By Arpit Kalra and Sehar Sethi
Introduction
The legal battle between Zydus Wellness Products Ltd V. Mr Prashant Desai [1] highlights the complexities of the interplay between the legal position regarding ‘disparagement’ and the constitutional right to freedom of speech, vis-à-vis the recent culture of social media influencers. With Zydus Wellness being a prominent player in the nutrition market, with COMPLAN being one of their flagship brands for decades (a product which many readers in their childhood may have in fact used), facing disparaging remarks made by a prominent social media health influencer, the stars had lined up for a legal Geostorm. This case rightly emphasizes upon the responsibility of social media influencers to provide verified and accurate information. The Hon’ble High Court of Delhi, in the present case emphasises upon the importance of tempering the right to freedom of speech with responsibility and due diligence and further imposes responsibility upon social media influencers to not presume the role of professionals in the garb of content creation.
Brief Facts
In the present case, Zydus Wellness Products Limited (hereinafter referred as Plaintiff) is a renowned food and nutrition company in India, which has established its well reputed brand ‘COMPLAN’ over decades. The Plaintiff has secured registrations for the said mark and its variations in India across multiple classes, including 5, 29, 30, and 32. The brand is recognized as a significant player in the market – along with notable competing brands such as Horlicks and BournVita.
Mr Prashant Desai (hereinafter referred to as the Defendant) is a prominent social media influencer, who focuses on health and lifestyle topics, including discussing products sold in the market and highlighting their potential health risks or benefits.
In April 2024, the Plaintiff discovered a video posted by the Defendant on Instagram. The video contained defamatory statements about various products, including the Plaintiff’s registered trademark ‘COMPLAN,’ alongside other brands. In the video the Defendant can be seen making the following statements regarding the products mentioned:
- “Don’t give these 3 foods to your kids ever.”
- “No. 3, Bournvita, COMPLAN, Horlicks. Don’t mix them in the milk in the morning for your kids.”
- “2 scoops contains 40- 50 grams of sugar that’s 200% of your kids daily requirement of sugar.”
After coming across the impugned video, the Plaintiff contacted the Defendant via Instagram and LinkedIn, requesting to remove the impugned video. However, they did not receive any response from the Defendant. Following an unanswered legal notice, the Plaintiff filed the present case, claiming that the Defendant’s false statements could mislead his large audience.
Contentions of the Plaintiff
- The Plaintiff claimed that the Defendant made false and misleading statements about its product ‘COMPLAN’ in a viral Instagram video. Further the impugned video being available on social media, allowed consumers to view it repeatedly and the same harms the Plaintiff’s reputation and goodwill. The Plaintiff cited the case Gillette India Limited v. Reckitt Benckiser [2] in support of this claim.
- The Defendant, a self-proclaimed nutritionist, should have been more cautious in posting the impugned video since the claims made by him are bound to have a much greater impact on the Plaintiff and its products/ marks as compared to an ordinary individual.
- The Plaintiff cited the ASCI’s Guidelines for Influencer Advertising, stating that health influencers like the Defendant must disclose their medical qualifications and certifications in relevant posts, which the Defendant failed to do. The Plaintiff further claimed that the impugned video breached the 2022 Guidelines for Preventing Misleading Advertisements.
- The statements made by the Defendant met the trinity test criteria: they are false, published maliciously, and have caused special damages. The Plaintiff referred to the case of Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. [3]in support of this claim.
- The Defendant inaccurately claimed that ‘COMPLAN PISTA BADAM’ contains 40-50g of sugar, whereas it is significantly less than the Defendant’s assertion. The Defendant misrepresented facts by claiming daily sugar limits for children, disregarding that only added sugar has specific recommendations.
- The Plaintiff acknowledged the importance of freedom of speech but asserted that it is not absolute and cannot infringe on their rights and reputation. In this regard, the Plaintiff relied on the case of Subramanian Swamy vs Union of India (WP(C) No. 5909/2013).
Contentions of the Defendant
The Defendant is a prominent social media influencer focused on health and lifestyle. He has completed multiple certifications in Nutrition Science and Exercise Physiology from Stanford, furthering his expertise in health and fitness. The following contentions were argued by the Defendant:
- The ASCI guidelines are not mandatory and serve only as discretionary principles.
