Influencer Speech v. Brand Protection: Legal Boundaries of Product Criticism

Social media has grown into a powerful commercial space, where influencers shape public choices. While focus of courts has previously been on curbing misinformation and cyber-crimes, a new aspect concerning consumer manipulation has come up in recent times.

Influencers have been routinely seen criticising products or services. When doing so, such influencers may expose themselves to liabilities towards defamation, disparagement, or trademark infringement. They key question being: When does content become legally actionable?

In Zydus Wellness Products Ltd. v. Prashant Desai, the Delhi High Court addressed influencer liability when Prashant Desai criticized ‘Complan’ in an Instagram video, alleging excessive sugar amongst potential health risks. The Court granted an interim injunction, noting that Desai lacked credible qualifications and evidence, and that his unverified claims were harming Zydus Wellness’s reputation and business, thus amounting to trademark infringement and disparagement.

The Court observed that Desai could only be entitled to take recourse to Article 19 of the Constitution, “if he would have acted verily, cautiously, carefully and within the permissible precincts and not otherwise.”

Similarly, in another case of Dabur India Ltd. v. Dhruv Rathee, the Calcutta High Court observed that while “Dissemination of information through any medium or platform is a modern-day reality, the only caution which a defendant in such cases ought to bear in mind is whether the publication falls within the four corners of the law or not. In such circumstances, what has to be balanced is the right of the consumer to be made aware vis-a-vis the right of any manufacturer not to be ridiculed.”

The larger dispute in the said matter involved trademark infringement and disparagement, as Dhruv Rathee, despite blurring, used identifiable 'Real' juice branding in a video warning against packaged juices. The Court also observed that ‘Real’ was “specifically targeted, denigrated and discredited in the impugned video”. The Court held the impugned video to be in contravention of the provision of section 29(9) of the Trademarks Act, 1999.

Interestingly, the Court observed that “even though the underlying intent of the impugned video may not be objectionable, in making repeated direct and brazen references to the product Real of the petitioner, the Lakshamanrekha or the Rubicon has been crossed.”

Following a similar line of reasoning, the Delhi High Court in both Bright Lifecare (P) Ltd. v. Rahul Rana 2024 SCC OnLine Del 8463 as well as in Mondelez India Foods Pvt. Ltd. v. Revant Hematsingka, granted ex-parte ad interim injunction against the influencers restraining them from uploading any publication disparaging the registered marks of the companies, as both matters involved videos that made factual assertions about the composition or impact of their products.

Thus, what emerges from these decisions is a judicial caution against content that, at the interim stage, appears to make serious assertions, particularly where identifiable brands are involved.

In contrast to the precedents above, the Delhi High Court in San Nutrition (P) Ltd. v. Arpit Mangal and Others, refused to grant injunction when the defendants therein published videos and posts claiming that San Nutrition’s whey protein had lower-than-advertised protein content.

The influencers in the above case had used San Nutrition’s registered marks to identify the product under review, which the Court held to be incidental for fair comment, a common-law defence in defamation cases that protects individuals when expressing opinions or commentary on matters of public interest.

The Court was of the opinion that the influencers had relied on multiple laboratory tests and factual data, which made their statements prima facie fair comment rather than mere disparagement or defamation

The Court held that,

“It is a settled position in law that any commercial speech would amount to disparagement only when all the three ingredients of (i) untrue and misleading statement, (ii) malice on the part of the defendant and (iii) special damage to the plaintiff are established.”

While at a prime facie stage, San Nutrition was unable to establish malice or any specific intent to cause harm, the influencers were able to establish a bona fide defence based on “truth” and “fair comment,” both of which are well-recognised legal exceptions to liability in such contexts. The Court further held that San Nutrition was also prima facie unable to show any infringement of their trademark.

As such, the judgment in San Nutrition’s case introduces a nuanced distinction compared to the other judgements discussed above, as it protects the interests of influencers in fulfilling their roles as content creators. This is of significance as it clarifies that influencers or content creators aren't liable for negative opinions or criticism, if such opinions are rooted in verifiable and objective facts.

It appears that the judiciary, while clamping down on unverified and damaging content, also recognises the value of fact-based commentary by such influencers. This equilibrium is essential in ensuring that influencers uphold their responsibilities and simultaneously are not muzzled from providing consumer insights.

This evolving jurisprudence reflects an effort to balance corporate reputation, consumer awareness, and free speech thereby ensuring that constructive criticism is not stifled under the guise of legal liability.

About the authors: Aditya Ganju is a Partner and Sahil Safdar is an Associate at AG Chambers.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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