Introduction
Social media has impacted all our lives, whether for good or worse will be a constant debate. ‘A Social Media Influencer’ can leave a significant impact on Humanity. If backed by reasons, it is no doubt for the betterment of Humanity but if baseless, it can significantly backfire’. This statement was highlighted by the Delhi High Court in the recent case of Zydus Wellness Products Limited v. Prashant Desai [CS (COMM) 687/2024], whereby the Court emphasized that the Social Media Influencers have the growing responsibility of refraining from commenting on subjects in which they lack expertise.
Background and brief facts of the case
The plaintiff, Zydus Wellness Products Limited, is one of the market leaders in food and nutritional products for brands including ‘COMPLAN’, ‘Nycil’, ‘Glucon-D’, ‘Sampriti’, etc. They adopted the trademark ‘COMPLAN’ in the year 1956 and have been using the same since the year 1994. The plaintiff obtained trademark registration for its product in Classes 5, 29, 30 and 32 and moreover, the plaintiff’s product has acquired significant goodwill and recognition.
The plaintiff came across the defendant’s video (who is a prominent Social Media Influencer) (‘impugned video’) on 9 April 2024, on Instagram, wherein as per the plaintiff, the defendant made disparaging, defamatory and derogatory statements with reference to the product sold under the plaintiff’s registered trademark, ‘COMPLAN’.
In the impugned video, the defendant suggested to parents not to give certain foods, including the plaintiff’s product ‘COMPLAN’ to their children, owing to the excessive amount of sugar in the said product.
The defendant explicitly used the following statements in the impugned video:
1. ‘Don’t give these 3 foods to your kids ever.’
2. ‘No. 3, Bournvita, COMPLAN, Horlicks. Don’t mix them in the milk in the morning for your kids.’
3. ‘Two scoops contain 40-50 grams of sugar, that’s 200% of your kid’s daily requirement of sugar.’
4. ‘Excess sugar causes glucose spikes, leading to hunger and crankiness, and encouraging snacking.’
5. ‘Don’t feed these to your kids, improve their health.’
Moreover, the defendant wrote the following caption for the impugned video:
‘These three foods are spoiling your kids’ health.
Bournvita, Complan, Horlicks- Two scoops contain 40 to 50 grams of sugar, which is 200% excess to your kids’ daily sugar requirement.
Excess sugar causes glucose spike, making them hungrier and crankier.
….
Avoid these foods can improve your kid’s health drastically and I highly recommend you to not give these to your kids. ‘
On becoming aware of the impugned video, the plaintiff on the same day, messaged the defendant on Instagram and LinkedIn and requested to remove the said video. On receiving no response from the defendant, the plaintiff was left with no other choice and issued a Legal Notice on 17 April 2024 asking the defendant to immediately take down the impugned video. However, two days after receiving the Legal Notice, on 19 April 2024, the defendant posted a snippet of the Legal Notice served upon him on a series of Instagram stories with interactive captions related to the impugned video. This led to the suit for trade mark disparagement.
Submissions of the plaintiff
The plaintiff highlighted that owing to the widespread reach of the defendant and the availability of the impugned video on a social media platform, the consumers can watch the video repeatedly, resulting in tarnishing the reputation and goodwill of the plaintiff. To support its contentions, the plaintiff placed reliance on Gillette India Limited v. Reckitt Benckiser [2018 SCC OnLine Mad 1126].
The plaintiff gave an account of the number of followers of the defendant on the social media platforms, comprising of about one million followers on Instagram and 60,000+ followers on Facebook. Accordingly, the plaintiff also highlighted that the impugned video has 3,49,02,025 views, 6,69,790 likes, 5,625 comments and 9,59,000 shares, highlighting the widespread reach of the defendant and the number of people being influenced by the false and misleading impugned video of the defendant.
The plaintiff also asserted that the defendant being a Social Media Influencer should have exercised more care and caution while posting the impugned video as he posed himself to be a self-declared Doctor/ Nutritionist/ Dietician, when the same is not the actual position.
According to the plaintiff, the defendant’s recommendation to completely avoid feeding the plaintiff’s product to children misleads the public into believing that the same is unhealthy and bad for children’s health, thus being disparaging and derogatory.
The plaintiff further relied upon the ‘Guidelines for Influencer Advertising in Digital Media in India’ released by the Advertising Standards Council of India (‘ASCI’), highlighting that health influencers like the defendant should have necessary medical qualifications and certificates to post information regarding health and nutrition. It was asserted that the defendant did not have the necessary medical qualifications and was in violation of the ASCI Guidelines and the Guidelines for Preventing of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.
