IN THE SUPREME COURT OF INDIA
AIR 2020 SC 350
Google India Private Limited
M/S Visaka Industries Limited and Ors.
Date of Judgement
10 December 2019
Dipak Misra, C.J.I.; M. Khanwilkar; D.Y. Chandrachud, JJ.
Information Technology Act, 2000 – Section 79
Facts of the case
The complaint made by Complainant alleging that Accused No. 1’s statement in the articles in the group hosted by the Accused No. 2 was filled with hatred towards Complainant which was defamatory in nature, and which a person of ordinary intelligence in society would believe the said statements. Indeed, the said statement injured the reputation of Complainant. The act of the Accused in posting certain defamatory articles in the cyber space, which is visited by innumerable internet surfers which had vide usage all over the world in who’s mind the complainant company was being caused with such defamatory false statements. The Appellant came to be summoned by the Magistrate pursuant to the complaint which seeks to invoke Sections 120B, 500 and 501 read with Section 34 of the Indian Penal Code, 1860 (Code). The Appellant filed petition before the High Court to quash order passed by Magistrate summoning Appellant for offences punishable under Sections 120B, 500 and 501 read with Section 34 of Code. The High Court dismissed the petition.
The key issues before the Hon’ble SC were:
1. Whether Google India was the relevant intermediary, since the control over the Groups feature was with Google Inc., a U.S. corporation which had not been impleaded.
2. Whether Google could avail of intermediary safe harbour for defamation under Section 79 of the IT Act.
3. Whether Google could in any event be foisted with liability for criminal defamation, as an aggregator or host of an online service.
Decision of the SC
The Hon’ble SC, with respect to the first issue held that the court could not interfere because the question of control and the relationship between Google India and Google Inc., for the purposes of determining the actual responsible party under criminal proceedings was a disputed fact which could not be adjudicated under a Section 482 petition. Therefore, the Court left this issue to be argued and tried at the appropriate stage.
On the second issue, the SC held that since the complaint was filed and cognizance of the matter was taken prior to the substitution of S. 79 with the expanded scope of safe harbour, the adjudication of intermediary liability needed to be done as per the unamended S. 79. Google argued exemption under the unamended S. 79 on the basis of the Sharath Babu case before the Supreme Court, where the criminal charge of obscenity had been made against an intermediary, both under the IT Act as well as under IPC. The Court held that because the IT Act was a latter and a special enactment which specifically covered obscene publication of electronic material, it would apply over and above provisions of the IPC. Further, since S. 79 exempted the intermediary from any liability under the IT Act, there was not further cause of action under the IPC.
On the third issue, the SC, relying upon the decisions of English courts, particularly on Byrne v Deane, the Court held that the relevant test for a criminally defamatory publication was ‘whether the defendant really made himself responsible for its continued presence in the place where it has been put?’. The Court in Visakha went on to state the law on the subject of intermediary liability for criminal defamation as follows:
“…In other words, there may be publication within the meaning of Section 499 of the IPC even in the case of an internet operator, if having the power and the right and the ability to remove a matter, upon being called upon to do so, there is a refusal to do so.”
Edited by Sree Ramya
Approved & Published – Sakshi Raje