knowing about the greatness or otherwise of their film. I do not intend to embark on a needlessly prolonged hearing about the outer limits of the freedom of artistic expression, a freedom that everybody readily accepts. But whatever be the other Constitutional limitations, it has been settled for centuries that any artistic expression is always subject to the rights of the individual, including the right to dignity, the right to privacy and the right not to be defamed."

The Bench emphasized that ordinary laws would continue to apply, even though the the case pertained to digital media.

In view of the said observations, the Court asked the defendant producers to file an affidavit in the matter for ascertaining the payment of cost. However, the Court clarified that it does not propose to hold defendant Amazon Prime responsible for the cost and is not inclined to make any further order against it.

The matter will now be heard on 25th March 2021.

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