New Delhi: Do you look to your favourite social media influencer’s review before buying that lipstick or putting that protein supplement in your cart to kickstart your New Year’s fitness resolution?
All that might change because the Delhi high court is set to weigh in on the restrictions on what social media influencers can say online about consumer brands on social media platforms. The court will examine the boundaries of free speech that may apply to such influencers.
At the centre of the dispute are a whey protein brand and four popular social media influencers who are set to flex their muscles in the high court in a case that could influence the entire influencer industry, estimated to touch Rs 5,500 crore in 2024.
It all began in May this year when San Nutrition, a company that makes an isolate whey protein called DC Doctor’s Choice ISO PRO, dragged four social media influencers to court, alleging that they were disparaging its protein.
The four influencers are Arpit Mangal of the All About Nutrition YouTube channel, Kabir Grover of the HealthByKilo YouTube channel, and Manish Keshwani and Avijit Roy of the COREFITLAB YouTube channel.
The company says its products are designed by international researchers, keeping the needs of athletes, fitness enthusiasts and gym-goers in mind.
However, the influencers had made videos alleging, among other things, that its whey protein was misleadingly labelled and its actual protein and carbohydrate content differed from what was stated on the label.
On 2 December, Justice Amit Bansal passed an order saying he would look into the limits that could be placed on social media influencers on what they may say about other companies’ goods and services.
“What are the limits of the freedom of speech and expression under Article 19(1)(a) read in light of Article 19(2) of the Constitution of India concerning allegedly disparaging comments/remarks made by a social media influencer in respect of third-party goods/services?” is the question that Justice Amit Bansal framed in his order.
Article 19(1)(a) guarantees the right to freedom of speech and expression to all citizens, including the media, while Article 19(2) allows for restrictions on the right to freedom of speech and expression in the interest of, among other things, the sovereignty of India, decency or morality, contempt of court and defamation.
The next court hearing on the matter is set for 16 December.
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A not-so-sweet surprise
This isn’t the first such case brought against an influencer.
Health influencer Revant Himatsingka—who goes by FoodPharmer on social media—was in for a not-so-sweet surprise when the Delhi HC asked him to stop disparaging Bournvita in October this year.
Last year, leading confectionery company Mondelez—which owns top brands Cadbury, Bournvita, Oreo and Tang—had dragged Himatsingka to court, alleging that he had made over 150 posts and videos targeting Bournvita and Tang for its sugar content.
In one video, Himatsingka even suggested that the company should consider changing its tagline from ‘taiyari jeet ki’ to ‘taiyari diabetes ki’.
The HC passed an interim order restraining the influencer from posting videos or posts disparaging the company’s products. According to news reports, the high court later clarified that Himatsingka could continue making factual statements about the company’s products.
Similarly, in May last year, the high court passed another interim order directing three influencers—Avijit Roy, Kabir Grover and Satvik Pandey—to take down videos in which they claimed the protein made by BigMuscles Nutrition was unsafe for human consumption.
In September last year, the court barred the three influencers from posting videos on the case on their YouTube channels, saying they could not “conduct a media trial”.
What next?
So far, courts have only restrained influencers or are hearing cases against influencers based on the facts of specific suits.
However, the DC Doctor’s Choice ISO PRO case has widened the scope of the debate. Its arguments and orders may have repercussions on what influencers can or cannot say about the products and services of other companies.
For instance, Zydus Wellness Products dragged influencer Prashant Desai to the Delhi HC earlier this year. Desai had made a video alleging that its product, Complan, and other similar products, contained sugar levels that exceeded the recommended daily intake for children.
In September this year, the court rapped Desai for commenting on a subject outside his expertise. It said Desai, who has about one million followers on Instagram, spoke on the “chemistry” behind Complan despite not being a doctor, nutritionist or dietician.
The court added that Desai could not claim protection under the right to freedom of speech and expression when making negative remarks about Zydus’s product or attacking Complan merely because he was a social media influencer.
It asserted that he “cannot be allowed to openly belittle, malign or vilify the plaintiff’s product ‘COMPLAN’ about something which has been recognised/authorised by the Government of India”.
The court then directed the video be taken down from all of Desai’s social media platforms. However, these observations were focused on the facts of the case before the court.
After focusing on specific cases, the court is now set to go beyond and look at the wider limits on allegedly disparaging social media posts.
(Edited by Sugita Katyal)
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