Manisha Koirala v. Shashilal Nair and Ors.;
2003 (1) AllMR 426
Four scenes of four minutes in a film, titled ‘Ek Chhoti Si Love Story’ were the subject matter of dispute. The story of the film was about an adolescent boy who was obsessed with a girl who was 26 years old and shared an intimate relationship with a man.
Plaintiff, an actress, played a central character in the film. The Defendant No.1 was the Director of the film. The film had been cleared by the Censor Board with ‘A’ certificate. Plaintiff had acted throughout the movie except for the four scenes, which were enacted by a double and to which the Plaintiff has objected as being vulgar and obscene.
A letter dated 20th April, 2002 addressed by Defendant No.1 to the Plaintiff read as follows:
“In regards to the film, ‘Ek Chhoti Si Love Story’, this is to inform you, that portions of the film, has been shot by a duplicate, which involves a certain level of physical exposure.
If you have my (any) objection to any particular section, we stand to replace it with alternate shots.”
The Plaintiff filed this suit against the Defendant for breach of contract, invasion to right of privacy, tort of defamation and malicious falsehood.
Arguments on behalf of the Plaintiff:
• The cause of action arose when the Defendant No.1 has used the four scenes, which are acted by a double and are the subject matter of this dispute, despite the objections raised by the Plaintiff and the Defendant No. 1 has thus committed a breach of the contract between the Plaintiff and Defendant No.1.
• It is further contended that the public at large would associate the Plaintiff with those scenes despite having been performed by a double. This will injure her reputation and consequently tort of defamation.
• It was agreed that if the Plaintiff had objection to any shot of the film in which the double or the fill in artist has acted and which involve a certain level of physical exposure, the same would be replaced with alternate shots.
• Also, the entire story board in the present form was not shown to the Plaintiff. The one shown was substantially different and the one filed before the courts and sought to be relied upon appears to be a draft version of the story board.
• The exhibition of these shots will lead to violation of the Plaintiff’s right to privacy as the objectionable shots; attempt to expose the body of a female which is suggested to be that of the Plaintiff. Such damage will cause irreparable loss and injury to the reputation of the Plaintiff which cannot be compensated monetarily.
• It is further contended that such action would amount to tort of injurious falsehood.
Arguments on behalf of the Defendants:
• All artisans, technicians and actors were fully aware of all the scenes in every frame right from the inception of the film and have been shot on a very precise and definite format exactly as depicted on the story board. The Plaintiff after being aware of the requirement of the scenes agreed to do the film.
• The Defendant with the consent of the Plaintiff and at her instance arranged and shot the scenes with a double/duplicate. Plaintiff’s own personal costumes and wig were used with the help of the Plaintiff’s personal hairstylist.
• Further, during the course of the shooting, the Defendant had agreed to drop the Plaintiff from the film, but it was the Plaintiff who insisted that the Defendant should use the double and convinced the Defendant to go ahead with the shooting of the scene.
• The Censors, it is contended, have certified the film with ‘A’ certificate without any cuts which shows that there are no provocative or objectionable scenes in the film as the Censor board felt that the intensity and impact of the film would be adversely affected if any cut was imposed.
• Also, the scenes objected to, are intrinsic to the film and cannot be deleted.
• The Defendant has already spent an amount of Rs. 50.00 Lakhs on advertisements as the film is scheduled to release on 6th September, 2002.
Existence of Contract:
Firstly, it is apparent that there was a story board and the Plaintiff was aware that the film was sensitive and would require certain degree of exposure. There is no material before the court to establish as a term of contract, for the Plaintiff acting in the film, she had imposed certain conditions, which had been agreed to. The letter does not amount to a binding contract and only serves as intimation that the scenes shot with the double, if objected to, would be replaced by alternate shots, which has been done with Defendant No.1. Thus, it is not possible to come to a conclusion that there was an agreement between the plaintiff and the defendant and such agreement has been breached.
Tort of Defamation
It is to be seen whether prima facie the scene enacted by the double would amount to tort of defamation. The tort of defamation in the instant case is by association. The court has relied upon the tests laid down by Carter-Ruck on Libel and Slander, Fifth Edition, which the judge must apply. The test would be based on the theme of the story and the ideas behind it. The court cannot be a moral guardian in this context. The film was meant for an adult audience as decided by the Censor Board. The fact that the Plaintiff has agreed to act in the film after being aware of the theme, the same would not amount to a case of defamation.
Tort of Malicious Falsehood
This tort relates to those statements which are false but not defamatory and which do not constitute either slander of goods or title. To constitute a case of malicious falsehood, it must be held out that the statement was false. In the present case what is sought to be contended is that the scenes involving the film artist would result in an action of malicious injurious falsehood by associating the Plaintiff with the scenes which she had not enacted. It is difficult for this court to appreciate on the facts of this case that the Defendant No.1 is liable for malicious falsehood.
Right to Privacy
Admittedly, the scenes of which objection is taken do not involve the Plaintiff’s presence. The common law is the existing law. The law applied by English courts to common law is normally followed on most occasions by the courts in this Country unless they depart from the law. The court has come to this conclusion that the tort of defamation is not proved, it will be difficult to hold that there is an invasion of the Plaintiff’s right to privacy.
Author: Paazal Arora, ILS Law College, Pune