SOCIAL-MEDIA INFLUENCERS AND FREEDOM EXPRESSION: AN COMMERCIAL INTERFACE

Vatsal Srivastava | Rajiv Gandhi National University of Law, Punjab | 31st March 2020

Introduction

In a relatively novel phase of the Digital Era, the entire internet user base comprises people who are aware and people who are vulnerable. Amidst the growing reliance on the internet, particularly social media and its influencers, it is imperative that such reliance does not result in the exploitation of the vulnerable section and its beliefs. Recently, there was instance of a YouTube influencer filing a suit (Commercial Appeal) in the Bombay High Court against a FMCG Company as a result of an order by a Single-Judge of the Bombay High Court wherein it ordered to pull down a video posted by him on his channel. 

Abhijeet Bhansali v. Marico Limited

Facts

The Appellant in this appeal is a social media influencer who runs a channel on YouTube by the name “Bearded Chokra”. On this channel, he uploads reviews of cosmetic and grooming products. In one such video, he reviewed a “coconut oil”, a product marketed by the Respondent Company that runs under the trademark “Parachute”. In this review video, he claimed that the Respondent company’s product was of a very inferior quality and that it was not a genuine product. In addition, he also conducted some scientific tests as claimed in the video, to test the purity of the oil in contrast to an organic (later admitted to be virgin, not organic) oil he already had with himself. 

This was found to be disparaging by the Respondent Company and they approached the Bombay High Court. The Single-Judge of the High Court that adjudicated the case, upon due inspection and scrutiny, ordered that the video be taken down on account of being misleading, false and malicious. It also observed that the reckless statements given by the influencer damaged the company’s reputation of that product and would continue to do so in its presence.

Issue

The primary question of law before the Double Bench was concerning the fundamental right to freedom of expression and how a commercial forefront can impose restrictions on such freedom. 

Judgement

The Double Bench of the Bombay High Court comprising Pradeep Nandrajog, C.J. and Bharati Dangre, J. listened to this commercial appeal. It observed that the Single-Judge had erred in arriving at the conclusion that the comparison between the two products was unfair and false. The Bench also noted that the company’s claim of selling ‘virgin’ coconut oil were false to begin with, which did not give a right to the company to raise the same allegation on another party. 

It also observed that the error committed by the Appellant was trivial in nature and such trivial error would not mislead the viewer who would be a prudent person, thereby not causing damage to the Respondent’s company’s reputation. 

However, the bench did acknowledge the erroneous claims of the YouTuber, which as pointed out and observed by the Single-Judge in the earlier order dated 15^th January 2020 and ordered them to be deleted from the video. The Single-Judge also ordered to change a statement “It’s not what you think” to “It’s not worth the price you pay for”. 

The Double Bench ordered a stay on the aforementioned earlier order on the condition that the explicitly outlined comments be deleted and the necessary modifications be made in the video within a period of two weeks before being put up for the public. 

Analysis

The quintessential aspect of an ideal judgement is the balance and the effort to maintain equity in the judgement. The Double Bench at the Bombay High Court made an attempt to uphold that aspect and keep it undeterred by directing necessary modifications in the video. However, the sole reliance on the concept of freedom of expression in the commercial sphere does take away the essence of reasonable restrictions keeping in mind the proposition this article began with i.e. the vulnerability of the viewer class. It is an undeniable fact that the entire viewer class is not homogenous and varies across the country and outside and the same should have been taken into consideration by the Bench. When it is also understood as a reality, there would be questions that will be raised with respect to the protection of the vulnerable section of the viewer class, which would blindly follow anything their social media influencer would claim. The interests of that gullible internet user base have been left out in the Judgement, if not of the Respondent company’s product and its market.