INTRODUCTION
With the advent of the digital world and technology-dependent generation, the graph of cybercrimes has risen with the passage of time. The term ’cybercrime’ is not just limited to that of breaching firewalls but also includes as the scope of cybercrime widens by the day. It seems to be ever-evolving with time and technology.
In the simplest terms, the harm done to an individual or company’s reputation in the eyes of a third party is referred to as defamation. The harm may be caused by spoken or written words, signs, or other visual cues.
While the constitution of India guarantees freedom of speech and expression to every citizen, it is well known that such right comes with reasonable restrictions. With high internet usage such right can be exercised more easily than ever. It is also true that for the same reason such right is also abused more widely than ever.
Defamation includes statements or remarks posted online that may have the potential to damage one’s, such acts are known as Cyber Defamation. It is the publication of false information about another individual using internet technology. Since the information is online, it is public and accessible to everyone and therefore results in extensive and irreparable harm.
The Bombay High Court in its recent judgment dated 15th January, 2022 dealt with the issue of establishing a balance between the fundamental right of freedom of speech and expression guaranteed by the Indian Constitution and disparaging comments forming cyber defamation in the case between Marico Limited Vs Abhijeet Bhansali “2020 (81) PTC 244 (Bom)”, analysis of which is presented through this article.
FACTS OF THE CASE
Marico Limited (hereinafter referred to as “the Petitioner”) is one of the leading players in the Fast Moving Consumer Goods (FMCG) market in India. Petitioner manufactures a plethora of products, one of which is the trademark of PARACHUTE which is a reputed brand in selling edible coconut oil claimed to be 100% pure and of premium quality.
Abhijeet Bhansali (hereinafter referred to as “the Respondent”), a Masters in bio-technology, is a YouTube vlogger under the name “Bearded Chokra” wherein he reviews products of various manufacturers. The Respondent published a video on 01.09.2018 titled “Is Parachute Coconut Oil 100% Pure?” wherein he reviewed the said edible coconut oil.
The Petitioner, upon watching the impugned video, sent a Cease and Desist Notice to remove the Impugned Video from social media sites.
Consequently, the Respondent defended the contents of the impugned video yet offered to remove or modify certain parts of the same subject to some conditions. In a following response the Respondent refused to delete the video as it was well within his right to express an opinion.
As a result, the Petitioner, being aggrieved by finding the video depreciating, filed an Application before the Bombay High Court praying for injunction against the Respondent using the impugned video, restraining him from the following:
- publishing or broadcasting or communicating to the public the Impugned Video,
- disparaging or denigrating the Petitioner any other product or business of the Petitioner
- infringing the registered trademarks of the Petitioner
ISSUES RAISED BEFORE THE COURT
1. Whether or not the statements, which were made by the Respondent, are false, malicious, or reckless?
2. Whether or not the statements made by the Respondent were published recklessly or maliciously / Due diligence exercised by the Respondent?
3. Whether or not the Petitioner suffered special damages due to this?
CONTENTIONS OF THE PARTIES
The Petitioner contended that the disputed video is made with a clearly biased view providing incorrect information and misleading the viewers, making them believe that the wrong test leading to the wrong comparison are conducted by the Respondent are validating the point made by the Respondent that the Petitioner’s product was made of inferior quality thereby causing damage to the Petitioner.
The Petitioner pointed out that according to the Respondent, the publication and creation of such videos and was done for commercial purpose as a part of his occupation to earn revenue out of it or to generate followers and viewership. Thus, the review given by the Respondent cannot be treated at par with a review given by an ordinary consumer.
Not only did the Respondent urge the viewers to stop using the Petitioner’s PARACHUTE coconut oil but also insisted on substituting the same with a competing product called PURE & SURE organic cold-pressed coconut oil by providing the links for purchasing the same products from online retailers like Amazon. falling under “commercial activities” and not just a general review is given by a consumer.
Most importantly, the Respondent was fully aware that the contents of the disputed video constituted the tort of malicious falsehood and slander of goods because of which the offered to delete certain parts of the disputed videos and even remake a whole new video of a fresh product of Petitioner.
