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Delhi HC judgement on Comparative Advertisement

The Hon’ble High Court of Delhi, delivering a judgement on 17th February,2017 has held that comparative advertising, i.e., comparing own product with that of competitor’s and calling own superior / better than competitor‘s, would not amount to disparaging the goods/products of the other.

Dismissing suits by ‘hypersensitive’ shampoo manufacturers, Hon’ble Delhi High Court dismissed all three suits between Procter & Gamble Home Products Private Limited and Hindustan Unilever Ltd., claiming disparagement of goods of the plaintiff in the suit by the defendant in television commercials (TVC) of its goods and seeking relief of injunction and damages. The subject advertisement in each of the suit unquestionably compares the two products and though does not name the product of the other but, besides showing the sachet of the advertiser‘s own product.

After referring to various decisions, foreign and that of various high courts on the law of disparaging advertisement, the High Court while dismissing all the suits observed that “all the advertisements fall in the genre of comparative advertising, which permits comparing own product with that of competitor‘s and calling own superior / better than the competitor’s”. The only shackles which are placed therein are that there should be no likelihood of the consumer being misled as a result of the comparison and the advertisement does not unjustly disparage attack or harm the reputation of other products directly or by implication

In the interest of vigorous competition and public enlightenment, The Advertising Code of ASCI incorporated therein permits comparative advertising.

The right to protect own reputation, which is the origin of the law of defamation, is not to be misunderstood as right to be not spoken against or right to be not criticized for own shortcomings.

The High Court also observed that “The law of disparaging advertisement does not extend to preventing the competitor from poaching own consumer or to deprive the own consumer from experiencing the goods of the competitor

“Right to be Forgotten”

The Hon’ble Karnataka High Court delivering a landmark judgment in the case of Sri Vasunathan vs The Registrar on 23rd January, 2017 has accepted, applied and approved the ‘Right to be Forgotten’ in Indian context. The “right to be forgotten” or “the right to be erased” allows an person to demand for removal of his/her personal information or data online. The origin of this right can be traced back to the French jurisprudence on the ‘right to oblivion’ or droit à l’oubli.

The underlying principle behind “Right to be forgotten” was to allow offenders who had served their sentence to object to the publication of information regarding their crime and conviction in order to ease their process of social integration. In this age of Internet, access to information is quick and procuring personal information or past history of an individual has become much easier. Therefore, acknowledging this fact and the sensitive nature of case in hand, The Hon’ble Karnataka High Court, while delivering an order in a writ petition, directed its registry to make sure that an internet search made in the public domain would not reveal the woman’s name in a previous criminal order passed by the same High Court. The Karnataka High Court upheld a woman’s 'right to be forgotten', as her father’s writ petition stated that he did not want her name to appear on search engines in association with digital records of the high court of a previous criminal case.

The Court observed that “This is in line with the trend in western countries of the ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”

Acting upon the plea for recognition of her ‘right to be forgotten’, the high court directed to its registry: “It should be the endeavour of the registry to ensure that any internet search made in the public domain ought not to reflect the petitioner's daughter's name in the cause-title of the order or in the body of the order in the criminal petition.”

Currently, there are no legal provisions in India regarding the right to be forgotten, neither in the Information Technology (IT) Act 2000 (amended in 2008) or the IT Rules, 2011.

6 March 2017
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