- To establish a case for disparagement, the Plaintiff must prove the statements were false, made with malice, and caused special damage, which the Plaintiff has failed to do.
- The impugned video aimed to raise awareness about the harmful effects of high sugar intake in children and is hence protected under Article 19(1)(a) of the Indian Constitution, which ensures the right to freedom of speech, as long as it doesn’t violate Article 19(2) which imposes restrictions on the right. In this regard, the Defendant relied on the landmark case of Shreya Singhal vs. Union of India (2015) 5 SCC 1.
Analysis of the court
The Hon’ble High Court at the outset elaborated upon the concept of an “Influencer” discussing that audio and visual media influences human thoughts, evolving from paper to today’s social media. This rise has led to the emergence of social media influencers, who can significantly impact public perception either positively or negatively. The court hence, while making the present judgment, viewed the facts from the lens of determining whether the Defendant, as a social media influencer, disparaged the Plaintiff’s product ‘COMPLAN’. The relevant factors considered by the court while making the judgment have been discussed below:
- Lacking qualifications as a doctor, nutritionist, or dietician, the Defendant critiqued the composition of the Plaintiff’s product ‘COMPLAN’ despite having no expertise in the same. In view of the same, the court highlighted that being a social media influencer does not grant him authority to comment on such matters from the perspective of having a greater impact on his followers.
- Social media influencers should not overstep their role by pretending to be professionals without proper qualifications as also provided in the ASCI guidelines. Such influencers must hence possess the necessary qualifications for making health related posts. The claims made in the impugned video lack credibility thus, influencers must be cautious in sharing information, given the significant impact they have on the public.
- The Plaintiff, complies with all necessary authorizations and regulations from the Food Safety and Standards Authority of India (FSSAI), hence, the Defendant’s impugned video undermines these approvals without justification.
Effect on public at large
- With its wide reach—over 349 million views, the impugned video could have a lasting negative impact on public perception, deterring consumers from purchasing the Plaintiff’s product.
- The court relied upon the case of Arvind Kejriwal v. State & Anr[4]., to emphasise that even though freedom of speech is a fundamental right, it does not permit individuals to harm others’ reputations especially in a digital landscape where social media amplifies the impact of such statements. The court noted that the rapid dissemination of online content requires the law to adapt to effectively.
Article 19 of Constitution of India
- Article 19 of the Constitution of India guarantees freedom of speech and expression but is subject to reasonable restrictions, including those related to defamation. While individuals can express opinions freely, this does not grant a ‘Social Media Influencer’ the right to disparage a product. Allowing such negative statements would also undermine established laws and regulations, including those set by the FSSAI. A ‘Social Media Influencer’ like the Defendant can only invoke Article 19 of the Constitution if they act responsibly and within acceptable limits.
Disparagement
- The court relied upon Black’s Law Dictionary to define disparagement as “A false and injurious statement that discredits or detracts from the reputation of another’s property, products or business.”
- The Defendant, is not allowed to directly name the Plaintiff’s product ‘COMPLAN’ in a negative manner critiquing its composition.
- The court further relied upon Dabur India Limited vs. Colortek Meghalaya Pvt. Ltd [5]to reiterate that the act of disparagement has to be considered on the basis of three prong test: A false statement is made with the intent to cause financial harm, the statement is made maliciously to inflict injury, the statement results in special damages which are satisfied in the present case.
Conclusion
The Hon’ble High Court of Delhi passed the judgment in favour of the Plaintiff given the Defendant’s lack of relevant qualifications and disparaging comments made by him. Consequently, the unauthorized use of the Plaintiff’s registered mark ‘COMPLAN’ in the video harmed the trademark’s reputation, constituting infringement under Section 29(8) of the Trade Marks Act, 1999.
This judgment is of great relevance and importance in this era, considering the incalculable power and reach wielded by influencers. As such videos can be not only be seen by millions online on social media platform, but can subsequently be reshared tens of thousands of times, it is imperative that social media influencers exercise proper due diligence with respect to their content. As such, this judgment not only sets a good precedent, but also serves as a strong deterrence.
[1]CS(COMM) 684/2024
[2]2018 SCC OnLine Mad 1126
[3]2003 SCC Online Del 802.
[4]2024 SCC Online Del 719
[5]2009 SCC OnLine Del 3940