Influencing the Influencers – Bombay High Court

The Hon’ble High Court of Bombay, recently in a landmark judgment in the matter of Marico Limited v. Abhijeet Bhansali held that the right to free expression does not include the right to disparage others. The judgment came after Vlogger, Abhijeet Bhansali, who runs a channel on YouTube by the name of ‘Bearded Chokra’ posted a video criticizing Parachute coconut oil. The video ended with his recommendation asking people not to buy this hair oil and suggested other alternatives. 

Hon’ble Judge S.J Kathawalla ruled that although commercial speech is a part of fundamental rights guaranteed under Article 19(1)(a) of the Constitution, it cannot be abused by any individual to malign or disparage the product of others. The Hon’ble High Court also stated that social media influencers should exercise their rights ‘cautiously’ and ensure that their message does not harm anyone’s reputation.

Interim injunctions in cases like these have to primarily satisfy the three factors: firstly, a prima facie case exists which shows that the other party has done some wrong, secondly if an injunction is not passed then it will cause an irreparable injury and thirdly, the suffering by the party which couldn’t get the injunction in their favor will be greater than the other party. In the present case, the Hon’ble Court was of the view that Mr. Bhansali made false statements in his video either maliciously or recklessly which caused special damages to Marico.

The ambit of social media influencers included any person who has acquired a considerable number of followers on the social media attached with a certain amount of credibility in the space they operate. They could use their influence to dissuade followers from buying certain products which also means that these ‘influencers’ bear a higher burden to make sure that there is truthfulness in their statements.

So, does this mean that any social media influencer who criticizes a product will face lawsuits from the manufacturers? Certainly not! In the present case, the Hon’ble Court found ‘recklessness’ in the way Bhansali inferred and put forth the arguments which couldn’t have been said to be accurate. Hence, the influencers need to be very cautious if they are reviewing a particular product and their claim which gives an impression to the audience that the inference was drawn after the conduct of extensive research, the court needs to be satisfied that the research reasonable supports the content of the video/message. 

This view might change in the coming times with the rise of ‘influencers’ but this order will certainly be of help and worth a read for present ones. You can read the order here.