The plaintiff submitted that the impugned video evidently fulfilled the trinity test, since it (i) was false, (ii) was made and published maliciously and (iii) resulted in causing special damage to the plaintiff[1].
In the impugned video, the defendant conveyed that the plaintiff’s product has 40g-50g of sugar i.e, 200% in excess of the daily sugar requirement for children, to which the plaintiff replied that, 100g of its product ‘COMPLAN PISTA BADAM’ contains 50.5g of sugar comprising of 26.8g of added sugar and 23.7g of naturally occurring sugar resulting in 16.665gms of sugar therein, moreover, even 2 heaped tablespoons of the plaintiff’s product contains 8.8gm of added sugar and not the amount alleged in the impugned video. The plaintiff contended that there is no recommended daily sugar allowance for children, but only of ‘added sugar’.
The plaintiff highlighted that the defendant specifically targeted the plaintiff’s products amongst other products that were mentioned in the impugned video. Moreover, the plaintiff submitted that the malafide intent of the defendant was also apparent from the subsequent conduct of posting a snippet of the Legal Notice and the series of stories with interactive captions on his Instagram profile related to the impugned video.
The plaintiff highlighted that the defendant’s freedom of speech and expression is not absolute, and that the defendant cannot be allowed to violate the rights and reputation of the plaintiff and its products.
Submissions of the defendant
The defendant took recourse to being a well-known social media influencer and content creator focusing on health and lifestyle, who discusses a plethora of items available in the market to draw attention to potential health risks associated with them. The defendant also asserted the qualification as a Chartered Accountant and a Certified Management Accountant, holding a Bachelor’s degree in Commerce, who later on found the inclination and motivation to study the subject related to health, fitness, and lifestyle, and has also obtained several certifications from different universities on ‘Nutrition Science’, ‘Exercise Physiology’ and ‘Health and Wellness: Designing a Sustainable Nutrition Plan’ and at present is also pursuing various courses encompassing the same.
The defendant submitted that the ASCI Guidelines are merely guiding principles and not mandatory to be followed as they do not impose any mandatory obligation to be followed, and therefore, any decision pronounced solely on the basis of the same cannot be considered to be obligatory and rather discretionary. [2]
The defendant highlighted that in order to satisfy a case for disparagement the ingredients including (i) false statements, (ii) statements with malice and (iii) damage suffered by the plaintiff have to be satisfied[3], and as per the defendant, the plaintiff in this present case failed to satisfy any of these three ingredients.
The defendant additionally claimed to have spoken the truth in the impugned video and moreover, alleged the plaintiff to have wrongly analysed the amount of sugar in its product and only calculated the ‘added sugar’ therein.
The defendant submitted that the impugned video was not directed towards the plaintiff’s product but also directed towards biscuits, cookies and cereals, and has solely been made with the intent to educate the viewers without any intent to injure the plaintiff’s product.
Lastly, the defendant submitted that the statements made in the impugned video are protected under Article 19(1)(a) of the Constitution of India that guarantees freedom of speech as long as the information disseminated online does not fall within the grounds mentioned in Article 19 (2) of the Constitution of India. The defendant claimed that the impugned video is an informative video.[4]
Analysis and decision
The Court analysed that the plaintiff has been in the industry since 1956 is not a fly-by-night operator, whereas on the other hand the defendant admittedly is neither a doctor, a Nutritionist nor a Dietician and certainly not connected with the Health Industry in any manner whatsoever. The Court was of the view that merely being a Social Media Influencer, the defendant is not bestowed with the independence to speak and/ or comment about a subject of which he is not the master. The Court noted that the comments made by the defendant in the impugned video were not backed by any proof and lack accuracy and therefore, cannot be treated as genuine. The Court was cognizant of the fact that a Social Media Influencer like the defendant cannot openly express ideas or opinions without any sensible backing owing to the powerful influence that such a person has over individuals.
As per the ASCI Guidelines, a Social Media Influencer is required to have relevant medical qualifications for posting related to health and nutrition and the defendant did not comply with this requirement.
The Court was of the view that owing to the long-standing reputation of the plaintiff and the product offered by it, the plaintiff has procured the required permissions from the Statutory Authority and is in accordance with the guidelines laid down by the Food Safety and Statutory Authority of India. Accordingly, by uploading the impugned video the defendant is also questioning the veracity of the relevant authority.
