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Bombay HC orders removal of YouTube video reviewing Parachute coconut oil, says free speech not absolute

The Bombay High Court, in a judgement (see below) on January 15, directed a YouTube creator to takedown a video reviewing Parachute coconut oil, since “the fundamental right to freedom of speech and expression is not an unfettered right,” and “while it is absolutely necessary to maintain and preserve the freedom of speech and expression,” it is equally necessary to have some restrictions on this freedom “for the maintenance of social order in democracy”. This judgement came in a case where Marico Limited, an FMCG company which manufactures Parachute coconut oil had moved the court against YouTube creator Abhijeet Bhansali after he had uploaded a review of the company’s coconut oil on his YouTube channel called Bearded Chokra; Marico had argued that the video was “disparaging and denigrating” in nature and was a “targeted attack” at its product.

‘Free speech doesn’t mean maligning a product’: Justice SJ Kathawalla held that since the right to free speech has certain reasonable restrictions, it can not be “abused by any individual by maligning or disparaging the product of others as is done in the present case”. Marico had also sought an injunction to discourage Bhansali from creating similar videos in the future, however, Justice Kathawalla did not agree to that. With the advent of the internet and platforms like YouTube, reckless statements are being made in the “garb of free speech and expression,” Justice Kathawalla said, and added that reasonable restrictions to free speech are not being followed on such platforms “to make unfair gains on the basis of the views generated”.

How the case started: Bhansali had uploaded a video on his YouTube channel in September 2018, titled “Is Parachute Coconut Oil 100% Pure?,” and in January 2019, Marico sent him an email to cease and desist from publishing such videos and called for removing the video. In response, Bhansali proposed to modify or remove portions of the video, but refused to take down the video stating that he had a right to voice his opinion. He had also demonetised the video after receiving the email. Following this, Marico moved the High Court in February 2019, praying for: restraining Bhansali from publishing or communication or broadcasting the video further, stopping him from maligning Parachute coconut oil and for not infringing its registered trademarks.

Social media influencers should be ‘cautious’: The court held that in a dispute between two private parties, they cannot claim an unfettered right of freedom of speech and expression against the other. Even though Bhansali is an individual and not a competitor of Marico, he can not assert a fundamental right to abuse Marico’s product “by making false / malicious allegations against it to gain monetary benefit,” Justice Kathawalla said. The court further held that “social media influencers” such as Bhansali can not “deliver statements with the same impunity available to an ordinary person, ” given the “influence they wield over other audience”. Additionally, social media influencers “do have a responsibility to ensure what they are publishing is not harmful or offensive,” the court said.

How popular should a video be to impose reasonable restrictions on free speech? Bhansali’s YouTube channel has more than 100,000 subscribers at the time of writing this story, and Marico had alleged that the video in question had more than 100,000 views and 2,500 likes. Justice Kathwalla said that it would be “erroneous” to believe that a video with that kind of a reach would have no impact on audiences. Since a total of 2,897 people had reacted to the video, it means that more than 85% of the “voting segment” was convinced that the claims made by Bhansali in the video were true, he held.

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PepsiCo had also gotten 16,600 pieces of Facebook content removed: Facebook’s transparency report from May 2019 had revealed that 16,600 of the 17,713 pieces of content that Facebook removed in India between July and December 2018, in response to legal requests by India’s law enforcement agencies, courts, and the Ministry of Electronics and Information Technology (MeitY), were related to Pepsico.

  • In July 2018, MediaNama had reported that PepsiCo had obtained an interim order from the Delhi High Court to delete hundreds of posts on Facebook, Twitter, Instagram and YouTube. These posts, PepsiCo said in its petition, furthered the myth that its Kurkure corn puffs contained plastic. The civil defamation suit compiled years of posts on the social media platforms, demanding that they be taken down. In all, 3412 Facebook links, 20,244 Facebook posts, 242 YouTube videos, 6 Instagram links and 562 tweets were ordered removed.

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