On February 14, 2020, a Division Bench of the High Court of Bombay lifted an injunction granted to Marico Limited and permitted a social media influencer to post a video reviewing a Marico product, subject to few amendments in the video.
In January, we ( See ) discussed the controversial Interim Injunction granted in “Marico Limited vs Abhijeet Bhansali” by the High Court Of Bombay. To briefly recap the case, Abhijeet Bhansali reviewed Marico Limited’s popular product “Parachute Coconut Oil’ and uploaded a video titled “Is Parachute Coconut Oil 100% Pure?” in September 2018 on his YouTube channel by the name of Bearded Chokra. The video presently has 253,538 views and more than 800 user comments, majority of whom are questioning the quality of Parachute Oil.
Marico then filed a suit for Trademark Disparagement against Bhansali stating that the video was a targeted attack against its product and made to attract more viewers. Justice Kathawala granted an interim injunction to Marico and ordered the removal of the video, observing that social media influencers wield significant influence over audiences, whose statements have a magnified and profound impact. The Judge said that influencers could not deliver statements with the same impunity as is available to an ordinary person, and must bear a higher burden to ensure a degree of truthfulness in their statements.
Bhansali (the Appellant) challenged the decision before a Division Bench of the court headed by Chief Justice Nandrajog, which eventually lifted the injunction and allowed the video to be posted, with some amendments.
Division Bench Decision
The Division Bench drew a clear distinction between fact and opinion in its decision, which Justice Kathawala’s order had failed to do. The decision pointed out that most of the content in the video was the Appellant’s opinion and not fact, and thus, too trivial to form the basis of a legal action.
The distinction made by the court between fact and opinion was along the following lines: Where a person asserts a matter of fact, that person cannot, under law, be restrained from making such an assertion. But if the person fails to make good the fact asserted, damages can be awarded. Opinions, on the other hand, are subjective and a different yardstick applies. If the statement is per se defamatory, an injunction must follow. The court pointed out that merely labelling a statement as an opinion does not automatically make it an opinion or make it safe from the possibility of it being defamatory.
The court went on to undertake an anatomical analysis of fact and opinion. It said, if a reader or listener could reasonably understand that a communication is stating a fact that is verifiable, such communication is not treated as stating an opinion. Further, it said, an expression of opinion may be simple or mixed. A simple opinion is one made after the facts on which the opinion is based are presented. If an expression of an opinion is based on disclosed non-defamatory facts, legal action is not supported, however unreasonable or derogatory the opinion might be. However, if the opinion is based on undisclosed or implied facts, legal action depends on the understanding of the statement. If the recipient reasonably believes the truth of an undisclosed or implied defamatory fact about the subject of the statement, the speaker is liable for making a defamatory statement.
The Appellant had also objected that Marico was misleading the audience by displaying a fresh coconut split into two with water dropping at its packing where in reality, the oil was processed from dried coconuts. Marico argued that it was justified in such “puffing”, to which the court said that the Appellant is also entitled to “bluffing”. Marico had also raised concerns about the tests that the Appellant had claimed to have conducted in the video. For example, it said that the Appellant was conducting random tests to compare virgin coconut oil with Marico’s ordinary coconut oil. The Appellant showed the frozen version of virgin coconut oil, which is definitely clearer when compared to ordinary coconut oil. Marico argued that such a comparison was unreasonable as virgin coconut oil is colourless in liquid form and snow white in frozen form whereas ordinary coconut oil is yellowish in both forms. However, the court did not question the veracity of tests conducted by the Appellant.
Many questions which remained unanswered in the original injunction granted by the single judge were answered in this judgement. However, trademark disparagement per se was again not touched upon, even though Marico had pressed the issue. Rather than pushing the law forward on trademark disparagement, therefore, this judgment has created new jurisprudence on the roles, responsibilities and rights of social media influencers. For such influencers, whose main business lies in reviewing various products and giving opinions, it is essential to have the contours of free speech drawn clearly and correctly. This judgement provides a little clarity on this issue. With virtual networks growing at an exponential pace every day, however, it is likely that cases like these will come up again in the future.