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Critical Note On The Court Order: Defamation Suit Of Himalaya Wellness Corporation

Facts Of The Case:
The plaintiff, Himalaya Wellness Corporation sued Defendant No.1 (Dr. Cyriac Abby Philips) and Defendant No.2 (Twitter) for defamation for posting false and derogatory comments on Twitter causing economic damage to the Plaintiff affecting its reputation and growth by benefiting the competitor's products. The Karnataka Civil Court passed an ad-interim ex-parte injunction order against the defendant and suspended the defendant's Twitter account to stop causing further damage to the business and reputation of the plaintiff.

  1. Did the court have a necessity to hear the defendant's side against the allegations of defamation?
  2. Was there a need to order ad-interim ex-parte injunction?
  3. Was the ad-interim ex- parte injunction justified in this case?
DEFAMATION is a derogatory statement made to expose a natural or legal person to contempt or to injure him in business, reputation, profession etc. without lawful excuse.

LIBEL is a defamatory statement made in writing form without lawful excuse.

This is a,

REASONABLE RESTRICTION on freedom of speech and expression conferred by Article 19(2).[1]

TRUTH AND PRIVILEGE protect the freedom of speech and expression.

INJUNCTION is a court order restraining the continuance of a wrongful act of the defendant and the plaintiff should prove damage or apprehended damage to acquire an injunction.

EX-PARTE INJUNCTION is a remedy that is granted without notice to the opposing party. To get ex-parte injunction, the plaintiff must establish a prima facie case which the court should find substantial.

AD-INTERIM INJUNCTION is given as a remedy to prevent further damage to the plaintiff during the hearing of the case.

Before understanding the need for an ex-parte injunction and its justification of it, it is vital to analyse the alleged wrong and whether the ex-parte hearing was justified in this case. Firstly, the court did not specify the tweet made against the plaintiff and the defendant was known for his evidence-based modern medical practices and influence to combat medical misinformation. As a medically qualified professional, his tweets were not attacks on the personal or private character of the plaintiff but were directed against the business organisation.[2]

Several allegations complained as defamatory were made in the context of two principal objects:
  1. Prove that the plaintiff company's products were not scientifically safe.
  2. Create awareness among the public since the Liv-52, the plaintiff company's flagship medical product was commonly used by people.
"A man has a right to publish for giving information to the public which is proper for the public to know."[3]

In this case, qualified privilege comes into question where the person who makes a communication has a social or moral duty to the person who has a corresponding duty to receive it.[4] The defendant, being in the position of a medical professional in hepatology has fulfilled the conditions of having a moral duty to publish the information since the tweets were also related to Liv-52 which is a medical drug related to hepatology.

The corresponding duty is also fulfilled since the tweets were addressed to the public who uses the said drug. Considering the qualified privilege of the defendant, the court had a necessity to hear the defendant's side of the argument before passing the order.

The next question is about the need to order an ad-interim ex-parte injunction. Before moving into that, there are certain legal obligations placed upon pharma companies. The plaintiff company must adhere to the laws relating to the food standards in India relating to the establishment of science-based standards.[5]

The defendant through his tweets, questioned the scientific standards of the products of the plaintiff company where the scientific standards of a pharma product are high considering the nature of their use. Ad-interim ex-parte injunction calls for extra caution in the claim of remedy by the plaintiff and to prevent the continuation of damage to the plaintiff during the hearing of the case and this is decided upon the facts and circumstances of the case. Considering the nature of the case (public health) and with relevance to the above-mentioned arguments, the need for ordering an ad-interim ex-parte injunction was not met here let alone the justification of the said order.

The final issue is to analyse whether the order is justified. In the case of Admin v. Inamwell & Ors. (2021), the High Court of Uttarakhand delivered that the grant of ex-parte injunction is an exception and the rule is to issue the notice before passing the order.[6]

The SC laid down guidelines on ex-parte injunction orders in Morgan Stanley Mutual Fund v. Kartick Das. The court can give the said order if:
  1. A Prima facie case is established and considering the balance of convenience
  2. Irreparable damage will have ensued to the plaintiff
  3. The refusal of the grant of the order will result in greater injustice[7]

A Prima facie case is established in the case by the plaintiff by alleging loss of business and reputation but the other factors of irreparable damage and favouring balance of convenience are not satisfied. The defendant's merit in the case can be related to the qualified privilege and higher scientific standards required to be followed by the plaintiff considering the nature of their business.

The allegation of the defendant's act benefiting the competitors was not substantiated to be prima facie considered by the court since the defendant's act raised the question of the scientific validity of the products and in no way directly supported the products of the competitors. So, without hearing the opposing side, the claim of irreparable damage and greater harm resulting from the refusal of the grant are not justified by the plaintiff.

The court's order of granting an ad-interim ex-parte injunction order is not justified because the balance of convenience was not in favour of the plaintiff considering the alleged defamation against the defendant, the failure to hear the defendant's side to prove qualified privilege and the failure of the plaintiff to substantiate the allegations related to the said act of the defendant benefiting the plaintiff company's competitors.

--Opposing the court order--

  1. SEERVAI, Constitutional Law of India, 3rd edition, Vol. 1, p.495.
  2. Rustom K. Karanjia v. Krishnaraj M.D. Thacksersey, A.I.R 1970 Bom 424 (India).
  3. Cox v. Feeney, 176 E.R 445 (1862).
  4. Adam v. Ward AC 309 (1979).
  5. The Food Safety and Standards Act, 2006, No. 34, Acts of Parliament, 2006 (India).
  6. Admin v. Inamwell & Ors., Writ Petition No. 1494, 2021 (India).
  7. Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 S.C.C 225 (India).

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