Social Media Influencers or Vloggers cannot abuse Freedom of speech and expression by making maligning or disparaging statements: Bombay HC

The Bombay High Court gave a ruling against a “YouTuber” / “V-Blogger and held that under the garb of educating/bringing the true facts to public, no one should provide misleading information which disparages/discredits or belittles someone else’s product or influences consumers not to buy the said product. The Court went on to hold that freedom of speech and expression is not an unfettered right. The fundamental right of Freedom of Speech and Expression under Article 19 of the Indian Constitution cannot be abused by any individual by making maligning or disparaging statements.

The Defendant is a “YouTuber”/“V-Blogger” and has a YouTube channel titled “Bearded Chokra” on the website www.youtube.com. On the channel, the Defendant produces and uploads videos wherein he reviews products of various manufacturers.

In September 2018, he published a video titled “Is Parachute Coconut Oil 100% Pure?” wherein he reviewed PARACHUTE coconut oil (manufactured by Marico Ltd. – Plaintiffs). In the video he claimed to have undertaken a ‘Freeze Test’ on the basis of which he concluded that the Plaintiff’s PARACHUTE COCONUT OIL is of an inferior quality. By his acts he dissuaded his followers on YouTube from purchasing the product.

The counsel for the Plaintiffs contended that if the Defendant intended to create an educational video with the consumers’ interest in mind and to bust the tricks used by companies to fool consumers, the Defendant should have approached any independent laboratory to conduct tests and to give verified results to the consumers instead of the ‘Freeze Test’. It was further contended that the alleged test conducted by the Defendant is a wrong test and the comparison is a wrong comparison. The Plaintiffs alleged that the Defendant’s actions constituted disparagement, slander of goods, and malicious falsehood.

The Bombay High Court held that Social Media Influencers who have acquired a considerable follower base on social media alongwith a degree of credibility in their respective space have a magnified and profound impact on their audience. 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.

Justice S. J. Kathawalla observed that, “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. 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 do have a responsibility to ensure what they are publishing is not harmful or offensive.”

The Court held that if the law of disparagement is not made applicable to the Defendant and if it is made applicable only to the manufacturers or traders, it would create havoc since all the manufacturers or traders would then hire people like the present Defendant to make disparaging statements about their competitor’s products under the garb of making a “review” and thereby cause serious damage to its competitors who would be left remediless.

The High Court ordered the Defendant to cease and desist from publishing or in any manner communicating the Impugned Video to the public and calling upon him to remove the Impugned Video from social media sites including his YouTube channel.

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