WINFIELD STATES THAT:
"Defamation is the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of the right-thinking members of society generally or tends to make them shun or avoid him2"
According to the above, defamation clearly takes a broader aspect as it takes into account the two main forms of separate torts in respect to Defamation which isLibel and Slander. The former being generally more favourable to the claimant as it is actionable and the injury will be presumed. In cases of advertisements, the former is largely in effect.
In any case of libel or slander, there needs to be the following elements present3
1. The statement must be defamatory.
2. It must refer to the claimant, i.e. identify him.
3. It must be published, i.e. communicated to at least one person other than the claimant.
ADVERTISEMENT AND DEFAMATION
Advertisement by nature is a form of communication to a large public. It takes into account many means through which message can be reached out to public at large. Its desired result can be shown by the behaviour of the audience or a specified group. Its main objective is to promote a certain type of commodity and its usage, by doing so the driving force in the audience is created.
Advertisement and defamation per se deals with defamation as a tort which undermines the defendant's good/company or reputation in relation to an advertisement which is created. The competitive market takes help of advertisements to give an edge over the other goods. In this process, a particular company might defame the others, as to increase its own market value.
In Godrej Sara Lee Ltd. v. Reckitt Benckiser (I) Ltd. (2006)4 . Justice A Sikri. observed that,
"Development of law on the Comparative Advertisement in this country is a recent phenomenon though abundance of judgments of the courts in England and United States of America are available. Comparative advertising is advertisement where a party advertises his goods or services by comparing them with goods and services of another party. This is generally done by either projecting that the advertiser's product is of same or superior quality to that of the compared product or by denigrating the quality of the compared product. There is an underlying assumption that the comparative advertising benefits the consumer as the consumer comes to know of the two products and their comparative features/merits. New or unknown brands benefit most from comparative advertising because of the potential for transfer of the intangible values associated with the compared brand with or to the new brand. Comparative advertising has become more widespread, particularly in fiercely competitive markets."
In a recent Madras High Court case, wherein Justice Banumathi opined that "comparative advertisement at present involved a balancing of interests of advertisers in promoting their products on one hand and the interest of those who might be damaged by competitor's attacks on their products on the other5."
Moreover five principles which have acted as a reference for the future cases as well were laid down by the court to decide as to whether a party is entitled to an injunction or not, these are:
"(I) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.
(II) He can also say that my goods are better than his competitor's goods even though such statement is untrue.
(III) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors' he can even compare the advantages of his goods over the goods of others.
(IV) He, however, cannot while saying his goods are better than his competitors', say that his competitors' goods are bad. If he says so, he really slanders the goods off his competitors. In other words he defames his competitors and their goods, which is not permissible.
(V) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining repetition of such defamation.
In view of the above principles the judgement passed by S. Mahajan in the case of Reckitt & Colman of India Ltd. Vs. Kiwi T.T.K Ltd6. was,
"I have already held above that though a comparative advertisement is admissible, the same should not in any manner be intended to disparage or defame the product of the competitor. I am, in any case, not going into the question to what is the effect of the issue of other advertisements of the similar nature by the manufacturer of other products. Prima facie, I am of the opinion that after the removal of the red blob from the bottle of "Brand X", the same cannot be linked to the product of the plaintiff and consequently, in- my opinion, there will not be any question of disparaging, or defaming the product of the plaintiff In view of the foregoing, I modify the interim order passed on 2nd February, 1996 to the extent that I restrain the defendant from in any manner printing, circulating or distributing the point of sale posters at the consumer outlets or in the market place, where such goods are sold or in any manner publishing the impugned advertisement on the electronic media or at any other place with red blob on the bottle of "Brand X".
Hence the Defendants could continue the publication of this advertisement, only after the removal of the red blot on the bottle of "Brand X". This case and the principles it has laid down has been referred to in many such disputes regarding tortuous liability.
The above mentioned test for the comparative advertisement whether damaging the goodwill or brand of the other was recently discussed upon when the Samsung in its advertisement featured a comparison of its then recently launched Samsung Galaxy SIII and Apple I Phone 5. The Advertisement clearly showed the enhanced features of the Samsung Galaxy SIII when compared with Apple IPhone 5. It could have been presumed that the Samsung's intention was to show how the Galaxy SIII easily triumphs the Apple's I Phone 5. This also is a type of comparative advertising but however as the principles laid down in Reckitt and Colman of India Ltd. v. Kiwi T.T.K. Ltd. (1996) clearly state that this type of advertising and comparison is allowed to the limit that no defamation should be caused to the other party which can lead to damages in the business. In this advertisement similarly a detailed comparison is mentioned but the matter cannot be taken to the court since no defamatory comments have been made by the advertising company about the other good.
According to Section 499 of the Indian penal Code, 1860 provides that 'Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person'. The stated conduct of defamation comes with certain exception out of which the relevant for the advertisement could be 'It is not defemation to make an imputation on the character of the another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, for the public good.'
In various judicial precedents the advertisements are found to be permissible one which tend to enlighten the consumer, either by exposing the falsity or misleading nature of the claim made by the trade rival or by presenting a comparison of the merits (or demerits) of their respective products. Ultimately such advertisements are to be inferred in in the 'public good'. It is understood that the comparative advertising would benefit society because competitors are naturally better equipped to expose a rival's untrue claims which will benefit the consumer and the amount of this benefit to the consumer/society would outweigh the loss of business for the person affected.
While there is no doubt that the law in India with regard to comparative advertising is well settled, the question that still remains unanswered is whether it has been settled in the right manner? By liberally allowing puffing up in marketing strategies, so long as a competitor is not adversely affected, the courts have turned a blind eye towards the equally important consumer and his interests. The manner in which competitive advertising is panning out in the Indian sphere, the focus only seems directed towards the grabbing of eyeballs, without providing any productive information for the consumer to utilize. The objective behind comparative advertising was not only being informative and an important tool to promote competition but for comparisons to serve as benchmarks to help consumers focus on the product's main qualities. As a direct influence of the liberalization and globalization, the market economy of the comparative advertisement gave the base to the consumers to prefer and differ from their choices6 Which in turns can be thought upon in two ways, encouraging competition and discouraging competition but unless the interest of the consumer is secured in the manner that the consumer is able to get the best product at the best prices, all goes well.
1.Vth year student, Amity Law School, Lucknow
2.Winfield &Jolowicz on 'Tort, Sixteenth edition '2002. Pg. 418
3.Ratanlal & Dhirajlal, The Law of Torts, 2006 (New Delhi), 265
4.128 (2006) DLT 81
5. See Comparative ads Need to be Curtailed: HC, THE HINDU BUSINESS LINE, Dec. 15, 2005, http:// www.thehindubusinessline.com
7. See Keshav S. Dhadak and Vaishali Mittal, India: How to Gain from Comparative Advertising, http:/ /www.managingip.com/Article.aspx?ArticleID=1321496.
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