Consequently, Respondent’s actions satisfy all ingredients to constitute disparagement, slander of goods, and malicious falsehood and have no proof to corroborate his allegations as the Respondent lacks knowledge of true facts and proper research of the subject matter. Relying upon the decision of this Court in Hindustan Unilever Limited vs. Gujarat Co-operative Milk Marketing Federation Ltd & Ors. 2017 SCC Online Bom 2572, the Petitioner further submitted that there is a difference between an action for defamation and action for disparagement, slander of goods, malicious falsehood which was considered by this Court and it has been held that the defences available in an action for personal defamation would not be available in the case of an action for disparagement.
The Petitioner stated that if even one customer is lost due to the Respondent’s actions, it will eventually lead or has led to special damage as it is impossible to ascertain the nature of the damage caused and it cannot be easily evaluated in monetary terms.
The Respondent contended that his negative comments were not deleted as they were made with bona fide intent and in order to educate his viewers. In the end the choice is of the viewers whether or not they want to believe the information in the video.
The Petitioner has played the trick of showing wet coconuts besides its product that misleads the consumers thereby making them believe that its product was derived from wet coconut instead of copra.
The Respondent also insinuated that the packaging of the PARACHUTE coconut oil is inferior and the cap of the bottle is also flimsy. He also suggested that the fragrance of the PARACHUTE coconut oil is very string and somewhat similar to rotten coconut.
The conclusions that the Respondent derived by conducting the tests on the product were that it is of poor-quality
Moreover, the Respondent’s offer to delete the disputed portions of his videos was an attempt to amicably settle the matter and not an admission.
Also, the Respondent gets a commission from the online site not the competitors of the Petitioner.
The advertisements of Petitioner’s product suggest that wet coconuts are used in extracting the oil and hence the comparison between virgin coconut oil or organic cold pressed coconut oil and Petitioner’s product is justified.
The article that has been referred by the Respondent is published by several scholars in various reputed journals wherein it has been stated that the quality of “copra oil” is inferior than “virgin coconut oil”.
Considering these stated facts, the Respondent submitted that the Petitioner’s product which is ‘a copra oil is a species of refined coconut oil’. Additionally, the statement of the Respondent said that the Petitioner’s product smelled similar to “a dried or rotten coconut” is just an exaggeration and was not meant to be taken literally.
The Respondent stated the pre-requisites of the tort of disparagement of goods/slander of goods as laid down in Hindustan Unilever vs. Gujarat Co-operative (Supra) as:
- the statement must be false;
- the statement must have been made with malice; and
- the Petitioner must have suffered special damage.
He submitted that none of the ingredients are present in the instant case. Therefore, the Petitioner is not entitled to any “special damages” as the damage caused from the statement to the petitioner cannot be surmised as a case of tort of disparagement of goods.
As per section 40 of the Food Safety and Standards Act, 2006 (hereinafter referred to as “the Act”), it does not require any person or consumer to take prior permission or approach the statutory authority before commenting about a product. Such a requirement will impose a very harsh burden on the freedom of speech and expression as bestowed by Article 19 of the Indian Constitution.
COURT FINDINGS
The Court held that the Respondent, undisputedly, runs his YouTube channel for commercial purposes and the impugned video constitutes to “commercial speech” under Article 19(1)(a) and 19(2) of the Constitution of India as it was also uploaded with the same purpose. The aim is to attract as much viewership as possible which helps the Respondent generate revenue and it was demonetized only after receiving the Legal Notice.
Relying on Hindustan Unilever vs. Cavincare 2010 SCC OnLine Del 2652, the Court opined that this freedom attracts reasonable restrictions, and is not an unfettered right, which includes misuse of the same to malign or disparage the products of another’s business, as in this case. Relevant para is reproduced as below:
“10.1 … The litmus test, in my opinion is, whether (Sic) reasonable or prudent man” would take the statement “seriously”- attributing a defect in the rival traders goods. It is because ultimately it is for the consumers to decide which product is better equipped to meet his needs. … Since advertisements is a form of commercial speech it is protected under Article 19(1)(a) of the Constitution of India, albeit with reasonable restrictions as provided by law. Therefore, as long as advertisements operate within the permissible areas, in other words, do not denigrate the goods of a rival, the courts should be slow in injuncting such acts.”
