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When can expression of opinions become defamatory

12 May 2020

by Parthasarathy R. Sutapa Jana

In the case of Abhijeet Bhansali v. Marico Ltd.[1], the Division Bench of the Bombay High Court while dealing with the issue of disparagement of PARACHUTE COCONUT OIL by a video blogger, laid down the principles by which any such video or any statement can be considered to be defamatory. The Division Bench held that while opinions based on undisclosed or implied facts may be disparaging and are actionable, mere expressions of facts cannot be considered as defamation or disparagement, provided that facts asserted were substantiated.

Facts of the case

The Defendant, a ‘YouTuber’ / ‘V-Blogger’, had his own channel titled ‘Bearded Chokra’ on the website www.youtube.com, wherein, he uploaded videos reviewing products of various manufacturers.

On or about 1st September 2018, the Defendant published a video titled ‘Is Parachute Coconut Oil 100% Pure?’, wherein, the Defendant reviewed the Plaintiff, Marico Ltd.’s well-known brand PARACHUTE COCONUT OIL.

Upon coming across the above-mentioned video, the Plaintiff sent a cease and desist notice to the Defendant, subsequent to which protracted correspondence ensued between the parties.  As the parties failed to reach an amicable settlement, the Plaintiff approached the Bombay High Court inter alia praying for injunction against the Defendant from publishing or broadcasting or communicating to the public the said video disparaging or denigrating the Plaintiff’s product.

After hearing the parties, the Single Judge passed an interim injunction order in favour of the Plaintiff and against the Defendant. Aggrieved by the said order, the Defendant appealed before the Division Bench of the Bombay High Court.

Contentions of the plaintiff before the Single Judge

The Plaintiff contented that the Defendant’s video review of the Plaintiff’s product was malicious, containing words and visuals which were false in nature and had the effect of not only denigrating the Plaintiff’s product but also caused and was likely to cause special damage to the Plaintiff. It was further contented that since the creation and publication of such videos is the Defendant’s occupation, the Defendant’s review cannot be equated with a review of an ordinary consumer on account of the fact that the Defendant generates revenue from the same. It was also contended by the Plaintiff that the Defendant through his video was promoting a competing product by comparing the same with Plaintiff’s product and urging the consumers to stop using the  product of the Plaintiff. It was also contended by the Plaintiff that before making such a video the Defendant should have conducted proper research.

Contentions of the defendant before the Single Judge

The Defendant submitted that there was no intention to malign the Plaintiff’s product as statements made by him in his video were true and constitute his bona fide opinion. The said video was made with the objective of educating his viewers. Further, in the present case, the Plaintiff had shown wet coconut alongside its product in order to give an impression to the consumers that the product was derived from wet coconut whereas the oil was actually prepared from dry coconut, i.e. ‘Copra’. It was contended by the Defendant that the Plaintiff’s product was not branded or marketed as being ‘copra oil’ which is how such an oil is known. Further, since the Plaintiff’s advertisements suggest that its oil was extracted from wet coconuts,  its comparison with virgin coconut oil/organic oil was justified.  Furthermore, by placing reliance on certain scholarly articles, the Defendant submitted that his statement that Plaintiff’s product was of an inferior quality to other organic cold pressed coconut oil was absolutely correct and in accordance with scientific literature which showed that copra oil was inferior in quality to other organic cold pressed coconut oil. Relying on various judgments[2], it was also argued by the Defendant that since he was neither a trader nor a rival of the Plaintiff’s goods, the tort of disparagement of goods/slander does not apply to him. Placing reliance on the decision of the Supreme Court in R. Rajagopal v. State of Tamil Nadu[3], it was also argued by the Defendant that if a person was required to approach a statutory authority before making any comment about a product the same would impose an unduly harsh and onerous burden on the freedom of speech and expression.

Decision of the Single Judge

The Ld. Single Judge categorized the Defendant as a nascent category of individuals known as ‘social media influencers’ and observed that a social media influencer cannot deliver statements with the same impunity available to an ordinary person. Such person bears a higher burden to ensure that there is a degree of truthfulness in his statements. In view of the same, it held that the Defendant had a higher responsibility to ensure that he was disseminating correct information and the same do not mislead the public. Further, the Single Judge reiterated the following essential ingredients for establishing disparagement/slander of goods.

  • That the Defendant’s statements were false;
  • That the said statements were made and published maliciously/recklessly; and
  • That the said statements caused special damages to the Plaintiff.

In light of the above, the Ld. Single Judge noted four following instances of falsehood in the Defendant’ video.

  • No proper analysis;
  • Not showing what kind of organic coconut oil was used for comparing;
  • Using virgin coconut oil to compare the same with the coconut oil marketed by the Defendant; and
  • Giving the viewer a representation that the exemplar oil used was an organic coconut oil as against the true fact that the exemplar oil used was virgin coconut oil.

Also, the Ld. Single Judge held that in an action for disparagement/malicious falsehood/slander of goods, it is irrelevant whether the Defendant was a trader or not, so long as the necessary ingredients were satisfied.

