Regulating Commercial Free Speech

02.09.2025

Regulating Commercial Free Speech

Context

In August, 2025, the Supreme Court of India directed the Union government to frame guidelines for regulating social media, with a focus on commercialisation of free speech by influencers while safeguarding individual dignity and rights.

About the News

Background:
 A non-profit organisation supporting Spinal Muscular Atrophy (SMA) patients filed an intervention application alleging that comedians on social media (including Samay Raina, Vipul Goyal, Balraj Paramjeet Singh Ghai, Sonali Thakkar, and Nishant Jagdish Tanwar) made derogatory comments about SMA patients.

Court Observations:

• Commercialisation of speech must not harm or demean vulnerable groups
   
• Guidelines should be developed in consultation with the National Broadcasters and Digital Association (NBDA)
   
• Regulations must address technological and communication evolution, not just isolated incidents
   
• Immediate action: Comedians were instructed 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): Allows reasonable restrictions only on specific grounds:

1. Sovereignty and integrity of India
    
2. Security of the state
    
3. Friendly relations with foreign states
    
4. Public order
    
5. Decency or morality
    
6. Contempt of court
    
7. Defamation
    
8. Incitement to offences
    

Judicial Precedents:

• Shreya Singhal v. Union of India (2015): Section 66A struck down; annoyance or insult alone cannot criminalise speech
   
• Kaushal Kishore v. State of UP (2023): Article 19(2) grounds are exhaustive
   
• Imran Pratapgadhi Case (2025): Speech causing discomfort remains protected if Article 19(2) is not violated
   

Commercial Speech: Legal Evolution

• Hamdard Dawakhana v. Union of India (1959): Purely commercial advertisements are not protected under free speech
   
• Tata Press v. MTNL (1995): Commercial speech serving public interest may receive constitutional protection
   
• Suresh v. State of Tamil Nadu (1997): Commercial expression must balance private interests and societal welfare
   

Current Perspective:

• Distinguishes between speech advancing public interest versus speech serving only private gain
   

Challenges

• Current Framework: IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 under the IT Act, 2000
   
• Obligations: Platforms must prevent obscene, pornographic, or harmful content; influencers are subject to criminal laws
   
• Supreme Court Caution: Regulations must not infringe fundamental freedoms and should be carefully drafted
   
• Polyvocality Issue: Conflicting judicial interpretations create “patchwork jurisprudence”, leaving discretionary power with judges (Gautam Bhatia)
   

Way Forward

Guidelines Drafting:

• Include stakeholders, digital media experts, civil society, and broadcasters
   
• Prevent commercial abuse of speech while protecting genuine expression
   

Awareness and Ethics:

• Sensitise influencers about vulnerable groups and responsible communication
   

Technology Measures:

• Platforms can adopt AI-based content moderation, transparent grievance redressal, and user reporting mechanisms
   

Judicial Oversight:

• Courts must ensure regulations are reasonable under Article 19(2) and avoid arbitrary restrictions on free speech

Conclusion

The Supreme Court’s intervention emphasises the balance between protecting vulnerable groups and safeguarding free expression. Developing robust, consultative guidelines will ensure responsible social media use without curtailing constitutional rights.