"Using private image without consent entirely illegal:" Bombay High Court orders Amazon Prime to take down Telugu movie until image is removed

The Bombay High Court has directed Amazon Prime Video to take down Telugu film titled "V" produced by Venkateshwara Creations Pvt. Ltd. from its platform within 24 hours in a civil defamation suit filed by model and Bollywood actor Sakshi Malik (plaintiff) claiming the film illegally used her still photograph (Sakshi Malik v. Venkateshwara Creations Pvt. Ltd)..A single-judge Bench of Justice GS Patel found that there was prima face case in favour of Malik noting that the image has not only been used without consent but has also been used in a derogatory manner. ."The fact that the image has been illicitly used is bad enough. It only makes matters worse when used in a plainly derogatory and demeaning vein", Justice Patel stated in the order..The Court, therefore, ordered that the film be taken down in all versions, irrespective of language and sub-titles until all the images of the plaintiff are completely deleted from the movie. .The producers have to remove the photographs from the movie before Amazon Prime can release the movie again, the Court said. The same can be done only after the Court pronounces an order to that effect.."It is not acceptable for them (Venkateshwara Creations) to merely pixelate or blur the images. The entire sequence which has the image of the plaintiff is to be removed immediately," the Court added. .The controversy stemmed from the fact that Malik's image was used in one of the scenes in the film where there is a reference to a commercial sex worker. Malik claimed that the image, which was shown in the film, was apparently lifted from her Instagram account..Malik approached the High Court through her advocates Alankar Kirpekar and Saveena T Bedi (Lawhive Associates) seeking damages for defamation and permanent injunction..Kirpekar raised three grounds for granting relief.There was unauthorised invasion of privacyThere was unauthorised use of private materialThere was complaint regarding the nature of use in the sense that her image was used to depict as an escort or commercial sex worker.He submitted that the use of her image in the manner in which it was done amounted to defamation per se. .The Court agreed with the argument. "Indeed I do not believe there is any other way of looking at it," Justice Patel said in his order. .Venkateswara Creations claimed that they had entered into a contract with a commercial agency for obtaining a suitable image for the sequence in the film and they were assured by the agency that they could legitimately use the image in question..However, Justice Patel was unconvinced by that submission. He opined that "any right thinking motion picture producer would have insisted on seeing an approval or consent by the model or person who is featured or to be featured."."It would be standard procedure almost anywhere, and this would be true whether the issue is one of copyright in the photograph or of use with permission of an image of the model in question for a particular sequence. It seems to me self-evident that it is not possible to use the image of any person for a commercial purpose without express written consent. If images are to be used without such express consent, they must be covered by some sort of legally enforceable and tenable licensing regime, whether with or without royalty," the Court said..Simply using another’s image, and most especially a private image, without consent is prima facie impermissible and entirely illegal, he said. He added that in a given case, it may also be defamatory depending on the type of use. .The matter will, therefore, need closer examination at a later stage, the Court said proceeding to grant interim relief. .It also allowed the producers to replace the deleted segments but "without using any of the plaintiff's (Malik) images in any shape, fashion or form without her express written consent..The Court further ordered the producers not to release the "re-edited version of the film without a specific order of this Court." It also made it clear that it will grant permission for release of the film only after the altered portion is shown to Malik and her lawyer. .[Read Order]