Old Section 79 IT Act does not protect intermediaries from defamation action: SC in 2009 complaint against Google India

The Supreme Court has held that Section 79 of the Information Technology Act, as it stood before its amendment in 2009, did not protect intermediaries with regard to an offence of criminal defamation under Section 499/500 of the Indian Penal Code. The Bench of Justices KM Joseph and Ashok Bhushan held the same while hearing a petition filed by Google India seeking to quash an order passed by a Magistrate back in 2009 summoning it in a criminal defamation suit..In 2009, a complaint was filed by Visakha Industries – a company engaged in the business of manufacturing and selling asbestos cement sheets – against a group called Ban Asbestos India and Google India. It was contended that Ban Asbestos India published an article online that made some defamatory claims against the company. .Pursuant to the complaint, the XI ACM Magistrate at Secunderabad directed Google India to appear before it on September 9, 2009. The summoning order was challenged before the High Court of Judicature at Hyderabad, which dismissed Google India’s petition..While doing so, the High Court observed that Google India “did not move its little finger to block the material or to stop dissemination of the unlawful and objectionable material” even after the complainant issued a notice to it..Therefore, the High Court found that the appellant could not claim any exemption under Section 79 of the Act, either before or after its amendment..The old and new Section 79.Section 79, as it stands today, affords protection to intermediaries for any third party data hosted by them, subject to certain conditions. The protection can be availed if the role of the intermediary was limited to providing access to a communication system, and if it did not initiate the transmission of the same, select the receiver of the transmission, or modify the information contained in the transmission..Protection under Section 79 cannot be availed if it is found that the intermediary has conspired or abetted in the commission of an unlawful act, or if it fails to expeditiously remove or disable access to material controlled by it which is being used to commit an unlawful act, upon being notified by the government..Further, after the Supreme Court’s judgment in Shreya Singhal v. Union of India, Section 79 stands read down to mean that an intermediary would need to takedown information only upon receiving actual knowledge that a court order has been passed to remove or disable certain material and not otherwise. .However, since the present case was initiated before the 2009 amendment, the old Section 79 would apply, and an intermediary would have been liable for any third-party information or data made available by it..The case of Google India.The main question before the Supreme Court was whether Google India had made out a case for granting relief in proceedings under Section 482 of the Code of Criminal Procedure..It was argued before the Court that Google LLC – the parent company – and not Google India would be the intermediary in this case. It was further argued that as per the Google Groups terms of service, the originator of the content, and not Google, would be liable for the content that is uploaded..Senior Advocate Sajan Poovayya further argued that Google India had forwarded the notice sent by the complainant to its parent company, Google LLC. The parent company replied to the legal notice and requested the complainant to provide specific URLs. It is without responding to the same that the complaint came to be filed..Another argument made was that the intermediary and hosting service provider is not expected to monitor and pre-censor publication of content on its platform. It cannot be assumed that hosting of services involves the fact that the intermediary host has knowledge of the content posted on a hosting platform, Poovayya further contended. Thus, Google India cannot be named as the publisher of the allegedly defamatory articles..Moreover, it was claimed that the ingredients of an offence of criminal defamation under Section 500 was not made out. The jurisdiction of the Magistrate in Secunderabad to summon Google India was also challenged..Before the High Court, it was contended that under the law of the United States of America, which governed the functioning of Google LLC, it is not obliged to remove any allegedly defamatory content without a court order. .What the Supreme Court held.On Defamation.At the outset, the Court noted,.“We would not think that it would be appropriate, proper or legal for the court to accept the submission of the appellant that the post in question does not constitute defamation. As to whether it constitutes defamation and as to whether it falls in any of the Explanations/Exceptions, would be all matters to be decided by the court.”.A question that came up was whether refusing to take down content despite having the power to do so amounts to “publication”, a vital ingredient of Section 499. The Court relied on a UK decision to hold,.“If despite such power, and also, the ability to remove the matter, if the person does not respond, it would amount to publication. The said principle, in our view, would hold good even to determine whether there is publication under Section 499 of the IPC.”.The question of whether Google India was justified in not complying with the request, and consequently deemed responsible for the publication of the allegedly defamatory content, depends on whether it is held to be an intermediary, the Court noted. Both these questions cannot be entertained in the present proceedings under Section 482 CrPC, the Court further noted..Moreover, the mere publication would not constitute an offence under Section 499/500. Having made this observation, the Court refused to go into whether or not Google India was guilty of defamation..On Section 79.The Bench set aside the High Court’s finding that Google India could not claim any exemption under Section 79 of the Act, either before or after its amendment..“Section 79, as substituted, came to be read down to mean that it is not sufficient if a notice is given to delete a post to the intermediary. The applicant, who seeks a removal, must be armed with a court order. .In this case, there is no case for the complainant that when the removal was sought of the objectionable post, there was any decision of any competent court or that there was any directive of competent authority to remove the post. Therefore, in the light of Shreya Singhal (supra), the finding, clearly of the High Court, in this regard, appears to be unsustainable and we hold so.”.It was also noted that Section 79, as it originally stood, had nothing to do with offences under laws other than those contained in the IT Act. Therefore, .“In short, since defamation is an offence under Section 499 of the IPC, Section 79, as it stood before substitution, had nothing to do with freeing of the appellant from liability under the said provision.”.Having observed this, the Court found that there was a conspiracy between Google India and Ban Asbestos India (the first accused) in spreading the information..“…there is a definite case for the complainant that there was a conspiracy between the appellant and the first accused as it is alleged in the complaint that the accused, in connivance with each other, have disseminated the information with malafide intention.”.In this background, it was noted that even the amended Section 79 denies the benefit of the exemption in a case where there is a conspiracy between the intermediary or abetting or aiding or inducing or otherwise in the commission of the unlawful act. .Again, the Court held that this aspect cannot be considered in proceedings under Section 482..The Bench also dismissed Google India’s challenge to the jurisdiction of the Magistrate, holding, .“We noticed that this contention was not raised before the High Court. We further noticed that on this ground alone, in the facts of this case, after nearly a decade of the matter pending in this Court, it would be unjust to remand the matter back to the Magistrate, which we must indeed note, was one of the submissions of the appellant.”.The findings of the Court were summarised thus:.We reject the contention of the appellant that the High Court should have acted on the Google LLC conditions and found that the appellant is not the intermediary. We hold that this is a matter for trial. We hold that Section 79 of the Act, prior to its substitution, did not protect an intermediary in regard to the offence under Section 499/500 of the IPC.We set aside the findings by the High Court regarding the alleged refusal of the appellant to respond to the notice to remove. We make it clear, however, that it is for the Court to decide the matter on the basis of the materials placed before it, and taking into consideration, the observations contained in this judgment..The Court directed the Magistrate to proceed with the complaint, subject to its findings in the present appeal. Other contentions of the parties have been left open to argue..The complainant was represented by Advocate Sridhar Potaraju. Additional Solicitor General Madhavi Divan made submissions on behalf of the Centre..Read the Judgment: