In defense of free speech and the ‘Bearded Chokra’

Over the last decade, after witnessing Shamnad getting sued for alleged defamation by a pharmaceutical company and Aparajita Lath getting a legal notice for alleged defamation from a leading media house (Shamnad’s brilliant response is over here), I have developed quite a fondness for the fundamental right to free speech and defendants in defamation cases filed by corporations. In this backdrop, I feel compelled to reply to Latha’s spirited defense of Marico’s legal strategy in its lawsuit against ‘Bearded Chokra’ a.k.a Abhijeet Bhansali, a YouTube ‘influencer’ who reviews products apart from offering all kinds of gyan to his 156,000 followers.

To briefly recap the fact, ‘Bearded Chokra’ reviewed Marico’s famed ‘Parachute Coconut Oil’, which is quite easily the company most recognized brand. If you were brought up in a South Indian household, as yours truly was, chances are your head was regularly doused with ‘Parachute’ in the hope of luscious hair growth that would compete with the Amazonian forests. As some of us have learnt the hard way, no amount of ‘Parachute Oil’ can undo centuries of bad hair genes.

The Bearded Chokra’s review can be viewed over here on YouTube. He presents a comparison of ‘Parachute Coconut Oil’ with organic coconut oil and concludes that the latter (Corrected after publication) is superior to the latter and recommends cold pressed coconut oil. He does on the basis of a scientific reasoning. Basically he argues that unlike cold pressed oil which is never heated more than 50 to 60 degrees Celsius, expeller pressed coconut oil is heated at around 100 degrees Celsius, leading to the loss of nutrients. Prima facie that makes sense. As a result of loss of nutrients, he argues that it is not suitable to use such oil on the hair or skin and at best it can be used for oil, if it is the edible version. Apart from the scientific criteria he also does chose some rather random criteria. For e.g. he conducts a comparison of the frozen version of the organic coconut oil and ‘Parachute Coconut Oil’, where only the latter allegedly showed impurities. In his defense he does not really mention the consequences of the impurities and the manner in which it ties into his larger argument of how cold-pressed oil is superior to expeller pressed coconut oil.

Over the last year, this particular video racked up 246,948 views and earned the appreciation of the ‘Bearded Chokra’s’ viewers with comments such as the following:

• “Bhai Shukriya bachpan se parachute coconut oil use karta that aaj se nai”; (sic)
• “Bro have you ever wondered how valuable you tuber yo are for us. You really have helped us a lot then any other youtuber(IMO). Love you man. I will also be sharing your this particular video to all my friends who always trolled me that all oils and products are the same but in reality it isn’t. Thanks for the time and video”; (sic)
• “I make coconut oil from the 11 coconut trees in my house plot the purest. Kerala”’ (sic)
• “Beard bhut buri hai yaar… Man naa kr rha dekhne kaa….jb buri hai to halki rakho na” (sic)
• “Yeh chokra kuch bhi fenk raha hai , mujhe Baal jhadne ki problem ho rahi Jo sirf 1 week mei band hui kyu parachute coconut oil ki wajah se, aur thode safed baalo ki problem thi woh dheere dheere Kam ho rahi hai, so don’t take this video too seriously. :)” (sic)
• “O really wtf u think u review things without hvng a propr qualification bro u r jst makin ur own test n tryin n foolin” (sic)

 For reasons that I still cannot fathom, the video got Marico so riled up that it hired one of the most expensive Senior Advocate’s and law firms in Bombay, to sue ‘Chokra’ before the Bombay High Court, leading to the Streisand effect, wherein more people went to view his video after reading in the news about Justice Kathawala’s injunction directing the removal of the impugned video. On appeal, a Division Bench of the High Court, headed by Chief Justice Nandrajog gave Marico a legal drubbing by setting aside the injunction issued by Justice Kathawala on the grounds of both factual and legal inaccuracies in the latter’s judgment.

When it comes to defamation or disparagement actions, the first test is to separate statements of fact from opinions. Now opinions, no matter how terribly rude, cannot form the legal basis of a defamation or disparagement lawsuit. For example, you could describe a product as absolutely disgusting compared to another because of your personal predilections – that is your opinion. However, if you were to state that a particular product has poison that could kill people on consumption, you are stating a fact. As pointed out by Chief Justice Nandrajog most of what is stated in ‘Chokra’s’ video was opinion and not fact. But according to him, even with regard to the one factual error in the video, it was too trivial to form the basis of a legal action.

Since Chief Justice Nandrajog’s judgment is entirely lacking in any reference to case law, it is necessary to take a step back and explain the evolution of defamation law in light of the fundamental right to free speech. The historical standard for defamation used to be quite low. Simply being able to prove that the facts stated were false, combined with some evidence that damage was caused because of the falsehood, was sufficient to prove defamation and the remedies would follow. The intent behind the utterance of the falsehood, even a genuine error on part of the person being sued for defamation, would make no difference to a finding of defamation.

That standard however changed as courts began to ‘constitutionalise’ the tort of defamation. Simply put, the courts recognized that for the fundamental right of free speech to actually have any meaning against the state, the standards for defamation action would have to be reversed in cases involving the state or any other public figure (that would include corporations). To establish defamation, in such cases, the burden would be on the public figure to establish that the person whom they were suing acted with “actual malice” i.e. the person acted recklessly, with full knowledge that their statement was false and with utter disregard for the truth. It is a high standard to meet and truth be told, it is rarely ever met. While this standard evolved in the United States, it has been adopted by the Supreme Court in the R. Rajagopal case and also by the Bombay High Court in a judgment by Justice Gautam Patel where he came down like a ton of bricks on the National Stock Exchange (NSE) for a defamation action against MoneyLife, a news portal. That disaster ended with NSE paying a sum of Rs. 50 lakhs to MoneyLife!

Going by the above standard, there is simply no way that Marico could ever establish that ‘Bearded Chokra’ acted with malice. Justice Kathawala’s order, against ‘Bearded Chokra’, while very detailed is incorrect on several counts. To begin with he appears to have not made the distinction between fact and opinion. If he had done so, he would have likely kicked out the lawsuit at the outset. Justice Kathawala then appears to have applied the ‘actual malice’ test incorrectly. Rather than ask Marico to establish that the ‘Bearded Chokra’ acted with actual malice (i.e with reckless disregard to the truth) he places a significant burden on the ‘Bearded Chokra’ to demonstrate that he did enough research to establish the veracity of his statement. He states in pertinent part the following: “In order to ascertain whether the statements made by Defendant were malicious or reckless, it is important to consider the research done and the caution exercised by the Defendant BEFORE making the Impugned Video.” This is an incorrect application of the “actual malice” standard. The burden should have been on Marico to demonstrate how these tests were a reckless disregard of the truth. At most, the ‘Bearded Chokra’ may have been guilty of hyperbole, but like puffery which is allowed, it is hardly ‘actual malice’.