The Bombay High Court has passed an interim order of 'take down' against a social media V-logger on prima facie findings that he had given reckless and offensive reviews of a product and cautioned that persons in such capacity should be careful that their publications do not harm others.
"A social media infuencer who has or claims to have a sound knowledge on what they claim their niche is and uses that knowledge to infuence people in believing and subscribing to the same set of ideas or thoughts they are trying to propagate on social media, have the power to infuence people, to change attitudes and mindset…whether their audience is significant or small, they impact the lives of everybody who watches their content. They do have a responsibility to ensure what they are publishing is not harmful or offensive," Justice SJ Kathawalla observed.
The order was passed in a commercial suit filed by the company producing Parachute Coconut Oil, seeking interim injunction against Youtuber Abhijeet Bhansali's video which allegedly contained disparaging remarks about their product.
As per Bhansali, he had only given an honest review of the product quality and the statements made by therein constituted bona fide opinion. He relied on the ruling in Hindustan Unilever Ltd. v. Gujarat Cooperative Milk Marketing Federation Ltd & Ors, 2017 SCC Online Bom 2572, to argue "Any campaign to educate the members of the public by placing before them the true and correct facts/ingredients used in a product should always be welcomed."
He contended that mere fact that somebody viewed his video did not mean that they were influenced into refusing to buy the Plaintiff's product. Moreover, in absence of any evidence to show that the Plaintiff has suffered any damage arising out of the impugned video, an essential ingredient of the tort of disparagement of goods was missing. He further asserted that even if case of disparagement was made out, the same wouldn't apply to him as it applies only to rival manufacturers / traders / competitors of the Plaintiff.
The Defendant went on to justify his strong remarks that the Plaintiff's product smelled like a "rotten coconut" was hyperbole / exaggeration and was not meant to be taken literally. Reliance was placed on Tata Sons Ltd. v. Greenpeace International & Anr., 2011 SCC Online Del 466.
He lastly asserted his fundamental right to speech, and submitted that as per the Supreme Court in Shreya Singhal v. Union of India, (2015) 5 SCC 1,
"Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in."
The Plaintiff on the other hand submitted that the claims and statements made by the Defendant, who was no expert, with regard to its product, was a "targeted attack" on its reputation and that those statements were false and unsubstantiated.
It was submitted that since the Defendant was not an ordinary consumer but made review videos to generate revenue, his activities were 'commercial speech" and as such, the tort of disparagement was applicable to him.
The court agreed with the Plaintiff that it was not a case where the Defendant was acting as a member of the general public expressing his unbiased opinion but rather, he made a "commercial speech" to increase his viewership.
Refuting the Defendant's argument that he was exercising his right to speech, the court held,
"Evidently, he did it to increase his viewership and hence, he fell under the "nascent category" of individuals, popularly known as "social media influencers".
It is not in dispute that commercial speech is a part of the fundamental right guaranteed under Article 19(1)(a) of the Constitution of India, however, it cannot be that the fundamental right so guaranteed under the Constitution can be abused by any individual by maligning or disparaging the product of others as is done in the present case."
The court cautioned that persons having the capacity to influence public opinion should exercise some restraint and contemplation before they express their views. It said,
"a social media infuencer, such as the present Defendant, wields the power to infuence the public mind. With power also comes responsibility. I do not believe that a social media infuencer can deliver statements with the same impunity available to an ordinary person. Such person bears a higher burden to ensure there is a degree of truthfulness in his statements.
the Defendant had a higher responsibility to ensure that his statements do not mislead the public and that he is disseminating correct information. The Defendant's recklessness has a much greater impact on the Plaintiffs / its products reputation as compared to a reckless statement by an ordinary individual."
The court held that in case it was to uphold that the law of disparagement is not applicable to the Defendant, and is applicable only to the manufacturers or traders, "it would create havoc since all the manufacturers or traders would then hire people like the present Defendant to make disparaging statements about their competitor's products under the garb of making a "review" and thereby cause serious damage to its competitors who would be left remediless."
The court held that the manner in which the video was engineered indicated that remarks made therein were not honest. The Defendant had compared the Plaintiff's product with organic coconut oil in his video. However, neither the test nor the articles sought to be relied upon by the Defendant indicated that his statements were not true. The court held that no reasonable person could on the basis of such test or articles have believed that the statements constitute the truth or that there is a reasonable possibility of the statements being believed to be true.
"The Defendant cannot under the garb of educating / bring the true facts to public, provide misleading information to disparage the Plaintiffs product. Any campaign to educate the members of the public by placing before them the true and correct facts may be welcomed. However, under the garb of educating and / or bringing the correct facts before the members of the public, no one should put misleading information which disparages / discredits or belittles someone else's product or infuence the consumer not to buy the said product, the court held while allowing the injunction application.
Case Title: Marico Limited v. Abhijeet Bhansali
Case No.: COMIP No. 596/2019
Quorum: Justice SJ Kathawalla
Appearance: Senior Advocate Virag Tulzapurkar and Advocate Hiren Kamod with Nishad Nadkarni i/b Khaitan & Co. (for Plaintiff); Advocate Dr. Abhinav Chandrachud i/b. N. Amin (for Defendant)