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Social media influencers, freedom of speech and trademark disparagement

In today’s hyper-connected world, social media influencing is one of the most impactful and effective ways of marketing and advertising. But while many of us are familiar with the hashtag culture and the drill used by social media influencers – ‘like’,  ‘share’,  ‘comment’ and ‘subscribe’, we do not necessarily understand who an influencer actually is.

The evolution of social media has naturally lent itself to the emergence of social media influencers, who  reach millions of people everyday through various platforms. They review anything and everything, ranging from  vitamins to clothing or to even, simply, a lifestyle.  These influencers often employ the goodwill they enjoy amongst their audience to promote a brand, support a cause, or persuade them to do or refrain from doing an act. The impact of such influencers cannot be overstated. Social media influencers have the power to change the attitudes and mindset of people. But with great power also comes great responsibility! And this is where a recent Bombay High Court decision comes in.

On 15 January, the High Court in “Marico Limited vs Abhijeet Bhansali”, discussed the duties and obligations of social media influencers. The judgement pivoted around the question of whether posting remarks against a well known product on a social media website was protected under  the right to freedom of speech and expression, or whether it would be subject to reasonable restrictions.

Marico Limited (the “Plaintiff”) whose well-regarded brand “PARACHUTE” holds 46.7% of the market share in the category of edible coconut oils, instituted legal proceedings against Abhijeet Bhansali (the “Defendant”), a video blogger (“vlogger”) who runs a channel titled “Bearded Chokra” on YouTube. The Defendant allegedly uploaded a video titled “Is Parachute Coconut Oil 100% Pure?” in September 2018, criticizing the Plaintiff’s product. In the video, the Defendant made statements such as “IT’S NOT AS GOOD AS YOU THINK!! I’LL PROVE IT!!!!” and “it smells similar to a dried or rotten coconut.”

The Plaintiff’s case for disparagement

The Plaintiff contended that the Defendant’s video was a targeted attack against its product, made to attract more viewers towards the video. The Plaintiff argued that the video provided incorrect information and deceived the viewer into believing that the tests conducted (as shown) substantiated the Defendant’s claim that the Plaintiff’s product was of inferior quality. The Plaintiff also said that the Defendant sought to promote two other competing products by providing links for purchasing those products from online retailers, and that the acts of the Defendant fell under the category of ‘commercial activities’ and not a general review of the product by an ordinary consumer. 

The Defendant’s case for bona fide opinion

The Defendant, on the other hand, claimed that the contents of his video were true and constituted his bona fide opinion. To support his case, the Defendant also submitted several scholarly articles from reputed scientific journals, in which clinical trials have shown that “copra oil” is inferior in quality to “virgin coconut oil”. He relied upon extracts articles, papers and other similar literature to compare copra oil and virgin coconut oil. The Defendant argued that the Plaintiff had not suffered any “special damage” arising out of the video, and unlike an ordinary case of defamation, damage to the Plaintiff from a false / defamatory statement could not be presumed in cases involving the tort of disparagement of goods. The Defendant also submitted that he was neither a trader / manufacturer nor a rival of the Plaintiffs goods, and as such, the tort of disparagement of goods / slander of goods would not apply to him.

Judgement: With power also comes responsibility

The Bombay High Court used this dispute on trademark disparagement to hold forth on the power and responsibilities of social media influencers. It said that such individuals only knew too well that they wielded significant influence over their audience, and that their statements have a magnified and profound impact. The Court said that their followers place a certain degree of trust in social media influencers, and accept their statements as facts without much scrutiny. The Court further stressed upon the fact that a social media influencer cannot deliver statements with the same impunity available to an ordinary person.

The Court held that, in the present case, the Defendant had a higher responsibility to ensure that his statements did not mislead the public and that he was disseminating correct information. It noted that the statements were made with recklessness, and without caring whether they were true or false. Neither the test conducted by the Defendant in his video, nor the articles relied upon indicated that the statements made and published by the Defendant were true, or that any reasonable person could, on the basis of such test or articles, have believed that the statements constituted the truth, or that there was a reasonable possibility of the statements being believed to be true.

On Freedom of Speech and Expression

The Court said that the Defendant cannot assert a fundamental right to abuse the Plaintiff’s product by making false and malicious allegations against it to gain monetary benefit. In this regard, the Court applied the tests with regard to limitation on the right to commercial speech under Article 19(1)(a) and 19(2) of the Constitution.

The Court said that the fundamental right to freedom of speech and expression is not an unfettered right. While it is absolutely necessary to maintain and preserve the freedom of speech and expression, it is equally necessary to have some restrictions on this freedom for the maintenance of social order in democracy. Since no freedom can be absolutely unlimited, Article 19(2) provides the grounds on which reasonable restrictions on the freedom of speech and expression can be imposed. While advertisements and commercial speech are a part of the fundamental right guaranteed under Article 19(1)(a), the fundamental right cannot be abused by any individual by maligning,  disparaging, discrediting or belittling the product of others by way of a negative campaign, as is done in the present case.

The Court held that, therefore, the Defendant cannot, under the garb of educating or “bringing the true facts to the public”, provide misleading information to disparage the Plaintiff’s product. Any campaign to educate the members of the public by placing before them the true and correct facts may be welcomed. However, such an excuse should not be used to  put out misleading information which disparages, discredits or belittles someone else’s product or influences the consumers not to buy the said product. Additionally, the unauthorized use of the Plaintiff’s registered trademarks by the Defendant in a manner which is detrimental to its distinctive character or reputation cannot be in accordance with the honest practices in industrial or commercial matters.

The Court determined that the video in question must be removed, but, fortunately, did not grant the Plaintiff’s request in respect of the Defendant’s future works, holding that the question of whether or not content created by the Defendant in the future was disparaging would be decided in the facts and circumstances of the case.

Conclusion

Many questions still remain to be answered, such as the liability of competing firms in the event that a social media influencer is shown to be deliberately promoting their products. Even the question of trademark disparagement per se was not touched upon, even though the Plaintiff made out a case for the same. Nevertheless, this is a landmark judgement, in that it is the first to discuss social media influencers and their roles in society. With virtual networks growing at an exponential pace everyday, it is likely that cases like these will come up again in the future.

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