This Case Commentary is written by Shravya Mohan a Second-year law student of The National University of Advanced Legal Studies, Kochi

CASE DETAILS: -

NAME - Marico Limited vs Abhijeet Bhansali

COURT - Bombay High Court

EQUIVALENT CITATION - AIRONLINE 2020 BOM 3109

BENCH - S. J. Kathawalla

DECIDED ON – 15 January, 2020

CASE TYPE – Civil

PARTIES – Plaintiff: Marico Limited

Defendant: Abhijeet Bhansali

INTRODUCTION

The case Marico Limited v. Abhijeet Bhansali is a significant legal dispute that addresses the intersection of commercial defamation, freedom of speech, and the responsibilities of product reviewers in the digital age. Marico Limited, a major Indian Fast-Moving Consumer Goods (FMCG) company known for its Parachute Coconut Oil, filed a suit against Abhijeet Bhansali, a YouTuber operating the channel "Bearded Chokra," for publishing a video questioning the purity and quality of their product. The "Is Parachute Coconut Oil 100% Pure?" video allegedly made derogatory and libelous claims about the product, implying that it was of lower quality and endorsing substitutes.

Marico filed an injunction to prevent Bhansali from releasing the video any further, claiming that the remarks were malicious, untrue, and harming the company's reputation. Bhansali, on the other hand, defended his video as a genuine review aimed at educating consumers, invoking his right to freedom of speech under Article 19 of the Indian Constitution. The case highlights the challenges posed by the rise of independent online product reviews and the potential legal consequences of making unfounded or reckless statements in commercial speech.

FACTS

Marico Limited, a prominent FMCG company in India, manufactures and markets various products, including Parachute Coconut Oil, a well-known brand. Marico claims that Parachute Coconut Oil enjoys a high reputation for quality and is synonymous with pure, edible coconut oil. Marico contended that its product was manufactured in compliance with regulations, including the Food Safety and Standards Act, 2006, and that Parachute Coconut Oil is 100% pure, natural, and unrefined. Abhijeet Bhansali, a YouTuber who runs a channel called "Bearded Chokra," published a video titled "Is Parachute Coconut Oil 100% Pure?" on or around September 1, 2018. In this video, Bhansali reviewed Parachute Coconut Oil and claimed that the product had impurities, was of inferior quality, and was made from poor-quality coconuts. Bhansali also demonstrated a “freeze test” in the video, claiming it showed the presence of impurities in Parachute Coconut Oil and promoted alternative products such as Pure & Sure Organic Cold Pressed Coconut Oil. Marico alleged that the video contained false, defamatory, and disparaging statements aimed at damaging the brand’s reputation. According to Marico, Bhansali's claims were unsubstantiated, and the so-called “freeze test” was misleading. Marico also argued that the defendant’s video was a targeted attack intended to attract views and promote competing products, which harmed Marico’s reputation and goodwill. Marico sent a cease-and-desist notice to Bhansali on January 28, 2019, requesting the removal of the video. In response, Bhansali refused to remove the video, claiming he had a right to express his opinions. Subsequent attempts to settle the matter failed, leading Marico to file the present suit on February 11, 2019. The case was brought before the Bombay High Court, where Marico sought an injunction to prevent Bhansali from further disseminating the video and to prevent further damage to the Parachute Coconut Oil brand.

ISSUES RAISED BEFORE THE COURT

· Whether the defendant made false, malicious, or reckless statements?

· Whether the statements were published recklessly or maliciously?

· Whether special damages were suffered by the plaintiff?

RELATED PROVISIONS

· Article 19(2) & 19(1)(a) of the Constitution of India

· Consumer Protection Act 2019

· Food Safety and Standards Act, 2006

ARGUMENTS

Plaintiff’s Contentions

The defendant published the video with malicious intent to get more viewers. Impugned Video as a whole is disparaging and false. The defendant promotes a competing product in the video in substitution for the product of the plaintiff and urges the viewers to stop using the Plaintiff’s oil. The acts of Defendant fall under the category of commercial activities as well as attempts to seek monetary donations/sponsors for his channel and not a general review.