Similarly, in the case of Hindustan Unilever vs. Gujarat Co-operative 2017 SCC Online Bom 2572 it was held that commercial freedom of speech cannot legal amount to maligning or discrediting another’s business or business product. The relevant para is reproduced herein below:
“It cannot be disputed that advertisements and/or 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 and/or manufacturer of a product by maligning, discrediting and/or belittling the product of another manufacturer by way of negative campaign as is done in the present case.”
The judgment laid down the essentials of disparagement as below:
“18. It is equally settled that to decide the question of disparagement, the following factors are to be kept in mind:
(i) Intent of commercial
(ii) Manner of the commercial
(iii) Storyline of the commercial and the message sought to be conveyed by the commercial.
Out of the above, “manner of the commercial”, is very important. If the manner is ridiculing or condemning product of the competitor then it amounts to disparaging but if the manner is only to show ones product better or best without derogating others product then that is not actionable.”
Thus, for deciding the question of disparagement, the intent of the commercial is necessary to be considered. The bench stated that social media influencers such as the Respondent bear a great burden of ensuring that there is truthfulness in the statements that he makes online and cannot make or deliver any statement with the same amnesty available as to an ordinary individual.
A thorough inspection of the disputed video shows that except for the colour of the Petitioner’s oil in the liquid and frozen forms, the Respondent did not mention any other details the product of the Petitioner. If the Respondent seeks to “educate” his viewers thorough and proper research should have been carried out so as to upload true facts online.
Besides, the Respondent has left out few details of the products used by him in order to compare with the Petitioner’s product. Nutritional value of Virgin coconut oil is somewhat alike to the Petitioner’s product. In order to prove that there is a notable difference in the nutritional values of the products, there was no independent tests being conducted by the Respondent. There was an option of having the Petitioner’s product analysed under the Food Safety and Standards Act, 2006.
Additionally, the Court rejected the Respondent’s idea of the Petitioner making a counter video. It was stated that even if such counter video was made, the same would not have stopped the Petitioner from yet approaching the court of law.
As the Respondent’s video is somewhat liked by two thousand five hundred (2500) viewers, it can be held that the Petitioner has suffered special damages in the present matter. Thus, the impact of the disputed video on the Petitioner’s reputation and the damage suffered/loss incurred to it cannot be underestimated.
The Court directed that the Respondent must take down the disputed video from YouTube and any other social media platform whatsoever. The relevant para is reproduced as below:
“28. Before I part with the judgment, a word of caution which I believe is required in the context of the present case. Today, social media influencing is one of the most impactful and effective ways of marketing and advertising. A social media influencer who has or claims to have sound knowledge on what they claim their niche is and uses that knowledge to influence 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 influence people, to change attitudes and mind-set. This mind-set can be changed for the better, and scarily, even for the worse. This is a responsibility that should be assumed carefully. But first of all, there needs to be a deep awareness about the basic fact that this indeed is a responsibility. In today’s time, when people from all over the world are harnessing the potential of social media influencing, there is a need to understand what these responsibilities are and why they matter so much. Social Media Influencers, whether their audience is significant or small, 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.”
Hence, one cannot misuse or abuse the Fundamental Rights by maligning or disparaging someone else’s products.
AMLEGALS REMARKS
As on date, thanks to the Internet, the world has come closer in terms of interaction and communication. The said interactions have also posed a greater concern for digital offences and crimes happening online which poses certain limitations regarding easy access to the world with reasonability and caution. The fundamental freedom of speech and expression is susceptible to be exploited and abused on social media. Citizens of the internet or ‘netizens’ frequently forget that the right to dignity is also a fundamental right that is put in jeopardy as a result of careless remarks and unproven accusations under the garb of “free expression”.
The present judgment has categorically explained and elaborated the fine line between Free Expression and disparaging remarks. Though, the Respondent herein may have a better stance had the video not been made with a commercial purpose.
In today’s day and age corporate companies are prone and vulnerable to defamation as it is just one maligning comment away. The netizens have a plethora of online platforms at their disposal where they can either genuinely express or attempt to belittle the corporates they have or are working with. Corporates are advised to be vigilant and protect themselves with a binding agreement against such remarks during and after an association with another individual or group.
– Team AMLEGALS, Assisted by Mr. Rishav Kumar (Intern)
For any query or feedback, please feel free to get in touch with tanmay.banthia@amlegals.com or prarthana@amlegals.com
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