GOOGLE INDIA PRIVATE LIMITED versus M/S. VISAKHA INDUSTRIES
[2019] 17 S.C.R. 661, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Facts
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GOOGLE INDIA PRIVATE LIMITED
v.
M/S. VISAKHA INDUSTRIES
(Criminal Appeal No. 1987 of 2014)
DECEMBER 10, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973: s.482 – Scope of
interference – Complaint instituted by first respondent company in
January, 2009 under ss.120B, 500 and 501 r/w s.34 IPC and it
related to an offence which perpetuated from 31.07.2008 onwards
– Case of complainant was that it was engaged in the business of
cement sheets – The first accused was the Coordinator of a group
hosted by the appellant which allegedly published an article
defaming the complainant – Summoning order by Magistrate –
Appellant-second accused filed petition under s.482 seeking to
quash the summoning order – High Court held that s.79 of the
Information Technology Act, 2000 exempted the Network Service
Provider from liability only when it proved that the offence was
committed without his knowledge or that he had exercised all due
diligence to prevent the commission of such offence and that this
being a question of fact cannot be decided by High Court in s.482
petition – High Court also noted that the intermediary could not
claim exemption in case he fails to expeditiously remove or disable
access to the objectionable material or unlawful activity, even after
receiving actual knowledge thereof and that since in this case
appellant did not take a single step to block the material or to stop
dissemination of objectionable material in spite of the
notice issued
by complainant to that effect, appellant was not entitled to
exemption under s.79 of the Act, prior to its substitution, or s.79
of the Act, after its substitution, which took effect from 27.10.2009
– Aggrieved appellant filed instant appeal – Held: As to whether
the appellant was justified in not complying with the request for
removal of objectionable posts, involves question as to whether the
appellant was the intermediary, which is not permissible in
proceedings under s.482 – The question whether being a subsidiary
of Google LLC, the appellant is an independent body which is not
to be mulcted with liability, is not to be gone into in s.482 petition
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– Also as to whether there is justification for the Parent Company
in requiring the complainant to provide the URL so that the
offending post could be identified and dealt with and dehors it
whether it could remove the post, is again a matter, which could
not be gone into the proceedings under s.482 – Magistrate to
proceed with the complaint – Information Technology Act, 2000 –
s.79 – Penal Code, 1860 – ss.499/500.
Penal Code, 1860: ss.499 and 450 – Law of defamation –
Discussed.
Disposing of the appeal, the Court
HELD: 1. CONTOURS OF THE JURISDICTION OF
THE HIGH COURT UNDER SECTION 482 OF CRIMINAL
PROCEDURE CODE, 1973
1. As far as the offence of defamation is concerned, even
though the offence under Section 500 is non-cognizable under
the First Schedule to the Cr.PC, the matter would not be
governed by paragraph 2 of the judgment of this Court in Bhajan
Lal as the it is the case of a complaint and not of a Police Report.
It does not appear to be a case where it could be held that
proceeding is manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an ulterior motive
for wrecking vengeance on the appellant with a view to spite
him due to private and personal grudge. [Para 43] [685-D-E]
State of Haryana and Others v. Bhajan Lal and others
(1992) Suppl. SCC 335 : [1991] 1 Suppl. SCR 387 –
referred to.
2. Whether Section 79 of the Information Technology Act,
2000, as it stood prior
to the substitution, would provide a shield
to an intermediary.
2.1 Section 79, before its substitution, exempted the
Network Service Provider, which is defined as an intermediary,
from liability under the Act, Rules or Regulations made
thereunder in regard to any third-party information or data made
available by him provided the Service Provider: Proves that the
offence or contravention was committed without his knowledge
and that the Service Provider proves that he had exercised all
due diligence to prevent the commissioning of such offences or
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contraventions. This provision may be contrasted with the later
avtar of Section 79 of the Act consequent upon substitution with
effect from 27.10.2009. Sub-Section (1) of Section 79, in
unambiguous words, declares by way of a non-obstante clause
that in spite of anything contained in any law which is in force,
though subject to the provisions of sub-Sections (2) and (3), an
intermediary would not be liable for any third-party information,
data or communication link hosted by him. [Paras 59, 61] [691-
E-H; 692-A]
2.2 The scope of Section 79, before its substitution, was
confined to confer immunity from liability in regard to an offence
under the Act or the Rules or Regulations qua third- party action
or data made available and it was not a bar to the complaint
under Section 500 of the IPC being launched or prosecuted. The
complaint relates to a period, much prior to the substitution of
Section 79 of the Act, which ultimately took place only with effect
from 27.10.2009. Assuming for the purpose of argument that the
offence or contravention could relate to even Section 500 of the
IPC, even then, for the protection given by the provisions, as it
stood at the time when the offence alleged against the appellant
was allegedly committed by it, to apply, it would become
incumbent upon the appellant to prove that the offence or the
contravention was committed without its knowledge and that it
had taken all due diligence to prevent the commission of such
offence or
contravention. However, it is undoubtedly true that
the scope of the protection afforded to the intermediary stands
remarkably expanded with the substituted provisions of Section
79 coming into force, no doubt, subject to the conditions
attached thereunder. [Paras 63-64] [692-B-D-E-H; 693-A-C]
3. Whether this court is obliged to decide the question
that the appellant is an intermediary or it is Google LLC which
is the intermediary.
