New Delhi: The Calcutta High Court lifted an ex parte ad interim injunction that stopped the publication of a product-testing video about Emami’s Zandu Ashwagandha Gold Plus, stressing that courts must set a high bar before restricting speech in defamation cases.
An ex parte ad interim injunction is a temporary restraining order issued without hearing the accused.
A division bench of Justices Sabyasachi Bhattacharyya and Sandip Kumar De on Tuesday allowed the appeal against the trial court’s 3 May order restraining influencer and nutritionist Arpit Mangal from airing the impugned video or making statements concerning the product.
Applying the Bonnard principle, the court said a higher level of proof is needed before stopping allegedly defamatory speech, especially when the defendant has a possible defence of truth, justification or fair comment.
The court, however, did not adjudicate upon whether the product was unfit or whether the laboratory findings were conclusively correct, expressly clarifying that its observations on the merits were tentative and would not influence the trial court proceedings.
What the case is about
The appeal challenged a trial court order that, without hearing Mangal, stopped the publication of his video testing Emami’s Zandu Ashwagandha Gold Plus. Emami had filed the suit, alleging that the video disparaged and defamed its product.
The trial court had restrained Mangal and his company Trustified from displaying, airing or publishing or making statements concerning the product.
An aggrieved Mangal approached the Calcutta High Court in appeal, contending that the injunction operated as a gag order without first giving them an opportunity to establish their defences of truth, justification and fair comment. He invoked Article 19(1)(a) of the Constitution (the freedom of speech and expression) and, importantly, the Bonnard principle governing interim injunctions in defamation proceedings.
The video talked about the presence of lead and mercury in the product above the limits applicable under the Ayurvedic Pharmacopoeia of India (API). The product was tested for, among other things, ‘withanolide’ content and the presence of heavy metals like lead and mercury.
Emami contended that the mere detection of lead and mercury could not, by itself, establish that the product was unsafe or non-compliant and that their presence had to be assessed in the context of the product’s Ayurvedic composition and the standards applicable to herbo-metallic preparations.
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The Bonnard principle
The high court determined whether the competing factual and scientific issues were sufficiently arguable to prevent the imposition of a pre-trial restraint on speech and the applicability of the Bonnard principle. The principle requires courts to exercise exceptional caution before restraining allegedly defamatory speech prior to trial.
It explained that the Bonnard test demands a stricter standard of prima facie proof for granting an injunction in defamation cases. The ordinary requirement that a plaintiff establish a prima facie case is not sufficient, and the defendant seeking a pre-trial restraint must demonstrate that such a defence is effectively certain to fail at trial.
The court observed that even where the publication may prima facie appear defamatory, an injunction should not follow unless the defence of truth can be ruled out. Applying this standard, the bench found sufficient material supporting Mangal’s proposed defence and held that the trial court mechanically granted an injunction without adequately considering the constitutional implications of restraining speech in the larger public interest.
Merits of the case
On the question of the applicable API standards, the court noted that Emami described the product as an Ayurvedic proprietary medicine, a herbo-metallic preparation and also a formulation.
The court observed that these categories were not necessarily mutually exclusive. Therefore, where a product could fall within more than one category, there was no apparent reason to apply the permissible limits of only one category in preference to the others. This itself raised an arguable issue requiring fuller adjudication.
The court also considered Emami’s reliance on its valid drug licence. While acknowledging that a valid licence raised a presumption that the requirements necessary for approval as an Ayurvedic drug or medicine were satisfied, the court held that such a licence did not necessarily establish compliance with every other applicable API standard.
The court noted, however, that Emami’s expert material did not deny the quantities of lead and mercury relied upon by Mangal, but they were principally sought to explain the metal’s presence. The judges observed that it was not clear from those expert opinions on the neutralisation of the alleged harmful effects associated with excessive lead and mercury and these questions, therefore, remained matters that require evidence and adjudication .
The court also dealt with Emami’s reliance on the Advertising Standards Council of India (ASCI) influencer guidelines and the alleged breach of guidelines by Mangal.
It held that the disclosure requirements under those guidelines principally concern advertisements involving a “material connection” between an advertiser and an influencer. The impugned video had not prima facie been shown to be sponsored by Emami’s competitor or any advertiser. Mere solicitation of subscribers to a YouTube channel was insufficient to establish such a commercial connection.
The court also addressed the expressions used in the video, including “poison in a bottle” and “cancerous”. Rather than treating the expressions in isolation, the bench examined their context, observing that “poison in a bottle” was accompanied by question marks and was intended to stimulate inquiry regarding the alleged excessive presence of lead and mercury.
Similarly, the court considered the reference to carcinogenic risk as connected to Mangal’s attempt to warn consumers rather than merely demean the product for its own sake.
Accordingly, the court’s consideration of the merits was directed towards one central question: was Mangal’s defence of truth, fair comment and public-interest criticism so untenable that it could be ruled out even before trial? The court answered that question in the negative.
There was sufficient material to make the defence arguable and the scientific and factual controversies required fuller adjudication, it said.
Alfreza Ahmed is an alum of ThePrint School of Journalism, currently interning with ThePrint.
(Edited by Nardeep Singh Dahiya)
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