Beware Social Media Influencers: Don't Say What You're Not Qualified To Say

In a recent judgment, the Delhi High Court ("Court") dealt with the emerging issue of social media influencers commenting on topics they are unqualified to discuss...
India Delhi Media, Telecoms, IT, Entertainment

In a recent judgment, the Delhi High Court ("Court") dealt with the emerging issue of social media influencers commenting on topics they are unqualified to discuss, particularly when such comments have the potential to harm a brand's reputation. The case of Zydus Wellness Products Limited v. Mr. Prashant Desai1, highlights the growing responsibility of influencers, emphasizing the need for them to refrain from commenting on subjects outside their expertise.

Background

The controversy arose when a social media influencer ("Influencer") posted a video on Instagram ("Video") in which he made several claims about COMPLAN, a product of Zydus Wellness Products Limited ("Zydus"). In the Video, the Influencer made statements advising parents not to give certain foods, including COMPLAN, to their children, claiming that these products contain excessive amounts of sugar. The statements made by the Influencer included:

  • "Don't give these 3 foods to your kids ever."
  • "No. 3, Bournvita, COMPLAN, Horlicks. Don't mix them in the milk in the morning for your kids."
  • "Two scoops contain 40-50 grams of sugar, that's 200% of your kid's daily requirement of sugar."
  • "Excess sugar causes glucose spikes, leading to hunger and crankiness, and encouraging snacking."
  • "Don't feed these to your kids, improve their health."

When Zydus requested that the Influencer remove the Video, they were met with silence. In response, Zydus served a legal notice, which the Influencer, rather than addressing, posted on his Instagram story along with additional content relating to the dispute. This led to the legal battle that culminated in the current judgment.

Role of Social Media Influencers

One of the core issues at play in this case is the role and responsibility of social media influencers. The Court was clear in its judgment that influencers cannot step into the shoes of professionals without appropriate qualifications. The Influencer, who had no formal training or expertise in nutrition, medicine, or health, nonetheless had made authoritative statements on the effects of consuming products like COMPLAN. The Court made it clear that the Influencer, merely by virtue of his social media presence, is not qualified to give nutritional advice. The judgment emphasized that social media influencers should not assume the authority of doctors, nutritionists, or other professionals when offering opinions on subjects outside their expertise.

Moreover, the Court underscored the potential harm that can come from influencers presenting themselves as experts. In today's digital world, influencers have an enormous reach, often commanding the attention of millions of followers. The Court noted that when an influencer makes unverified or inaccurate claims, it can cause significant harm, not only to companies like Zydus but also to consumer trust. In this case, the Influencer's statements about COMPLAN lacked factual backing, yet they had the potential to influence the purchasing decisions of thousands of parents who might take the Influencer's words at face value.

ASCI Guidelines

The Advertising Standards Council of India (ASCI) has released Guidelines for Influencer Advertising in Digital Media in India ("ASCI Guidelines")2 to regulate influencer marketing, particularly in sectors like health and nutrition. ASCI Guidelines require influencers to have relevant qualifications if they are advising on specialized topics such as diet or health. According to the ASCI Guidelines, influencers must be professionals such as doctors, dietitians, nutritionists, or psychologists when offering advice in these areas.

In this case, the Court noted that the Influencer did not have any such qualifications, and he was not a medical professional, nutritionist, or dietician, and had no formal connection to the health industry. His statements about COMPLAN's sugar content were unverified and unsubstantiated, therefore the statements were not only misleading, but also irresponsible.

COMPLAN's Market Reputation

The Court also took into account the established reputation of COMPLAN, a product that has been on the market for a long time. The Court pointed out that Zydus, has the necessary authorizations, approvals, and certifications from relevant authorities such as the Food Safety and Standards Authority of India (FSSAI). Over the years, Zydus has built a strong brand.

By publishing the Video, the Influencer was not only disparaging COMPLAN but also calling into question all the regulatory approvals that the product had received. The Court emphasized that this was a dangerous precedent, as influencers should not be allowed to question the legitimacy of products that have met stringent regulatory standards without presenting factual evidence.

Contents of the Video

The Court scrutinized the content of the Video, particularly its lack of factual basis. The Influencer opened his Video with a stark and negative statement, without providing any credible evidence to support his claims. The Court was critical of the fact that the Influencer did not cite any medical research or provide any expert opinions to substantiate his comments about the alleged sugar content in COMPLAN.

The language, tone, and tenor of the video further contributed to the Court's decision. The Court noted that the manner in which the Influencer spoke about COMPLAN was not only misleading but also hostile and malicious. The Influencer's refusal to take down the Video, even after receiving a legal notice from Zydus, further demonstrated his reckless approach to the issue.

Freedom of Speech and Expression

A central argument in the case was the Influencer's right to freedom of speech and expression, as guaranteed under Article 19 of the Constitution. However, the Court ruled that this right does not extend to making false or malicious statements that can harm the reputation of a business, especially when those statements lack any factual basis.

The Court clarified that while influencers have the right to express their opinions, they cannot misuse this right to malign products that have been approved by regulatory authorities. COMPLAN, a product authorized by the Government of India, had met all the necessary standards for health and safety. The Video, which misrepresented these facts, was not protected under the guise of free speech.

Disparagement

The Court examined the concept of disparagement, which involves making negative, false, or misleading statements about a product. In this case, the Influencer's comments about COMPLAN fell squarely within the definition of disparagement, as his statements were both untrue and harmful to the brand's reputation. The Court also noted that disparagement can lead to significant financial and reputational harm. In this instance, the Video, if allowed to remain online, would likely deter potential customers from purchasing COMPLAN, resulting in a loss of sales and damage to the brand's goodwill.

Court's Ruling

In its ruling, the Court sided with Zydus, concluding that the Influencer had made a series of false and unsubstantiated statements about COMPLAN. The Court ordered the Influencer to remove the video and prohibited him from publishing or uploading any content that could disparage COMPLAN or Zydus in the future.

This ruling has significant implications for social media influencers. It underscores the importance of responsible communication, especially when influencers are commenting on topics outside their expertise. The judgment serves as a reminder that influencers must be cautious about the content they share, ensuring that their statements are accurate and based on credible information. The decision also highlights the need for influencers to respect intellectual property rights. The Court noted that the Influencer's unauthorized use of COMPLAN's trademark and packaging in the video was a violation of trademark law, further compounding his legal troubles.

Footnotes

1. CS(COMM) 684/2024

2. https://www.ascionline.in/wp-content/uploads/2023/08/GUIDELINES-FOR-INFLUENCER-ADVERTISING-IN-DIGITAL-MEDIA.pdf

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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