Influencers can criticise brands based on facts: Delhi High Court

Social media influencers can make statements against consumer brands on social media platforms, provided they are backed by scientific evidence, the Delhi High Court ruled on Monday while dealing with a dispute between San Nutrition and influencer Arpit Mangal. .Justice Amit Bansal made the observation while rejecting San Nutrition's plea for an interim order to restrain four influencers from publishing negative reviews of its whey protein products.“It would be unreasonable to place restrictions on the freedom of speech and expression before the full trial takes place. Reasonable criticism, comment and parody is largely protected within the right to free speech under the Constitution ...The use of hyperbole and exaggerated forms of speech or parody would not entitle the plaintiff to grant of interim injunction ... Granting an interim injunction would result in putting fetters on their right to freedom of speech and expression and would also deprive the public at large of information on matters of health,” the Court ruled..San Nutrition Private Limited, a company engaged in selling nutritional supplements, had filed a suit to restrain social media influencer Arpit Mangal from making allegedly disparaging remarks about its products. The Delhi High Court was called to examine whether such critical commentary by influencers amounted to defamation, disparagement, or trademark infringement, and how far the right to free speech extends in such contexts.In an order passed on December 2, 2024, Justice Amit Bansal had framed the key legal question to be examined in this case, that is, the limits of freedom of speech under Article 19(1)(a) of the Constitution when read with the reasonable restrictions under Article 19(2), particularly when it came to remarks made by influencers about third-party goods and services.Given the constitutional significance, the Court invited Advocates Aditya Gupta and Varun Pathak, representing Google and Meta respectively, to file submissions as amici curiae. .The Court sought submissions on how to balance three competing rights — a brand’s reputational and economic interests, an individual’s freedom of speech, and the public’s right to receive information.The amici argued that cases like these typically involve three causes of action: (a) defamation, which concerns reputational interests; (b) disparagement, which concerns economic interests; and trademark infringement, which concerns statutory rights. It was submitted that while defenses such as truth and fair comment are available in defamation claims, allegations of malice could negate a defence of fair comment. In contrast, for disparagement, the burden lies on the plaintiff to prove that false and malicious statements caused economic harm..Court recognises Public Interest and Right to CritiqueJustice Bansal observed that influencer marketing plays a dual role—not just in promoting products but also in acting as watchdogs for consumer interests.The Court acknowledged that while the reputation of businesses deserves protection, this must be balanced against an influencer’s right to express opinions, particularly when backed by evidence."The essence of [the influencer's] videos is only to educate the consumers... The comments made by the defendant, in my prima facie view, forms an honest opinion based on sufficient factual basis," the Court noted, in this case.It was highlighted that three separate NABL-accredited labs - including Eurofins and Micro Tech Laboratory - had tested the product and found lower protein content than advertised. San Nutrition, on the other hand, failed to produce any counter-evidence..Use of Satire and Strong Language PermissibleOne of the influencers had referred to the brand as "Doctor Has No Choice" and described it as "ghatiya" (inferior). Rejecting San Nutrition’s objection to such remarks, the Court ruled:“The word ‘ghatiya’ would mean nothing more than ‘sub-standard’. Exaggeration or hyperbole does not amount to defamation per se.”The Court further held that satirical references, as used in the videos, are protected forms of expression."This Court in Greenpeace (supra) has also held that a satirical reference is permissible under the right to freedom of speech and expression enshrined under the Constitution," the judgment said. .No case for Trademark InfringementAddressing the trademark infringement claims, the Court ruled that referring to a brand for review purposes does not constitute infringement under Section 29 of the Trade Marks Act, 1999.“The defendants have not used the plaintiff’s marks in the course of trade but only to review the plaintiff’s goods,” the Court pointed out..Balance of Convenience favours Free SpeechJustice Bansal emphasised that granting an interim injunction would unjustifiably curtail free speech and deprive the public of information concerning health-related products."Granting an interim injunction would result in putting fetters on their right to freedom of speech and would deprive the public at large to receive information on matters of health," the Court said..Guidelines for Influencer ReviewsThe judgment establishes several important guidelines for social media influencers:1. Influencers can use brand names and show products when reviewing them without infringing trademark rights;2. Criticism based on verifiable test results provides a strong defense against defamation claims;3. Satirical references and exaggerated language are protected forms of expression..The Court proceeded to dismiss San Nutrition's plea for an interim injunction. .This case is part of a broader trend where brands are increasingly approaching courts to restrain social media influencers from making adverse remarks. Recent examples include Mondelez India’s defamation suit against influencer Revant Himatsingka (FoodPharmer) over comments on Bournvita, and an order restraining Scholars Den from calling edtech firm Physics Wallah "sasta wallah" in advertisements. Reckitt, which owns Dettol, had also recently sued certain social media influencers for making comments against its antiseptic liquid. .San Nutrition was represented by Senior Advocate J Sai Deepak and Advocates Kangan Roda, Abhishek R Tanishq Sharma and Chirantan Priyadarshan..Advocates Ramchandra Madan and Tushar Nigam appeared for the lead defendant, Arpit Mangal. .[Read Judgment]