The defendant was fully aware that the contents of the video constituted the tort of malicious falsehood and that, for this reason, the Defendant offered to delete certain portions of the video (after issuance of legal notice) where he sought to make a comparison and also offered to make a completely fresh video after a re-evaluation of a fresh product of the Plaintiff.

The defendant’s actions satisfy all ingredients to constitute disparagement, slander of goods, and malicious falsehood. Special damage does not mean special in terms of quantum but special in the sense that the loss cannot be evaluated in money and that it is impossible to ascertain the nature of the damage.

Defendant’s Contentions

There was no malicious intent, and the purpose of the video was only to educate viewers. The plaintiff has used the trick of showing a wet coconut alongside its product to fool consumers into thinking that its product was derived from wet coconut instead of copra.

The defendant’s offer to delete certain parts of the video was made as a concession to settle the dispute and was not an admission.

Upon buying products by clicking on the link mentioned by Defendant, Defendant receives a commission from the online site not the competitors of Plaintiff. However, Defendant’s recommendations and review videos in the past have been made without receiving any commission. The plaintiff uses the term ‘coconut oil’ when they are selling copra oil, which is of inferior quality. Statements made by the Defendant in the Impugned Video are true and constitute bona fide opinion.

The defendant has a fundamental right to freedom of speech.

Some of the words of the defendant, such as the smell of the plaintiff’s product is akin to a dried or rotten coconut,’ were used for exaggeration and were not to be taken literally.

The plaintiff has shown no proof that its revenues have gone down since the video was uploaded. An action for disparagement/malicious falsehood/slander of goods can only be against a trader or a competitor.

Plaintiff’s Rejoinder

If the defendant intended to create an educative video with the consumer’s interest in mind,

The defendant should have approached any independent laboratory to conduct tests. Food Safety Standards Act, 2006 in Section 40 provides for a remedy whereby a Purchaser can have food analysed by a Food Analyst on payment of a fee.

Defendant’s rejoinder

The Learned Advocate for the defendant submitted that –

1. To hold that newspaper reports cannot be relied upon at the interim stage because they are hearsay would mean that virtually no document can be relied upon unless the author of the document is the deponent who has verified the pleadings.

2. At the interlocutory stage, the court must confine itself to the material which has been brought on record, without examining whether or not the same is proven.

3. To determine whether or not there is “malice” in a case it must be ascertained whether the defendant made the statement knowing that it is false or with reckless disregard as to whether it is true or false.

4. The defendant was not actuated by malice since he referred inter alia to the test prescribed by the reputed Dr Bruce Fife in evaluating the product of the plaintiff.

JUDGEMENT AND ITS ANALYSIS

The court stated that the defendant being a ‘social media influencer’ bears a higher burden to ensure there is a degree of truthfulness in his statements and added that a social media influencer cannot deliver statements with the same impunity available to an ordinary person.

Whether the Defendant’s Statements are False?

A perusal of the video shows that except for the colour of the plaintiff’s oil in the liquid and frozen forms, the defendant has not mentioned or analysed any other details of the plaintiff’s product. Conversely, the defendant has omitted details of the products used by him to compare with the plaintiff’s product.

The nutritional value of Virgin Coconut oil and the plaintiff’s products are almost identical. The defendant has not conducted any independent tests to prove that there is a significant variance in the nutritional values of the products. The defendant did have the option of having the plaintiff’s product analysed under the Food Safety Standards Act, 2006. This would have shown the bona fides of the defendant in giving the correct and true information about the product.

Falsehood on the part of the defendant is also evident from the fact that the only test conducted by the defendant to conclude that the plaintiff’s product is of inferior quality is the ‘Freeze Test.’ The plaintiff’s product is an Unrefined Expeller pressed Coconut Oil and not Virgin Coconut Oil. In the video, the defendant uses and shows the words ‘organic coconut oil’ for the other oil used by the defendant.

