Disparagement vis-à-vis social media influencers: balancing free commercial speech with protecting consumer interest

The past decade has seen a massive rise in the role of social media influencers in society. Disparagement, originally a common law remedy meant to protect trademark holders from unfair disparagement of their products or mark, is now being used as a tool to suppress free speech on the internet. By looking at several cases in the light of the culture theory of trademark and the right to freedom of speech and expression, this article argues that courts need to exercise caution while deciding upon cases pertaining to disparagement. Trademark law ought to be used while keeping its consumer protection rationale in mind, balancing disparagement with consumer welfare and the right to freedom of speech and expression.