Marico Limited v Abhijeet Bhansali

 

Marico Limited v Abhijeet Bhansali

In The High Court Of Judicature At Bombay

 

NAME OF THE CASE	Marico Limited v Abhijeet Bhansali
CITATION	2020 (81) PTC 244 (Bom)
DATE OF JUDGEMENT	15 January 2020
PLAINTIFF	Marico Limited
DEFENDANT	Abhijeet Bhansali
CORAM	S.J. Kathawalla
STATUTES INVOLVED	Food Safety and Standards Act, 2006 The Constitution of India
IMPORTANT SECTIONS/ARTICLES	Food Safety and Standards Act, 2006 – Section 40 Indian Constitution – Articles 19(1)(a) and 19(2)

 

Abstract

In early 2020, the Mumbai high court was asked to adjudicate upon a matter involving a social media influencer. The Bombay High Court’s judgement in the case determines the character of social media influencers’ relationship with marketers and followers had a sway on the court’s decision.  In the above-mentioned case wherein the Learned Judge of Hon’ble High Court of Bombay Justice S. J. Kathawalla restrained by an order of temporary injunction a social media influencer regarding a video wherein he reviews a branded coconut oil and compares it with Virgin Coconut Oil.  The Learned judge found the Video to be false and trivializing. The Influencer in question filed an appeal that reversed the findings of the Learned judge, subject to few modifications in the video.

 

Introduction

The rapid growth and commercialization of the Internet have brought forth novel legal disputes which challenge the traditional ideas and precedents which apply to them. The present case is an instance of such a dispute.

 

Facts of the Case

Marico Limited, the Plaintiff’s most famous trademarks, are Parachute under which it markets inter alia its edible coconut oil. The Defendant, on his YouTube channel named “Bearded Chokra”, uploads videos in which he critiques merchandise of numerous manufacturers. The Defendant posted a video titled “Is Parachute Coconut Oil 100% Pure?”. In this video, the Defendant reviewed the Plaintiff’s Parachute coconut oil.

It is the Plaintiff’s case that in the video, the Defendant makes claims and statements regarding the Plaintiff’s Parachute edible coconut Oil, which is false and uncorroborated.  The Plaintiff said that overall, the video was disparaging and maligning in nature. The Plaintiff through its Advocates dispatched an e-mail to the Defendant wherein the Defendant was asked to stop posting or in any way communicating about the video to the public and calling upon him to take away the video from all his social media websites inclusive of his YouTube channel. 

The Defendant responded to the Plaintiff’s advocates by Defending his video and additionally proposed to re-make/adjust and/or delete parts of the video concerning the conditions stated therein.  The Defendant dispatched another e-mail to the Plaintiff’s advocates pointing out that he's awaiting a response from the Plaintiff.

The Plaintiff, via its Advocates, responded with an e-mail pointing out that the contents of the Defendant’s emails have been taken into consideration by the Plaintiff and asked the Defendant to take away the video in the meantime.  The Defendant refused to conform with the aforesaid request of the Plaintiff, pointing out that he had a right to voice his opinion.

The Plaintiff filed the present case and on February 13, 2019, the Plaintiff made an application for urgent interim reliefs. The Plaintiff inter alia prayed for an injunction against the Defendant, restraining him from publishing or broadcasting or speaking to the public about the video, maligning or denigrating the Plaintiff’s Parachute Coconut Oil product or any other merchandise of the Plaintiff or the Plaintiff’s enterprise and infringing the registered trademarks of the Plaintiff.

 

 

Issue Before the Court

1.    Whether the statements published by the Defendant were made recklessly or maliciously or whether due diligence was exercised by the Defendant?

2.    Whether any special damages were suffered by the Plaintiff?

 

Arguments From the Plaintiff’s Side

The Defendant posted the video with malafide intention to get more views. The video, as a whole is maligning and false in nature. The Defendant promotes a competing product in the video as a replacement for the merchandise of the Plaintiff and urges the viewers to prevent the use of the Plaintiff’s oil. The acts of the Defendant fall beneath the category of business activities as well as tries to seek monetary donations/sponsors for his channel and not a simple review.

The Defendant was aware that the contents of the video constituted the tort of malicious falsehood and that for this reason, the Defendant offered to delete parts of the video (after issuance of legal notice) wherein he sought to make an assessment and additionally offered to make a fresh video after a re-assessment of a new product of the Plaintiff.

The Defendant’s actions fulfil all elements constituting disparagement, slander of goods, and malicious falsehood. Special damage does not mean special in terms of quantum, however special in the sense that the loss cannot be evaluated in monetary terms and that it's not possible to examine the nature of the damage.

If the Defendant supposed to create an educative video with the consumer’s interest in mind, the Defendant must have approached any independent laboratory to conduct tests. Food Safety Standards Act, 2006 in Section 40 provides for a remedy wherein a Purchaser can have food analysed through a Food Analyst on the payment of a fee.

 

Arguments From the Defendant’s Side

There was no malicious motive, and the reason of the video was simply to educate its viewers. The Plaintiff has used a trick of showing a wet coconut along its product to fool customers into thinking that its product was derived from wet coconut instead of dried coconut.

The Defendant’s offer to delete certain components of the video was made as a concession to settle the dispute and not an admission.

Upon buying merchandise through clicking at the link cited by the Defendant, the Defendant gets a commission from the website and not the competitor of the Plaintiff. However, the Defendant’s suggestions and assessment videos in the past were made without receiving any fee. The Plaintiff uses the term ‘coconut oil’ whilst they are in reality, selling dried coconut oil that is of inferior quality. Statements made by the Defendant in the video are real and represent bona fide opinion

The Defendant has a right to freedom of speech.

