The Delhi high court has directed the taking down of an allegedly disparaging video against nutritional drink Complan saying social media influencers cannot be reckless and comment on a subject they are not the "master" of.
Justice Saurabh Banerjee observed that Prashant Desai, who has about one million followers on Instagram and over 60,000 followers on Facebook, spoke on the "chemistry" behind Complan despite being "neither a doctor nor a nutritionist nor a dietician" nor anyone connected with the health industry, when Advertising Standards Council of India guidelines require a user to possess relevant qualifications to publish a health-related post.
The court also restrained the content creator from publishing any matter which denigrates the product and asked him to remove the existing video from all his social media handles within a period of two weeks.
In the video, Desai claimed that Complan, as well as certain other similar products, contain sugar in excess of the daily requirement in children.
Zydus Wellness Products Ltd, in its lawsuit, argued that the video made false as well as unsubstantiated claims and, therefore, sought directions to restrain Desai from infringing upon its trade mark and disparaging Complan and Complan Pista Badam.
Asserting that a social media influencer is entitled to take recourse to Article 19 of the Constitution if he has acted verily, cautiously and within the permissible precincts, the court noted that in the present case, the content creator identified and directly targeted Complan and asked the public to evade it, which cannot be permitted.
The court said a social media influencer is expected not to try to play the role of a professional without any backing to substantiate what is being shared by them.
"In the present scenario, even though the defendant is neither a competitor nor a qualified Doctor/ Nutritionist/ Dietician, however, he has openly named, identified and criticised the plaintiff's product 'COMPLAN' by starting the impugned video on a purely negative note by making unsubstantive and false statements therein.
"The contents/ statements therein are not backed by any substantive basis, even when they were uploaded and even as on date, therefore, the said contents/ statements made by the defendant therein are nothing short of being false, which is writ large," said the court on September 26 in the judgment passed on Zydus' plea seeking an interim relief.
"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. In fact, 'social media influencer' like the defendant is always expected not to cross over and try to play the role of a professional or try to fall in/ step into the shoes of a teacher or any other professional or act like a preacher, more so without any backing to substantiate what is being talked/ shared," the court stated.
Desai said he was a well-established social media influencer who created content relating to health and lifestyle, and maintained that his video reflected the truth. There were no falsities in relation to the product of the plaintiff, he added.
Besides being a qualified chartered accountant and certified management accountant, he has also obtained several certifications from different universities on the subject of nutrition and wellness, the court was told.
The court, in the order, said Zydus was an "age old company" which was selling Complan for a long time after obtaining requisite authorisations in accordance with the Food Safety and Standards Authority of India and other guidelines.
The defendant cannot be permitted to "identify" and unauthorisedly reproduce the plaintiff's product, it added.
"The defendant by uploading the impugned video is questioning all such authorisation(s), permission(s), approval(s), sanction(s) or like obtained by the plaintiff from the Government of India," it stated, while concluding that the video was "indeed damaging" and "malicious" .
"The defendant's unauthorised and dishonest use of the plaintiff's registered mark 'COMPLAN' in the impugned video, is/ are detrimental to, the distinctive reputation/ goodwill/ character of the plaintiff's trademark 'COMPLAN' and 'COMPLAN family marks', amounting to infringement," it stated.
The court further said the defendant ought to have been more careful while uploading the video, especially as he was naming the plaintiff's product.
"A 'social media influencer' like the defendant cannot express and/or advocate his ideas/opinions freely without any substantive basis and/ or backing and/ or is expected to be sensible, prudent, careful, cautious and pragmatic instead of being unwise and reckless, especially in today's age when media is a powerful tool having an influence over all humanity," the court said.
