Regulating Commercial Free Speech

On August 25, 2025, the Supreme Court directed the Union government to frame guidelines for regulating social media, focusing on influencers commercialising free speech while safeguarding individual dignity.

Balancing Free Expression and Societal Interests

Supreme Court’s Directions

• Background: An intervention application was filed by a non-profit supporting Spinal Muscular Atrophy (SMA) patients, alleging that comedians on social media (Samay Raina, Vipul Goyal, Balraj Paramjeet Singh Ghai, Sonali Thakkar, Nishant Jagdish Tanwar) made derogatory comments about SMA patients.
• Court Observations:
  • Commercialising free speech should not offend vulnerable groups.
  • Regulations should be framed in consultation with the National Broadcasters and Digital Association (NBDA).
  • Guidelines should address evolving technological and communication challenges, not just react to individual incidents.
• Immediate Action: Comedians were ordered to issue public apologies on YouTube and other platforms.

Constitutional Framework on Free Speech

• Article 19(1)(a): Guarantees the right to freedom of speech and expression.
• Article 19(2): Permits restrictions only on eight grounds:
  • Sovereignty and integrity of India
  • Security of the state
  • Friendly relations with foreign states
  • Public order
  • Decency or morality
  • Contempt of court
  • Defamation
  • Incitement to offences
• Judicial Precedents:
  • Shreya Singhal v. Union of India (2015): Section 66A of IT Act struck down; “annoyance,” “insult,” or “hatred” cannot justify criminalisation of speech.
  • Kaushal Kishore v. State of UP (2023): Article 19(2) grounds are exhaustive; cannot be expanded.
  • Imran Pratapgadhi Case (2025): Speech causing discomfort remains protected if it does not violate Article 19(2).

Commercial Speech: Legal Evolution

• Hamdard Dawakhana v. Union of India (1959): Advertisements with trade purposes do not fall under free speech if primarily commercial.
• Tata Press v. MTNL (1995): Commercial speech that serves public interest, such as informing consumers, can be constitutionally protected.
• Suresh v. State of Tamil Nadu (1997): Commercial expression must balance societal interests; private commercial motives are not protected if harmful.
• Current Perspective: Distinction between commercial speech advancing public interest versus speech serving only private gain.

Social Media Regulation: Challenges

• Current Framework: IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, under IT Act, 2000.
• Obligations: Social media platforms must prevent obscene, pornographic, or harmful content; influencers are subject to ordinary criminal laws.
• Supreme Court’s Caution: Additional regulations must not impinge upon fundamental freedom of expression; must be carefully drafted.
• Polyvocality Issue: Differing judicial interpretations create “patchwork jurisprudence,” leaving discretionary power in judges’ hands (Gautam Bhatia).

Way Forward

• Guidelines Drafting:
  • Must involve stakeholders, including digital media experts, civil society, and broadcasters.
  • Focus on preventing commercial abuse of speech without curtailing genuine expression.
• Awareness and Ethics:
  • Social media influencers should be sensitised about vulnerable groups and ethical communication.
• Technology Measures:
  • Platforms may adopt AI-based content moderation, transparent grievance redressal, and user reporting mechanisms.
• Judicial Oversight:
  • Courts should ensure reasonableness under Article 19(2) and avoid arbitrary restrictions on free expression.