This is a rejoinder to Prashant’s recent post, replying to my post on the order of the Division Bench (DB) of the Bombay High Court in the Marico disparagement case. My post was primarily to point out the factual errors committed by the DB in arriving at its conclusions – not on Marico’s legal strategy, as Prashant has stated in his post. Now that Prashant has raised the important point of free speech, let me express my views on that in the context of this case.
I too believe in free speech (like my late friend Shamnad) and I reiterate that Abhijeet Bhansali (Chokra), or anyone for that matter, is entitled to call a trader’s bluff. But one should not call another’s bluff based on falsehoods, lest calling the bluff becomes another bluff.
Prashant rightly says in his post that when it comes to defamation or disparagement actions, the first test is to separate statements of fact from opinions and, he refers to the DB’s observation that most of what is stated in Chokra’s video was opinion and not fact. He also notes that, with regard to “the one factual error” in the video, the DB found it too trivial to form the basis of a legal action. That “one factual error” is the comparison of two different products, which he projected to his viewers as if he is comparing the same product. I reproduce that part of the DB’s order below:
“The only error committed by the appellant is to refer to the exemplar oil as organic coconut oil because the reference is to virgin coconut oil, but this is a trivial error and does not mislead the viewer who would clearly understand that the signature tune of the presentation is that Parachute coconut oil is not extracted from fresh coconuts and that the expeller pressed process is used to extract the oil from Copra and due to this reason the oil gets heated and loses its nutrients thereby rendering it money ill spent for external application on the body or for garnishing.”
The “trivial error” committed by Chokra, which I believe is not so trivial, is as follows:
- First, I would like the readers to refer to my post of January 30, where I distinguished virgin coconut oil from regular coconut oil. To reiterate, ordinary coconut oil, whether or not organic, is yellowish in colour, whereas virgin coconut oil, an entirely different category of goods, is snow white in colour when frozen and clear when it is a liquid, whether or not organic;
- Chokra uses virgin coconut oil by referring to it as organic coconut oil to his viewers and conducts a self-certified freeze test for checking the quality of coconut oil by comparing it with Parachute’s ordinary coconut oil; and
- Based on the test results, he says Parachute’s oil has impurities because of its yellow colour as compared to the snow white colour of the virgin coconut oil.
So, taking Prashant’s analogy of making a statement regarding poison in a product being a fact, if Chokra is to state, based on the above test, that Parachute coconut oil has impurities in it because the test he conducted reveals yellow colour, is he still stating a fact or a falsehood? As far as I can see, it is a malicious falsehood and not a fact. I say this because he presented a falsehood to his viewers. In essence, the DB shut its eyes to the comparison of false equivalents, namely, organic coconut oil with virgin coconut oil. Going by the logic of the DB, even the spreading of fake news would be legitimised on account of free speech by deeming falsehoods to be “trivial”.
Talking about “actual malice” discussed by Prashant, let’s say Chokra actually applied his self-certified test for assessing the quality of coconut oil on Parachute coconut oil by comparing it with regular coconut oil. Upon freezing, both the oil samples would look yellow in such a case. Naturally, that result would deprive Chokra of offering wise comments to his viewers on the impurities in Parachute’s oil because the colour of both samples would be the same. To make himself credible, he had to use virgin coconut oil which gave a pure white colour, when frozen or clear look when in liquid form. This fact was revealed through the affidavit filed by him in the suit proceedings. If the videos showing self-proclaimed expertise in everything under the sun are his only source of livelihood, it is not difficult to understand the malice behind it and why he did what he did.