Court holds Bonnard principle applies in India, says defamation injunctions must not curb public-interest speech unless defence of truth is bound to fail
The Calcutta High Court has set aside an ex parte ad interim injunction that had restrained social media influencers from publishing or airing a video alleging excessive lead and mercury content in Emami Limited’s Ayurvedic product, “Zandu Ashwagandha Gold Plus.”
A Division Bench comprising Justices Sabyasachi Bhattacharyya and Sandip Kumar De held that the trial court had mechanically passed a gag order without applying the stricter standard governing defamation cases. The Bench ruled that the Bonnard principle, which requires courts to refuse pre-trial injunctions unless the defence of truth or fair comment is bound to fail, is applicable in Indian law, especially after the Supreme Court’s ruling in Bloomberg Television Production Services India Pvt. Ltd. v. Zee Entertainment Enterprises Ltd.
The dispute arose after the appellants, Arpit Mangal and another, uploaded a video based on laboratory tests allegedly showing that the product contained lead and mercury beyond permissible limits. The respondents claimed the video was defamatory, misleading, and violative of ASCI influencer guidelines. They also argued that the product had a valid Ayurvedic drug licence and that the appellants were misapplying standards meant for food or other categories.
Rejecting the respondents’ objections at the interim stage, the High Court noted that the product had been admitted to be a “formulation,” making the standards under Part-II, Volume-II of the Ayurvedic Pharmacopeia of India relevant. The Bench observed that the existence of a valid drug licence does not by itself negate a prima facie defence of truth, particularly where laboratory reports indicate heavy metals beyond permissible limits.
The Court also held that the absence of brand name or batch number in the reports did not, by itself, invalidate them at the stage of an ex parte injunction. It said that whether the tested samples actually pertained to the plaintiff’s product was a matter for trial. The Bench further found that the ASCI influencer advertising guidelines were not attracted because the video was not shown to be an advertisement or sponsored content, and no material connection with any advertiser was established.
According to the Court, the expressions used in the video, including “poison in a bottle” and “cancerous,” had to be seen in context of the alleged laboratory findings and were aimed at alerting the public to possible health risks. The Bench said such speech was entitled to protection in public interest and could not be silenced through a pre-trial gag order unless the defence of truth was certain to fail.
The High Court therefore allowed the appeal, set aside the injunction passed by the trial court, and refused the plaintiff’s prayer for stay of the judgment, observing that a stay would revive the gag order and again suppress public access to information.
Bottom Line :
Defamation/Disparagement - Ex parte ad interim gag order against social media video on alleged excessive heavy metals in Ayurvedic product set aside - Bonnard principle held applicable in India in view of Bloomberg Television - In defamation matters, especially involving public interest speech, injunction ought not to be granted unless defence of truth/fair comment is bound to fail and impugned content is palpably false or malicious - Valid drug licence does not by itself defeat prima facie defence of truth where laboratory reports indicate heavy metals beyond permissible API limits for formulations.
Statutory provision(s): Article 19(1)(a) of the Constitution of India, Drugs and Cosmetics Act, 1940, Drugs Rules, 1945, Ayurvedic Pharmacopeia of India (API), ASCI Guidelines for Influencer Advertising in Digital Media
Arpit Mangal v. Emami Limited, (Calcutta)(DB) : Law Finder Doc id # 2983069
