The tussle between YouTuber Abhijeet Bhansali and Marico’s parachute oil doesn’t seem to be coming to an end yet. A Division Bench of the Bombay High Court consisting of Chief Justice Pradeep Nandrajog and Justice Bharati Dangre while hearing a commercial appeal filed by social media influencer Abhijeet Bhansali against the single Bench’s order passed on January 15 made certain observations as listed below.

  • The influencer had made a clear statement of the value premise and the normative framework helps to obtain a better and more truthful view of the author’s angle of perception, analysis and the moulds of thinking.
  • Where an objective analysis of words and expressions used is capable of being debated upon, the issue pertaining to defamation would have to charter a route in the context of freedom of speech vs reputation.
  • Where a person asserts a matter of fact, he cannot be restrained from expressing himself.
  • It was also noted that labelling a statement as an opinion does not automatically make it an opinion or make it safe from the possibility of it being defamatory and if a reader or listener could reasonably understand that the communication is stating a fact which can be verified, such communication is not treated as stating an opinion. A further distinction between simple and complex expression of opinion was made.
  • If the expression of an opinion is based on disclosed non-defamatory facts, an action is not supported, no matter how unreasonable or derogatory the opinion is. However, if the expression of opinion is based on undisclosed or implied facts, support of an action depends on the understanding of the statement. If the recipient reasonably believes the truth of an undisclosed or implied defamatory fact about the subject of the statement, the speaker is liable for making defamatory statement.
  • While the court admitted the respondent’s argument that puffing is justified, it also noted that the appellant is also entitled to call off the bluffing.
  • It was observed that the learned Single Judge had wrongly held that the appellant compared respondent’s product with an unknown product which was a virgin coconut oil and also stated that The learned Single Judge had overlooked the fact that even the respondent had claimed its oil to be virgin coconut oil.
  • The only error committed by the appellant as per the division bench was to refer to the exemplar oil as organic coconut oil because the reference was to virgin coconut oil, which was a trivial error and did not mislead the viewer.

The Interim Application was accordingly disposed of staying the operation of the impugned judgment dated 15th January 2020 and asked the YouTuber to modify certain portions of the video within a period of two weeks from the order dated 14th February.

We have covered extensively the order of the single bench here. The division bench’s order can be found here

The matter doesn’t seem to be over yet, and it is yet to be seen if the matter goes to Supreme Court. Well, if it does it would be a landmark judgment clarifying the extent to which YouTubers and social media influencers can exercise their right to freedom of speech and also as to what extent can a manufacturer protect its product under a claim for disparagement. 

Image source: here