A disclaimer is generally a statement intended to demarcate the scope of rights and obligations that may be exercised and enforced by parties in a legally recognized relationship. In the business world, some disclaimers are intended to limit exposure to damages after harm or injury has already been suffered by the consumer of such product or service after the consumption.
In today’s business oriented world disclaimers are everywhere, basically meant to protect a business from any possible legal action. Therefore terms of service and disclaimers are so important in the introduction of any business in its beginning. A disclaimer on your website protects you from claims against your business towards information provided through or in respect of the products or services. In the same manner, it is usual in films to use a disclaimer to reduce the possibility of legal action for libel which under the law of torts is a malicious, false statement in written media, a broadcast, or otherwise published words, etc., thereby maligning the reputation of a person or giving inaccurate details about an event/occurring and any person who believes that he or she has been libeled via their portrayal in such work whether portrayed under their real name or a different name, may approach the Court of law and seek for a stay on release/broadcast of such works of fiction and any other such further legal action.
Usually, disclaimers help filmmakers to use cinematic liberty to an unlimited extent and are mostly used in works like biopics or period films or works which are inspired or based on real/true events. Such disclaimers usually begin by saying :
“All characters appearing in this work are fictitious. Any resemblance to real persons, living or dead, is purely coincidental.”
Through this statement, the upfront reduces the possibility of being taken to the Court by any person who believes that he or she or a particular event or group of people have been libeled via their portrayal in the work. The wordings and legal impact of such disclaimers may differ from jurisdiction to jurisdiction, and from country to country. However, the disclaimer is an intelligent way to prevent legal actions even if the whole plot of the fictional work may or may not be intentional. We have also seen in some movies/ web series with such disclaimers wherein the defence or armed forces of the country are portrayed falsely or their personal life is portrayed in an absurd manner. Even though disclaimers don’t fix everything especially when the content is way too misleading and disturbing and can\’t save the producers/filmmakers of such fictional works or protect a fictional work if it is making false claims, false advertising, misleading its consumers/viewers, etc. but attorneys of such producers/filmmakers can still use such disclaimers before the authorities to reduce the scope of liability towards such producers/filmmakers. Also in certain cases, the disclaimer statement is legally binding and may protect such producers/filmmakers against certain frivolous lawsuits which may be filed against them even out of business rivalries etc.
With the help of such disclaimers, a producer/filmmaker helps preserve his/her freedom of creation in his/her art. For example, if a producer is sued for portraying people of a certain civilization in a bad light in his fictional work then such producer/filmmaker can claim with the help of the disclaimer that if certain people of a certain civilization in his/her movie are corrupted, that does not necessarily say that the real ones are corrupted too which may help the producer to escape liability and help protect his work of fiction, even though the intention of such producer/filmmaker may be a debatable issue. But such disclaimers legally help preserve freedom of creation.
A fictional work meant for entertainment should not be constrained by real world issues up to that point though there may be limits but those usually coincide with balance and common sense and may at times lead to hurting sentiments of a group of people and may disturb public peace, even if such content etc has been approved to be released/telecasted by the competent authorities set up for such purposes, even though such regulatory bodies are yet on the verge of being set up for OTT platforms. Also at times, there is a possibility in an otherwise completely fictional film/series, a particular scene or dialogue may offend a group of people and hence may cause legal hurdles for creators of such content and may risk the same towards being taken down from broadcast from the platform releasing the same.
Using the disclaimer improves chances of avoiding or reducing the possibility of lawsuits or such further liability which may be decided by the Court of law in such cases. However, if the two entities i.e. real person and character in a certain fictional content share too many things in common then such fictional work and people associated with the same especially the director/producer might face legal consequences. Creating a character and changing the name might not be enough, as there are many things that could help people associate two people that share other details: social background, ethnicity, particular episodes, appearance, job, etc. If someone knows the person you took inspiration from and, based on details in the book, they can identify that person in that character and the inaccurate representation in respect of the same, it may bring the fictional content may end up being in trouble and/or negative light. This is why the disclaimer is useful but doesn\’t make any work of fiction or its makers invincible.
Also, rules under the Anti-tobacco Act in operation since November 2011 has made it mandatory that a 20-second anti-tobacco disclaimer, explaining tobacco\’s ill effects, which will be shown at the beginning and middle of the films and valid explanation of such scenes in the film. Also Cinematograph (certification) Rules, 1983 make it mandatory to declare that no cruelty/harm was caused to the animals used during the shooting of the films produced in India, and scenes showing cruelty to or abuse of animals are not presented needlessly.
As per the Information and Broadcasting Ministry’s circular of 2016 to filmmakers, if a movie has rash driving scenes, filmmakers also have to add a disclaimer stating that performing such scenes by the audience may violate traffic laws/rules hence should not be emulated.
However now-a-days, disclaimers are no longer a few lines but have become lengthy paragraphs which may comprise every possible aspect, that can “hurt sentiments”, thereby leading to protests and landing filmmakers in trouble. In the case of Bata India Ltd vs A.M. Turaz &Ors on 15th October 2012, the Delhi High Court refused removal of a song in the film Chakravyuh whose lyrics included the brand name of the Plaintiff organization but asked the filmmakers to add a disclaimer to the song. The disclaimer, which appears in the beginning of Chakravyuh, states, “Use of the names in the song are merely as examples. No injury or disrespect is intended to any particular person or brand. In the case of Phantom Films Pvt. Ltd. And Anr vs The Central Board Of Certification on 13 June 2016 the Bombay HC ruled in favour of the film Udta Punjab to be released with A-certificate but asked to change the disclaimer. The modified disclaimer reads, “…Punjab has been a highway of drugs and not the end consumer”.
So no doubt in various jurisdictions there are legal precedents about how much a fictional character/event can resemble a living person/event and cause people to think that the character is obviously that living person or event was actually the way it was portrayed in such fiction and may create certain negative or positive impression or influence in the minds of people about such person or event etc which may be a debatable issue on moral grounds whether if in case is inaccurate portrayal is correct or incorrect, however, such disclaimers help such content creators to preserve freedom of cinematic / visual arts and help in reducing chances of being sued or escape further legal liability.
-Vaidehi Harshad Samant
Advocate, Mumbai
1. According to Black’s Law Dictionary, libel is ” A defamatory statement expressed in a fixed medium, esp. writing but also a picture, sign, or electronic broadcast.”
2. https://www.tribuneindia.com/news/archive/nation/defamation-cases-against-newton-makers-for-showing-crpf-in-bad-light-539637
3. https://www.medianama.com/2020/06/223-alt-balaji-and-zee5-censor-web-series-after-public-backlash/
6. https://www.outlookindia.com/newsscroll/raazi-didnt-do-justice-to-my-book-harinder-sikka/1686794
8. https://indiankanoon.org/doc/7582180/?type=print
9. https://indiankanoon.org/doc/116968980/
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