The Court further carefully examined the video's substance, noting in particular that it lacked a factual foundation. The defendant's comments regarding the claimed sugar content of plaintiff’s products were critically analyzed by the Court since the defendant did not present any expert opinions or provide any medical studies to support the claims. The Court's ruling was also influenced by the language, tone, and tenor of the impugned video. The defendant’s comments regarding COMPLAN were deemed by the Court to be aggressive, malicious, and deceptive. The defendant's careless handling of the situation was further evidenced by his failure to remove the impugned video even after plaintiff sent him a legal notice.
Additionally, owing to the number of followers that the defendant has on Instagram and Facebook and the possibility of an increase in number of views, ‘likes’, and comments in due course, the Court also analyzed the overall impact and effect, the impugned video would have on the public. The Court highlighted that if the impugned video is allowed to be over the internet, it will have a lasting negative impact on the minds of the public resulting in a deterrent to buying the plaintiff’s product.
The Court also clarified that Article 19 of the Constitution of India, is subject to reasonable restrictions imposed by the State and only grants protection to the opinion that is not slanderous, defaming, etc. In the present case the defendant cannot rely upon Article 19 of the Constitution of India for belittling the plaintiff’s product, that has been recognized and authorized by the Government of India and allowing the defendant to do so will be against the permissions procured by the plaintiff from the Statutory Authority and guidelines followed by the plaintiff in accordance with the Food Safety and Statutory Authority of India.
The Court held that the defense set up by the defendant lacks credibility and that the plaintiff has successfully been able to make out a case of Disparagement.
The Court held that the defendant’s impugned video amounts to infringement under Section 29 (8) of the Trade Marks Act, 1999, and moreover, the defendant has unauthorizedly and entirely reproduced the label and packaging of the plaintiff’s product, that does not fall within any exceptions.
The Court’s ruling came in favor of the plaintiff and against the defendant, restraining the defendant from publishing, uploading or making available the view of the impugned video or any part of it in any language, not limited to the electronic media as the actions of the defendant in the impugned video and subsequent amount to disparagement of the plaintiff’s registered trademark. Further, the defendant was directed to take down the impugned video from all his social media handles within the period of two weeks from the order.
The defendant challenged the instant order of the Single Judge, by way of an appeal[5], before the Division Bench of the Delhi High Court. The Bench, by order dated 9 October 2024, issued notice of the appeal and the application seeking stay on the Single Judge’s order to the plaintiff and has renotified the matter for further consideration on 10 December 2024. On ad-interim directions in the application for stay, the defendant asserted that being a public-spirited citizen, the intent was to educate the masses regarding the ill-effects of products like Horlicks, COMPLAN and others, thus was not motivated by malice. The Bench was, however, not inclined to pass any ad-interim orders in favour of the defendant. The Bench noted that gratuitous education of the masses has to stop short of disparagement.
Conclusion
Social Media Influencers often have vast audiences and wield significant influence over public opinion, especially amongst younger, impressionable followers. With this influence comes a greater responsibility to share accurate and informed opinions. This decision highlights the importance of Social Media Influencers to avoid commenting on topics outside the realm of their expertise. The information disseminated by them should be backed by proof or material substantiation. Influencers are also cautioned by the ruling to ensure that their content is verified and supported by credible sources, and that they exercise due care and caution when sharing their views or opinions.
[The first and second authors are Associates while the third author is a Partner in IPR practice at Lakshmikumaran & Sridharan Attorneys]
[1] Pepsi Co. Inc. and Ors v. Hindustan Coca Cola Ltd. and Anr., 2003 SCC Online Del 802
[2] Century Plyboards (India) Ltd. v. Advertising Standards Council of India, 1999 SCC OnLine Bom 444; Teleshop Teleshopping v. Advertising Standards Council of India, 2015 SCC OnLine Bom 8777 and Dish TV India Limited v. The Advertising Standards Council of India, 2016 SCC OnLine Del 6715.
[3] Dabur India Limited v. Colortek Meghalaya Pvt. Ltd., 2009 SCC OnLine Del 3940 and Hindustan Unilever Limited v. Cavincare Private Ltd., (2010) 44 PTC 270 (Del).
[4] Shreya Singhal v. Union of India, (2015) 5 SCC 1
[5] FAO(OS) COMM 231/2024
