Authored by Avni Sharma, a student of B.B.A. L.L.B (Hons.) – National Law University Odisha
The question of balance between the right to reputation and the right to freedom of speech and expression has grown with the increased number of platforms to express one's opinions and ideologies. One has multiple ways to express his or her opinion on varied platforms. The clash surfaces when there is a comparison between freedom of speech and expression and right to reputation. Often, when the right to freedom of speech and expression is exercised beyond the prescribed limits, it becomes an infringement of the right to reputation. The right to reputation includes the protection of dignity and preservation of individual respect in society. Commercially, the right to reputation has a different connotation. A product creates its own goodwill in the market through various management methods and such products are generally trademark protected. However, the question remains, are these products immune from dangers such as the harm to reputation? This danger is known as Product Disparagement in legal terms. Matters relating to such issues have frequently come up in courts and different guidelines have been given effect to in pursuance.
Recently, the Bombay High Court was faced with a similar issue related to the extent of freedom of speech and expression through online platforms. Social media content on platforms like Facebook, Instagram and YouTube involve 'Social Media Influencer's' review on various products. In the case of Marico Ltd. v Abhijeet Bhansali, this question has been addressed in meticulous detail.1 The present article will analyse the right which will take the higher pedestal and the reason behind it.
Marico Ltd. v Abhijeet Bhansali
The plaintiff is a fast-moving consumer goods company that manufactures products inter alia packaged oil under the trademark name 'Parachute'. The dispute arose from a video on a prominent social media platform known as YouTube. The impugned video contained a critique regarding the plaintiff's product. The plaintiffs claim that the product is:
- Without solvents; and
- Retains all its natural nutrients.
Moreover, the product also possesses the all the essential licenses required by the Food Safety and Standards Act, 2006.2 The defendant has published a critical video regarding the product backed with listed reasons. The plaintiff prayed for injunction against the defendants, restraining them from publishing and broadcasting the video in contention. They also request for restricting the court to restrict the defendants from disparaging any of their products. The infringement of registered trademark is also sought be restricted.
Trademark Infringement and Product Disparagement
For a liability to exist, the defendant must satisfy all the ingredients to constitute disparagement, slander of goods and malicious falsehood.3 The constituents of slander of goods/ product disparagement/ malicious falsehood include:
- The impugned statements must be false;
- There must be a clear intent of causing harm;
- There must be damage caused by such impugned statements.4
The defendant claims that “This video was only to bring awareness to the general public of the inferior quality of parachute coconut oil.” The defendant also contends that he conducted the tests required before publishing the video along with providing the court with scholarly articles which were referred before the publication of the video.
The court held that the freedom of speech and expression needs to be put on a higher pedestal than that of right to reputation. The reason being, the presence of the Social Contract Theory. The theory propounded that the public surrendered their freedom in return of certain liberties and rights. One of the most important rights among them was the freedom of speech and expression. The freedom of speech and expression has only certain restrictions which include, inter alia, Defamation, Sedition, Morality.
However, in the present case, the impugned video contains only opinion regarding the product. There has been no infringement of right to reputation. In the first place, there is no presence of any false information as the review is only an opinion by one person.The court suggested that the 'social media influencers' ought to have a check on the objectionability of the content. They must ensure that their content does not harm the reputation of any product which may result in loss of market share.
Discussion as to Objectionable Content
Further, the court also suggested that the parties must sit across a table and discuss the amount of objectionable content. If the parties agree on taking down certain parts of the impugned video, they may do so as a result of the deliberation.
The freedom of speech and expression, being one of the most important rights, must always take precedence. The courts have begun to support freedom of speech and expression over any other right and that is a positive step towards having a country which provides its citizens, the practical right to free speech and not just, theoretical ones that are never implemented.
1.Marico Ltd. v Abhijeet Bhansali MANU/MH/0081/2020.
2. Food Safety and Standards Act, 2006.
3. Halsbury's Laws of England Volume 8, Paras 274, 275, and 277 at pages 137, 138 and 140.
4. Dabur India Limited v M/S Colortek Meghalaya Private CS(OS) No. 2029/2009.
5. Free speech takes precedence over reputation: HC on video, https://www.business-standard.com/article/pti-stories/free-speech-takes-precedence-over-reputation-hc-on-video-120012801228_1.html as accessed on 8th February 2020.
6. Freedom of Speech On A Higher Pedestal Than Reputation; Bombay HC Asks Vlogger and Marico to Sit Across The Table https://www.livelaw.in/news-updates/freedom-of-speech-on-a-higher-pedestal-than-reputation-bombay-hc-asks-vlogger-and-marico-to-sit-across-the-table-152106?infinitescroll=1 as accessed on 7th February 2020.
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