India’s courts have always upheld the importance of free speech in their observations and judgments. This is heartening, given that a democracy cannot function when free speech — it functions under reasonable restraints — is stifled. Only a serious transgression could have led the Supreme Court to say that online shows by influencers and YouTubers cannot claim immunity on grounds of free speech. The transgression, as it turns out in the given case, is serious and crude: people with disabilities were ridiculed by as many as five influencers and YouTubers who, after having apologised to the apex court, have now been asked to tender apologies on their respective channels. That some members of this burgeoning digital community often prefer coarseness over civility to grab attention is indisputable. The court, quite rightly, wants to nip the contagion in the bud, lest other vulnerable social groups — women and the elderly, for instance — become targets of such insensitivity. This kind of thoughtlessness must be identified as an area of concern given the fact that the market for influencers in India is set to be worth Rs 3,375 crore by the end of next year. The need for the framing of some guidelines, therefore, cannot be denied. The apex court has also agreed to such an intervention but it has taken care to argue that the institution of a regulatory edifice must not be contingent upon infractions by a handful of influencers; it must, instead, be broad-based.
In the wise court’s opinion, the principle of immunity that is associated with free speech is not operable in instances wherein speech falls within the sphere of commercial speech or a prohibitive category. Influencers, the court added, commercialise speech. This association of the verbal content of influencers and its presumed commercial underpinnings perhaps requires greater deliberation, if not clarity. The lack of clarity could not only make fuzzy the rationale that prompted the court’s observation in this given context but also introduce avoidable grey areas in the understanding of what constitutes, or does not constitute, commercial speech. The other issue relates to stipulations, especially those framed by the State, in the online sphere. The line between oversight and censorship must hold. In other words, the crossing of the line of sensitivity by a few rogue influencers and YouTubers must not give the powers that be the licence to gag the entire fraternity.