No Protection For Intermediary Under Sec 79 IT Act From Criminal Defamation Before 2009 Amendment : SC [Read Judgment]

The Supreme Court on Tuesday asked Google India to face trial in a criminal defamation case by rejecting its plea of immunity from liability as an internet intermediary.

The top court said that before the amendment made to Section 79 of the Information Technology Act in 2009,  a network service provider was protected only from liability under the IT Act. The protection did not extend to liabilities arising under other enactments, prior to 2009 amendment. 

On this reasoning, it was held that Google India could not claim immunity from liability for criminal defamation under Section 499 of the Indian Penal Code, in a complaint which arose before the 2009 amendment.

"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", the Court said.

The judgment was pronounced by a bench comprising Justices Ashok Bhushan and K M Joseph in the case Google India Private Ltd v Visakha Industries.

Visakha Industries, a company making asbestos sheets, had filed a criminal defamation complaint in 2009 against an individual for publishing articles against it in a group "Ban Asbestos" which was hosted in the Google Groups services provided by Google. Google India was also made a party in the defamation complaint on the ground that the group was hosted by it.

The complainant alleged that Google India failed to act on the notices served by it asking for take down of the articles hosted by it. Google was conspiring against the company with the author of the articles, alleged the complaint.

Google approached the High Court of Andhra Pradesh under Section 482 of the Code of Criminal Procedure seeking to quash the complaint saying it had no liability over the defamatory articles being an intermediary under Section 79 of the Information Technology Act. Google said that it was neither an author or a publisher of the blog.

But the High Court refused to quash the proceedings. The HC observed that if an intermediary failed to take action against an objectionable post despite being notified of it by the aggrieved person, it will be liable under IT Act.  The HC found that Google did not "move its little finger" despite the notice from the complainant. Therefore, it could not claim any exemption under Section 79 IT Act, the HC held.

In Google's appeal against the HC findings, the SC held that the matter had to be decided on the basis of Section 79 as it stood before the 2009 amendment, as the complaint was filed before the date of the amendment.

It may be noted that after the 2009 amendment, Section 79 expanded the protection for intermediaries. The amended section granted exemption from liability to intermediaries 'notwithstanding anything contained in any law for the time being in force'. This meant that the protection was available even for liabilities arising under laws other than the IT Act.

One of the exceptions for this protection was that if the intermediary had "actual knowledge" of the objectionable material, as per Section 79(3)(b). In the 2015 Shreya Singhal case, the SC read down 'actual knowledge' to mean an order from a court or a competent authority under law.

Anyhow, in the instant case, the SC held that Section 79(3)(b) and the interpretation given in Shreya Singhal judgment to the provision were not applicable, as the complaint arose before 2009 amendment.

"It is seen that the Magistrate has issued summons to the appellant vide Annexure P5 calling upon him to appear before the Court on 09.09.2009. If that be so, not only was the complaint filed at the time when Section 79, in its erstwhile avtar, was in force before the present provision was enforced, cognizance thereunder was also taken. If that be so, the question of exemption from liability may fall to be decided under Section 79 of the Act as it stood and not under the substituted provision", observed the judgment authored by Justice Joseph. 

Google India had raised another contention that it was not the intermediary as it was only a subsidiary of Google LLC. The SC did not adjudicate on this aspect and said it was a matter for trial.

The top court also set aside the findings made by the HC that Google India had failed to act despite receiving notice.
 

Case Details

Title : Google India Private Ltd v Visakha Industries and another.

Case No : Criminal Appeal No. 1987 of 2014

Judgment date : 10.12.2019

Coram               : Justices Ashok Bhushan and K M Joseph

Appearaences : Senior Advocate Sajan Poovayya (for Google), Advocate Sridhar Potaraju (for Visakha Industries), Additional Solicitor General Madhavi Divan for Union Government.

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