"Social Media Influencers have a responsibility not to publish harmful or offensive content", Bombay HC directs vlogger to remove Parachute Oil video

The Bombay High Court recently observed that Social Media Influencers, whether their audience is significant or small, impact the lives of everybody who watches their content. Therefore, they have a responsibility to ensure what they are publishing is not harmful or offensive, the Court opined..Justice SJ Kathawalla made the observation while passing an interim injunction order on Wednesday, directing a Video Blogger to remove a video which contained alleged defamatory and disparaging remarks about Parachute Oil until further orders from his YouTube channel and other websites..The order was passed on a plea by Marico Limited seeking removal of the videos by defendant video blogger and special damages on allegations that the videos contained disparaging and denigrating remarks about the brand..Justice Kathawalla observed,."Today, social media influencing is one of the most impactful and effective ways of marketing and advertising. A social media influencer who has or claims to have a sound knowledge on what they claim their niche is and uses that knowledge to influence people in believing and subscribing to the same set of ideas or thoughts they are trying to propagate on social media, have the power to influence people, to change attitudes and mindset.…this mindset can be changed for the better, and scarily, even for the worse. This is a responsibility that should be assumed carefully. But first of all, there needs to be a deep awareness about the basic fact that this indeed is a responsibility. In today’s time, when people from all over the world are harnessing the potential of social media influencing, there is a need to understand what these responsibilities are and why they matter so much.".Social Media Influencers, whether their audience is significant or small, impact the lives of everybody who watches their content. They do have a responsibility to ensure what they are publishing is not harmful or offensive.Justice SJ Kathawala (Bombay High Court).Before putting out facts of the case, Justice Kathawalla noted in the judgment,“The rapid expansion and commercialisation of the Internet has brought forth novel legal disputes which challenge the conventional principles and precedents which apply to them. The present matter is an example of just that.”.Factual background.The defendant, Abhijeet Bhansali, runs a YouTube channel ‘Bearded Chokra’. In September 2018, he uploaded a video titled ‘Is Parachute Coconut Oil 100% Pure?’ wherein he reviewed the plaintiff’s Parachute Coconut Oil..In January, last year, the plaintiff came across the video and alleged that the defendant had made claims and statements about plaintiff’s product which are false and unsubstantiated. The Plaintiff found that as a whole, the video in question is disparaging and denigrating in nature..The plaintiff, therefore, approached the Bombay High Court for an injunction to restrain the defendant from publishing or broadcasting the impugned video and infringing registered trademarks of the plaintiff company’s business..Submissions.It was submitted by Marico that the video provides incorrect information and deceives the viewer into believing that tests conducted therein substantiate defendant’s claim that plaintiff’s product is of inferior quality..Moreover, it was submitted that defendant seeks to promote two other competing products and said acts fall under the category of commercial activities and not a general review of the product by an ordinary consumer..Relying on the Bombay High Court's ruling in Hindustan Unilever Limited v Gujarat Co-Operatrive Milk Marketing Federation, it was submitted that there is a difference between an action for defamation and an action for disparagement, slander of goods, malicious falsehood..Along with Senior Counsel Virag Tulzapurkar, advocates Hiren Kamod and Nishad Nadkarni, instructed by Khaitan & Co, appeared for plaintiff, Marico Limited..On the other hand, the defendant video blogger submitted that he had no intention to malign and the fact that he did not delete adverse comments against his video shows that he acted bona fide to educate his viewers..Moreover, it was argued that statements made by him in impugned video are true and constitute his bona fide opinion. It was also submitted that the defendant is not a trader or a competitor for plaintiff’s goods and the tort of disparagement of goods or slander of goods does not apply to him..Advocates Abhinav Chandrachud and N Amin relied on Shreya Singhal v Union of India decided by the Supreme Court to make their case. Arguments defending the video were also made citing the right to freedom of speech guaranteed under Article 19 (1) (a) of the Constitution of India..Social media influencers cannot deliver statements with same impunity as ordinary person, Bombay HC.After perusing submissions and past judgements on record, the High Court observed that while the defendant is not the plaintiff's competitor, he is also "not acting as a member of the general public who is expressing his unbiased opinion / view on the Plaintiffs product." .Further that,“Evidently, the Defendant is falling under a nascent category of individuals, popularly known as ‘social media influencers…these influencers often employ the goodwill they enjoy amongst their followers / viewers to promote a brand, support a cause or persuade them to do or omit doing an act. Much like the present case, they may even dissuade their followers from purchasing a certain product.". Justice Kathawalla went on to note that a social media influencer wields power to influence the public mind and with that power also comes responsibility..“I do not believe that a social media influencer can deliver statements with the same impunity available to an ordinary person."Justice SJ Kathawala (Bombay High Court)."Such person bears a higher burden to ensure there is a degree of truthfulness in his statements. A social media influencer is not only aware of the impact of his statement but also makes a purposeful attempt to spread his opinion to society / the public.”.Therefore, the Court noted that in present case, the defendant had a higher responsibility to ensure that his statements do not mislead the public and that he is disseminating correct information..“The Defendant’s recklessness has a much greater impact on the Plaintiffs / its product’s reputation as compared to a reckless statement by an ordinary individual.”.The Court also examined storyboard and description of impugned video and said that at this stage, it reeks of malice and makes out the requirements for disparagement or slander of goods..Moreover, Justice Kathawalla observed that publication of said video is a commercial activity and defendant’s opinion on it amounts to commercial speech. .The Court went on to observe, “The Defendant cannot under the garb of educating / bring the true facts to public, provide misleading information to disparage the Plaintiffs product. Any campaign to educate the members of the public by placing before them the true and correct facts may be welcomed.”.Ultimately, granting interim relief to plaintiff Marico, Justice S J Kathawalla held,“In view of the above, I am satisfied that Plaintiff has made out a prima facie case for grant of interim reliefs. The balance of convenience is in favour of the Plaintiff. If the injunction as prayed for by the Plaintiff is not granted, the Plaintiff is likely to suffer irreparable harm and injury.”.The Court has directed the defendant to take down / remove and / block / restrict access to the video from the URLs mentioned in the complaint pending hearing and final disposal of the plea. .[Read Judgment dated January 15, 2020]