Some of the phrases of the Defendant, including that the odour of the Plaintiff’s product is akin to ‘a dried or rotten coconut’ were used for exaggeration and were not to be taken literally. The Plaintiff has shown no evidence that its sales have gone down because of the video being uploaded. An action for disparagement/malicious falsehood/slander of products can only be towards a trader or a competitor.

The Learned Advocate for the Defendant submitted that –

1.    To maintain that newspaper reviews cannot be relied upon on the interim stage since they may be hearsay would mean that virtually no document can be relied upon unless the author of the document is the deponent who has verified the pleadings.

2.    At the interlocutory stage, the court needs to confine itself to the material which has been brought on record, without examining whether the same is proven.

3.    To decide whether there is “malice” in a case, it needs to be ascertained whether the Defendant made the assertion knowing that it's false or with reckless dismissal whether it's real or fake.

4.    The Defendant was not actuated by malice since he referred inter alia to the test prescribed by the Dr Bruce Fife in evaluating the product of the Plaintiff.

 

Provisions Involved

1.    Food Safety and Standards Act, 2006:

a.    Section 40 - Purchaser may have food analysed. -

1)      Nothing contained in this Act shall be held to prevent a purchaser of any article of food other than a Food Safety Officer from having such article analysed by the Food Analyst on payment of such fees and receiving from the Food Analyst a report of his analysis within such period as may be specified by regulations: Provided that such purchaser shall inform the food business operator at the time of purchase of his intention to have such article so analysed: Provided further that if the report of the Food Analyst shows that the article of food is not in compliance with the Act or the rules or regulations made thereunder, the purchaser shall be entitled to get refund of the fees paid by him under this section.

2)      In case the Food Analyst finds the sample in contravention of the provisions of this Act and rules and regulations made thereunder, the Food Analysts shall forward the report to the Designated Officer to follow the procedure laid down in section 42 for prosecution.

2.    Indian Constitution:

a.    Article 19 (1) (a) – All citizens shall have the right to freedom of speech and expression.

b.    Article 19 (2) – Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

 

Judgement

The court said that the Defendant being a ‘social media influencer’ bears a higher burden to make sure there's a degree of truthfulness in his statements and added that a social media influencer cannot deliver statements with the same impunity available to a regular person.

A perusal of the video suggests that except for the colour of the Plaintiff’s oil in the liquid and frozen forms, the Defendant has not referred to or analysed any other details of the Plaintiff’s product. Conversely, the Defendant has overlooked details of the goods used by him to compare with the Plaintiff’s product.

The Defendant has not carried out any independent assessments to show that there's a significant variance in the nutritional values of the goods. The Defendant did have the choice analysing the Plaintiff’s product under the Food Safety Standards Act, 2006. This could have proven the bona fide of the Defendant in giving the right and authentic data about the product.

Falsehood on the part of the Defendant is likewise obvious from the fact that the only test carried out by the Defendant to conclude that the Plaintiff’s product is of inferior quality is ‘Freeze Test’. The Plaintiff’s product is an Unrefined Expeller pressed Coconut Oil and not Virgin Coconut Oil. In the video, the Defendant uses and indicates the words ‘organic coconut oil’ for the other oil used by the Defendant.

However, the Defendant compares ‘virgin coconut oil’ with the Plaintiff’s product. If the two oils used by the Defendant for carrying out the ‘freeze test’ did not belong to the same class i.e., ‘organic coconut oil’, the parameters of colour and particulate matter used by the Defendant and the result primarily based thereon could not only be erroneous but also inaccurate. The Defendant has purposely and knowingly misrepresented to the viewers that he was comparing the Plaintiff’s product with ‘organic coconut oil’ whilst in fact he was comparing it with ‘virgin coconut oil’.

In the video, the Defendant has made use of forceful statements and therefore has portrayed himself as a professional who has undertaken substantial research. The literature relied upon by the Defendant relates to gauging the quality of ‘Virgin Coconut Oil’ and is therefore inapplicable to the present case.

The Defendant had no purpose to consider that the statements he made were authentic because there's material regarding the Plaintiff’s product to illustrate that such notion was possible. And therefore, the Defendant’s statements were made with recklessness and without being concerned whether they had been authentic or false.

The Plaintiff has suffered special damages in the present case because the Defendant’s video has been liked by two thousand five hundred (2500) people and therefore the impact of the video on the Plaintiff’s reputation and damage induced to it cannot be underestimated.

The Defendant has afforded no reason for the use of the term ‘rotten coconuts. Later in his video, the Defendant has once more insinuated that the Plaintiff’s product is probably made from poor-quality coconuts. In an action for disparagement/malicious falsehood/slander of goods, it's irrelevant whether the Defendant is a trader if the important ingredients are satisfied.

Fundamental rights cannot be abused by any person by maligning or disparaging the product of others. The Court for that reason directed the Defendant to take down the video and take it down from YouTube and every other platform in any medium whatsoever. A temporary injunction was granted against the Defendant.

 

Conclusion

Social media is the ideal platform to misuse the fundamental right to speech and expression guaranteed to every citizen of this country. While one makes use of this right as a defence to derogatory statements made by them, they often overlook the fact that the right to dignity is likewise a fundamental right that's at stake due to the reckless statements and baseless accusations they make. Social media in general nowadays has given people the opportunity to mention anything they need without having to worry about being punished.

In the present case, the defendant published a video about the quality of a product. Not just him, anyone has a right to do so. But only after ensuring that their accusations if any are backed by strong theories and evidence. In the present case, he not only used incorrect tests, however, was himself confused betwixt completely different products. The largest hassle with the video is him adding his qualifications, that is one of the best methods to make the viewers agree with the statements and accusations made.

The judgement was in favour of the defendants, and it rightly struck down the inappropriate and notably irresponsible statements made by the defendant.