In February 2019, Marico Limited (Plaintiff) filed a suit along with a motion seeking interim reliefs against the Defendant who had created and posted a video about the Plaintiff's Parachute Coconut Oil on his Youtube Channel on the basis that the content of the video was denigrating, disparaging and misleading in nature and also made uncertified usage of the Plaintiff's registered trademarks.

The Plaintiff had initially issued a cease and desist notice to the Defendant recording its objections to the content of the video and calling upon him to take down the video. The Defendant offered to delete some particular portions of the video, justified certain portions and, also made an offer to alter the video subject to certain conditions that were not acceptable to the Plaintiff. Accordingly, the suit was filed on the grounds that the said video was fraught with reckless, disparaging, and false statements targeted against the Plaintiff's popular Parachute coconut oil and the grounds that the Defendant had sought to give incorrect, misleading, and unsubstantiated information to the viewers with a view to influence them into believing that the Plaintiff's product was of inferior quality and inferior to other oils.

The Plaintiff contended that the video was published by the Defendant in the course of his occupation and trade as a YouTuber or blogger, the intent, manner, and storyline of the video was meant to disparage the product of the Plaintiff and had caused special damage to the Plaintiff and constituted the tort of slander of goods and disparagement. Moreover, the Defendant also promoted competitive products in his video. He sought to attract viewers by using the goodwill and reputation of the Plaintiff's product and made financial gains by diverting his viewer traffic to online retail sites for the purchase of several other rival products as well as by seeking monetary sponsors or donations for his social media channel.

The Defendant asserted that the said video constituted his genuine opinion, inter alia, as a consumer and, was safeguarded under the fundamental right to freedom of speech and expression. It was the Defendant's case that he was not a competitor or trader of the Plaintiff; the video was his effort at educating the customers in regard to the quality of coconut oils and that the consumers were entitled to exercise their judgment. He also sought to make an argument on the Bonnard Principle, that the content in the video was based on research and material and that once he claimed truth or justification as a defense, no injunction ought to be granted without a trial.

Issue

The issue was whether interim relief can be granted and whether their audience was significant or not and the influencers impacted their lives, and thus, do they have a responsibility to ensure that what they are publishing is not harmful or offensive.

Judgment

The decision, in this case, is a landmark decision and is first of its kind since the matter was contested and a detailed reasoned interim order has been passed by the Court after considering the detailed submissions on several issues from both parties.

The Court has held that the Defendant's video was created and published without applying due diligence or research and his statements in the video were made with recklessness, without caring whether they were correct or incorrect. The Court also found that the Defendant knowingly made fallacious representations to its viewers and that on counts more than one, it had become obvious that the Defendant's video reeked of hatred. The said video, the Court observed, caused special damage to the Plaintiff since it became apparent to have induced some customers into not purchasing the product of the Plaintiff as was obvious from comments posted on the impugned video. The Court held that the Plaintiff had satisfied all the tests to establish a case for slander of goods, malicious falsehood, and disparagement, and it did not matter that the Defendant was an individual and not a competitor. The Court further held that the Defendant's video, under the garb of educating members of the public, was particularly targeted at the Plaintiff's product and contained misleading information that disparaged and belittled the said product. The video also made uncertified use of the Plaintiff's registered trademarks in a way that was detrimental to its distinctive character or reputation and was not according to honest practices in commercial or industrial matters, held the Court.

As regards the argument of freedom of speech, the Court held that the right was not unfettered and could not protect reckless statements. The Court also held that the Bonnard Principle was not applicable to the facts of the case since the Defendant had not been able to prima facie show bonafide and the comparison shown in the video was not justified on the material placed before the court. The Court further observed that the principle was applied in cases of defamation and not in cases of disparagement and also in the context of the erstwhile jury system in the UK, but was no longer applicable even in the UK after the Defamation Act, 2013 came into force and the jury system came to an end for such matters. It held that the principle could also not, therefore, be applied in the Indian context to the present case. Before parting with the judgment, the Court also opined that with the arrival of the internet and social media platforms; social media influencers powerfully impact the lives of their viewers and people at large and also stressed the responsibility they have to ensure what they are publishing is not offensive or harmful. The Court accordingly directed the Defendant to take down the video and remove it from Youtube and any other platform in any medium whatsoever.