The fundamental right to commercial speech does not cover the dissemination of falsehoods or grant any licence to defame, disparage, or denigrate a competitor, the Delhi high court held, directing Patanjali Ayurved to take down in 72 hours its Chyawanprash commercial branding rival products as “dhokha (deception)”.
Patanjali told to take down its Chyawanprash ad in 72 hours
A bench of Justice Tejas Karia said an advertisement loses constitutional protection the moment it becomes false, misleading, unfair, or deceptive. It added that Patanjali’s Chyawanprash commercial crossed this line by conveying that all other manufacturers were deceiving consumers.
The 37-page order said that branding all competing Chyawanprash products as “dhoka” amounted to commercial disparagement. “A perusal of the impugned advertisement shows that the defendants [Patanjali] have tried to convey the message that all the manufacturers of Chyawanprash are deceiving their customers,” the court said in its order released on Tuesday. “If an advertisement crosses the permissible limits and becomes false, misleading, unfair, or deceptive, it ceases to enjoy the protection afforded by Article 19(1)(a) of the Constitution.”
The court said freedom of speech under Article 19(1)(a) of the Constitution does not extend to the dissemination of falsehoods or confer any right to defame, disparage, or denigrate a competitor. “As with all freedoms protected under Article 19 of the Constitution, the right to commercial speech is also subject to reasonable restrictions under Article 19(2) of the Constitution.”
The court delivered the verdict on consumer goods company Dabur’s plea to immediately restrain the broadcast of the Patanjali advertisement, arguing it was “per se defamatory and disparaging” as it painted all other makers in a negative light and labeled Chyawanprash, as a class of goods, as defective.
Senior Advocate Sandeep Sethi, representing Dabur, pointed out that his client held over 60% of the market share in the Chyawanprash segment. He added that the term used in the ad did not target a specific competitor, but tarnished the reputation of all manufacturers.
Patanjali defended the commercial. Senior advocate Rajiv Nayyar, who appeared for Patanjali, said that the advertisement did not refer to Dabur’s product directly or indirectly. He added that the intention behind using the word “dhokha” was to denote that his client’s product was a healthier alternative and had certain additional ingredients unavailable in other products.
Nayyar argued that commercial advertising was recognised and protected as a facet of the fundamental right to freedom of speech and expression. He added that the advertisement amounted to puffery or hyperbole.
Justice Karia rejected Nayar’s arguments. He said Patanjali’s ad had not directly referred to Dabur’s product, but the generic disparagement of all the products had the likelihood to cause harm to it, as the Chyawanprash market leader.
He said advertisers were free to exaggerate or highlight the virtues of their own products, but cannot malign or disparage an entire class of competing goods.
“Whereas it is open to exaggerate the claims relating to the goods or services and embellish their virtues or benefits, it is not open to denigrate or disparage the goods of others as a class in its entirety. There is no quarrel with the proposition that comparative advertising is permissible. “
The court said such a comparison cannot extend to disparaging a competitor’s product. “It is open to an advertiser to highlight that a particular aspect or quality of its product is superior to that of a rival, provided that the overall message of the advertisement is not misleading,” the court said. “Any factual claim or representation made in an advertisement must be not only accurate, but also free from the potential to mislead.”