In our last post on the above subject captioned matter, we had covered the Brief Facts of the matter, the decision of the Learned Single Judge in the present matter and the key takeaways from the said decision. Pertinently, the Learned Single Judge had granted a temporary injunction towards the removal of said video. The said post/article was Part I of our post on the captioned matter and is accessible here.
Part II pertains to the decision of the Appellate Court against the said order of the Learned Single Judge of the Bombay High Court.
Permissible Limits of Conducting Product Reviews by Social Media Influencers (Decoding Marico v. Abhijeet Bhansali): Part II
Abhijeet Bhansali v. Marico Limited
Commercial Appeal (L) No. 31 of 2020
Date of Decision: 14.02.2020
The order of the Division Bench is not a very detailed order. The Division Bench first formulates the question of law to be decided in the matter.
The Division Bench went through the Impugned Video and summarized the video as:
- That the Appellant has a test which he wants to share with the viewers to find out the quality of the coconut oil.
- The Appellant shows that after refrigeration the organic coconut oil is transparent and Respondent’s product has a yellowish tint.
- The Appellant draws the conclusion that Respondent’s product is unrefined and is inferior in quality to cold pressed coconut oil and this being the result of Respondent’s product being extracted using the expeller pressed process, from the fact that parachute coconut oil shows a yellow tint and emits very strong odour.
- The Appellant links the strong coconut fragrance emitted by Respondent’s product to the poor quality of coconuts used or being heated to a very high temperature because both result in a strong coconut odour.
On the basis of the above, the Division Bench made the following observations:
On the law of Freedom of Speech vis-à-vis statements of facts or statement of opinions or defamation
- Where a person asserted a matter of fact, it cannot be restrained from expressing himself.
- In cases of opinions or subjective issues, different considerations apply.
- Whether a statement is a fact or opinion depends upon whether the consumer can verify the statement. If yes, the same cannot be treated as opinion.
- If an opinion is based on disclosed non-defamatory facts, an action against it is not maintainable, irrespective of how unreasonable or derogatory the opinion is.
- However, if opinion is based on undisclosed or implied facts, support of an 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 defamatory statement.
On statement of facts made in the present case
Admittedly, Respondent’s product is not extracted from fresh coconut oil and it uses expeller pressed process. This results in yellowish tint and a strong odour. Thus, Respondent accepts statements of facts made by Appellant that the suggested claim of Respondent that its oil is extracted from fresh coconut, is false.
On errors committed by the Learned Single Judge
- Learned Single Judge has wrongly held that the Appellant has compared Respondent’s product with an unknown product which was a virgin coconut oil.
- The Learned Single Judge has overlooked the fact that even the Respondent had claimed its oil to be virgin coconut oil.
On the effect of Appellant comparing Virgin Coconut Oil with Organic Coconut Oil
- The only error committed by the Appellant is to refer to the exemplar oil as organic coconut oil because the reference is to virgin coconut oil, but this is a trivial error and does not mislead the viewer who would clearly understand that the essentiality of the presentation is that Respondent’s product is not extracted from fresh coconuts and that the expeller pressed process is used to extract the oil from Copra.
The Appeal was allowed with some minor modifications to the video. However, the dominant message conveyed by the video was not restricted.
The Hon’ble Division Bench does not make a difference between defamation and slander of goods/disparagement as done by the learned Single Judge. The Division Bench also does not see it as a major problem that the products compared were not same. The Division Bench was of the view that if a fact pertaining to a product (irrespective of same comparative product) can be vertified by a consumer, it is a fact and any opinion based on such a verifiable fact can be made. Such an opinion is not actionable.
We also see a completely different approach to the same subject matter between the Court of First instance and the Appellate Court. The Appellate Court in fact gives a finding that the Respondent makes a false statement (coconut oil being extracted from fresh coconut) whereas the Learned Single Judge found the Appellant to be indulging in malicious, false and reckless acts.
A perusal of the Division Bench decision shows that the defence of ‘statement being truthful’ is something that will always be a test of law in matters of defamation or product disparagement.
Key take aways for Social Media Influencers from the Division Bench Judgment
- Social Media Influencers or even competitors should be objective in their analysis and their opinions should be based out of verifiable facts.
- In case the opinion is not verifiable, it can be an actionable wrong against them. Depending upon the nature of the content of the statement the contours of fact based defamation can be determined.
- Thus off the cuff remarks against any product especially well-known products should not be made by Social Media Influencers.
It is further stated that entities hiring Social media Influencers might also be covered under the net of such actions as a proper or necessary party depending upon the facts of the case and they should also ensure diligence on their part as well as part of Social Media Influencers while making any statement against any product/service. The Idea is very simple ‘Truth Alone Triumphs’ but substantiated.
Contribution by: Ms. Pragati Pachisia, JCCLC, Kolkata