Influencers can criticise brands factually: Delhi HC

Comments by social media influencers against consumer brands, when backed by scientific evidence, does not amount to defamation, ruled the Delhi high court, in a significant decision that laid down the broad contours for the protection of social media influencers locked in legal battles with large companies.

Among these, the court allowed influencers to highlight and show brand names — one easy defence for big brands has been trademark infringement — and criticise brands on the basis of scientific tests without fear of defamation. It also allowed the use of satire and hyperbole, ruling these as accepted forms of free speech, which is protected.

The order, by a bench of justice Amit Bansal, came on an interim plea filed by Sans Nutrition Private Limited, a company engaged in business and sale of various nutraceutical and healthcare supplements, suing four influencers, Arpit Mangal, Kabir Grover, Manish Keshwani and Avijit Roy for defamation for publishing allegedly defamatory reviews of its whey protein products.

Acknowledging the dual role played by social media influencers — trendsetters for new products and also consumer watchdogs — justice Bansal said restraining them from making comments backed by truth, would not only impose “fetters on their right to freedom of speech and expression” but also deprive the public of information on matters of health.

“Since influencers shape consumer behaviour, their critique significantly impacts a brand’s reputation, which is why there is also an undeniable tension between business entities and the influencer community,” justice Bansal said in a 55-page verdict.

The petition, argued by senior advocate J Sai Deepak for the company, sought to restrain the influencers from publishing the reviews attempting to target, defame and disparage its products.

The defamation suit stemmed from the videos posted on Mangal’s YouTube channels reviewing the brand’s “Doctor’s Choice” products.

The court concluded that Mangal was able to establish the defence of truth and the video was based on test results obtained from laboratories.

Justice Bansal shot down Sans Nutrition’s justification (outsourced manufacturing) that the nutritional information given in the label of its products was based on information provided to it by the manufacturer of the said product and that Mangal had undertaken laboratory tests with malafide intent, to show its product in “bad light”. Sans Nutrition, justice Bansal said, could not disown the nutritional information.

“In my opinion, this justification is completely untenable. Even if the plaintiff’s products are manufactured by a third- party, any false claim therein, including the alleged false claim regarding the nutritional information on the product label, would be the plaintiff’s responsibility and the plaintiff would be accountable for the same, especially since the said products are offered and sold to the customers under the plaintiff’s marks,” the judge maintained.

The judge further held that Mangal’s comments were in “public interest”.

The ruling also defended Mangal’s reference to the brand as “ghatiya”, ruling that the term meant nothing more than “sub standard”/ “inferior” and that the company’s product were indeed sub standard according to the tests.

The court further also refused to pass any order with regards to the comments made by Grover, Keshwani and Roy, stating that the company failed to show that their defence that their comments were true and a fair comment was palpably false.