Further, observing that the creation of videos by the Defendant was for the commercial purposes of earning revenue, the Single Judge held the said video to be a commercial activity and the opinion of the Defendant in the said video to be a commercial speech. It was also observed by the Ld. Single Judge that the fundamental right is not an unfettered right as it comes with a set of restrictions under Article 19(2) of the Constitution and the said fundamental right cannot be abused by an individual for disparaging the product of others as in this case. Moreover, the Ld. Single Judge observed that Defendant under the garb of educating and/or bringing the correct facts before the public, should not put misleading information which disparages/discredits or belittles someone else’s product or influences the consumer not to buy the product. Further, the Court also observed that the unauthorized use of the Plaintiff’s trademarks in a manner which was detrimental to its distinctive character or reputation cannot ever be in accordance with the honest practices in industrial or commercial matters.

In light of the above, the Single Judge vide Order dated 15th January 2020 held that the Defendant’s video was disparaging in nature, in its entirety and consequently, passed an interim injunction in favour of the Plaintiff and ordered the Defendant to take down/remove/block access to the said video.

 

Decision of the Division Bench

After examining the contention of the parties and the Ld. Single Judge’s observations, the Division Bench of the Court observed the following.

  • Although the law does not restrain a person from asserting a fact, damages may be awarded against said person if he is unable to substantiate the said fact.
  • If a statement is per se defamatory, an injunction must follow. However, different yardstick is to be applied with respect to opinions and subjective issues, which cannot demonstrably be shown to reveal the facts on which the said opinions are based.
  • Merely labelling a statement as opinion will not automatically make it an opinion or make it safe from the possibility of it being defamatory. If the communication can be reasonably understood and verified by the audience, such communication is not treated as opinion.
  • An expression of opinion was classified as simple and mixed. A simple expression of opinion is the one which is made after the facts on which the said opinion is based are disclosed. A mixed expression of opinion is not accompanied by any facts, either they are employed by the presenter himself or assumed by the audience receiving the said opinion. When an expression of opinion is based on disclosed non-defamatory facts, no action is supported. However, if the expression of an opinion is based on undisclosed or implied facts, the speaker is liable for making a defamatory statement, provided that the recipient believes the truth of such undisclosed or implied defamatory fact.

In light of the above, the Division Bench noted that the Plaintiff in its pleadings have admitted that the coconut oil marketed by it is extracted from copra using expeller pressed process. The same was the reason for the yellowish tint and strong odour in the oil. The said admission was considered to be acceptance of the statements of the Defendant, on the part of the Plaintiff.  Further, the Division Bench also observed that the Ld. Single Judge has wrongly held that the Defendant had compared Plaintiff's product with a virgin coconut oil as the Ld. Single Judge has overlooked the fact that even the Plaintiff had claimed its oil to be virgin coconut oil.   Consequently, the Division Bench prima facie held that the four instances of falsehood in the impugned judgment were incorrect and the only trivial error committed by the Defendant was to refer to the exemplar oil as organic coconut oil and not virgin coconut oil. The Division Bench also noted that Plaintiff’s product is value for money for cooking only, but if coconut oil at lesser price are available for cooking purposes then why would somebody pay more for Plaintiff’s product.   Consequently, the Court stayed the operation of the Single Judge’s Order subject to the condition that the Defendant modifies the video by changing the caption on the landing page of the video ‘IT’S NOT AS GOOD AS YOU THINK’ to ‘IT’S NOT WORTH THE PRICE YOU PAY FOR’ and by deleting certain words and phrases in the storyboard of the Defendant’s video as undertaken by the counsel for the Defendant within a period of two weeks from 14 February 2020.

Conclusion

The Division Bench of the Bombay High Court has held that although no person can be restrained from expressing matters of fact, he/she can be held liable for defamation, if he/she fails to substantiate the facts asserted. The Division Bench further held that if the expression of an opinion is based on undisclosed or implied facts, the speaker is liable for making a defamatory statement, provided that the recipient believes the truth of such undisclosed or implied defamatory fact. It would have been equally important and interesting if the Division Bench would have also answered the question of law framed by it relating to the additional responsibility supposedly placed on social media influencers vis-a-viz opinions expressed by others in non-commercial ventures. However, unfortunately this was not done.

[The authors are Principal Partner & Senior Associate, respectively, in IPR practice in Lakshmikumaran & Sridharan, New Delhi]

 

 

[1] Interim Application No. 1 of 2020 in Commercial Appeal (L) No. 31 of 2020 in Notice of Motion No. 1094 of 2019 in COMIP No. 596 of 2019

[2] Hindustan Unilever v. Gujarat Cooperative Milk Marketing Federation Ltd. & Ors. MANU/MH/1197/2017; Gujarat Cooperative Milk Marketing Federation Ltd. v. Hindustan Unilever Ltd. order dated 13.12.2013 in Appeal No. 340 of 2017 in Notice of Motion (L) No. 690 of 2017 in Suit (L) No. 204 of 2017, Bombay High Court (Division Bench); and Hindustan Unilevr Ltd. v. Cavincare Pvt. Ltd., 2010 (44) PTC 270 (Del)

[3] (1994) 6 SCC 632

 

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