However, the defendant compares ‘virgin coconut oil’ with the plaintiff’s product. If the two oils used by the defendant for conducting the ‘freeze test’ did not belong to the same category i.e., ‘organic coconut oil’, the parameters of colour and particulate matter used by the defendant and the result based thereon would not only be inaccurate but also erroneous. The defendant has purposely and knowingly misrepresented to the viewers that he was comparing the plaintiff’s product with ‘organic coconut oil’ when in reality he was comparing it with ‘virgin coconut oil’.

Whether the Defendant’s Statements Were Malicious or Reckless?

In the impugned Video, the defendant has made use of forceful statements and thus has portrayed himself as an expert who has undertaken extensive research. The literature relied upon by the defendant pertains to gauging the quality of ‘Virgin Coconut Oil’ and is thus inapplicable to the present case.

The Article does not demonstrate how the discoloration in ‘Coconut Oil’ or a strong smell in ‘Coconut Oil’ is a sign of inferiority. The article does not refer to the colour of unrefined oils made from copra or that any inference is to be drawn in respect of colours of unrefined Coconut Oil.

In the context of oils made from copra, the article only mentions that the same may contain mold (fungus) but the same is not harmful in any nature or form. Thus, the article in no manner or form lends credence to the findings made by the defendant.

The defendant had no reason to believe that the statements he made were true since there is material concerning the plaintiff’s product to demonstrate that such belief was possible. Thus, the defendant’s statements have been made with recklessness and without caring whether they were true or false.

Whether any special damages were caused to plaintiffs?

The plaintiff has suffered special damages in the present matter as the Defendant’s video assumable has been liked by two thousand five hundred (2500) individuals and thus the impact of the video on the plaintiff’s reputation and the damage caused to it cannot be underestimated.

The defendant has afforded no explanation for using the term ‘rotten coconuts. Later in his video, the defendant once again insinuated that the plaintiff’s product might be made from poor-quality coconuts. In an action for disparagement/malicious falsehood/slander of goods, it is irrelevant whether the defendant is a trader or not so long as the necessary ingredients are satisfied.

Fundamental rights cannot be abused by any individual by maligning or disparaging the product of others.

The Court accordingly directed the defendant to take down the video and remove it from YouTube and any other platform in any medium whatsoever.

The court granted a temporary injunction against Bhansali, ordering him to remove the video from YouTube and any other platform. It recognized that while freedom of speech is a fundamental right, it must be exercised responsibly, especially when it involves the reputation of established brands and businesses. Social media influencers, in particular, have a heightened responsibility to ensure the truthfulness of their statements, given their wide reach and influence over consumers.

CONCLUSION

The Bombay High Court ruled in favour of Marico Limited, granting an interim injunction against Abhijeet Bhansali, thereby restraining him from further publishing or broadcasting the impugned video that disparaged Parachute Coconut Oil. The court found that Bhansali’s video contained false and defamatory statements that were not backed by credible evidence or legitimate testing, such as the “freeze test,” which was deemed unscientific and misleading. While the court acknowledged the importance of freedom of speech under Article 19 of the Indian Constitution, it held that this right does not extend to making malicious and false claims in the context of commercial speech. The court emphasized that product reviews must be based on facts and that reckless or defamatory statements aimed at harming a company’s reputation are not protected speech. The court also noted that Bhansali acted with malice and lacked due diligence, as his video promoted competing products and sought to damage the reputation of Marico’s Parachute Coconut Oil. Given the commercial harm caused, the court determined that the balance of convenience favoured Marico and concluded that the brand had suffered irreparable damage. Thus, the interim injunction was granted, and Bhansali was prohibited from further publishing or promoting the disparaging content about Parachute Coconut Oil, pending the outcome of the trial.

This case serves as a precedent for future disputes involving product reviews and consumer protection in the digital age. It underscores the delicate balance between protecting free speech and ensuring that businesses are not unjustly harmed by false or reckless statements. As social media continues to evolve as a powerful platform for consumer influence, this judgment highlights the need for influencers to adhere to higher standards of accuracy and responsibility in their content.

REFERENCES

· (Marico Limited v. Abhijit Bhansali) <https://www.livelaw.in/pdf_upload/pdf_upload-369176.pdf> accessed 23 September 2024