It is true that a perusal of the petition before the High
Court reveals that appellant has purported to take up the
contention that the website is the service offered by the Google
Inc, the parent company of the appellant and that the services
are provided by the parent company directly to the users. It is
contended by the complainant that the appellant did not clarify
by way of answer to the query by the court as to what activities
GOOGLE INDIA PRIVATE LIMITED v.
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they indulge in India. The Memorandum of Association is
referred to contend that the main objects include providing
network related products or services and applications. It is the
case of the complainant further that in fact the entire operations
of Google Economic Entity, the users are provided digital space
purportedly free but are made to part with their personal data
as consideration. The onus would be on the appellant if it seeks
to dispel this fact to lead evidence to show that the appellant
does not have any role to play in the activities of Google. As to
whether, it is Google INC, which is responsible for the Google
Groups and the appellant is not, it is contended by the
complainant, is a matter for evidence. It cannot be determined
on the basis of photocopies of documents filed with the paper
books before this Court. This is not a case where the High Court
could be invited particularly  in the light of the stand of the
complainant to decide in favour of the appellant by holding that
it is the parent company which is the actual intermediary and
not appellant. The proceedings are at the stage where the High
Court appear to have entered a finding in favour of the appellant
in the Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908. However, it is common case that both parties
have filed Review Petitions. In other words, the matter has not
yet attained finality. [Paras 80, 81, 83] [702-H;
703-A-E-H; 704-
A-C-D]
Rajiv Thapar and Others v. Madan Lal Kapoor (2013)
3 SCC 330 : [2013] 3 SCR 52 – referred to.
4. ASSUMING APPELLANT IS AN INTERMEDIARY: A
BRIEF OVERVIEW OF THE LAW OF DEFAMATION
4.1 The essence of the offence of defamation, as defined
in Section 499, would consist of words either spoken or intended
to be read or by signs or by visible representations making or
publishing any imputation concerning any person with the
intention to harm or knowing or having reason to believe that
such imputation will harm the reputation of that person subject
to the Exceptions and Explanations which follow the main
provision. Explanation II declares that it may amount to
defamation to make an imputation concerning a company or an
association or collection of persons as such. [Para 98] [710-A-
B]
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4.2 It is undoubtedly true that the first Exception exempts
from criminal liability, statements which are true and which are
required for public good. It would not be appropriate, proper or
legal for the court to accept the submission of the appellant that
the post in question do not constitute defamation. This is for the
reason that such an exercise would be out of bounds in the facts
of this case, in particular, in a petition filed under Section 482
of the Cr.PC. As to whether it constitute defamation and as to
whether it falls in any of the Explanations/Exceptions, would be
all matters to be decided by the court. [Paras 99, 101] [710-D-
E; 711-D-E]
5. Under Section 499 of the IPC, the Law Giver has made
the making or publishing of any imputation with a requisite
intention or knowledge or reason to believe, as provided
therein, that the imputation will harm the reputation of any
person, the essential ingredients of the offence of defamation.
[Para 104] [713-B]
Mohd. Abdulla Khan v. Prakash K. (2018) 1 SCC
615 : [2017] 12 SCR 9 – relied on.
6. The criminal offence of defamation under Section 499
of the IPC is committed when a person makes a defamatory
imputation which, would consist of the imputation being conveyed
to the person about whom the imputation is made. A publication,
on the other hand, is made when the imputation is communicated
to persons other than the persons about whom the defamatory
imputation is conveyed. A person, who makes the
defamatory
imputation, could also publish the imputation and thus could be
the maker and the publisher of a defamatory imputation. On the
other hand, a person may be liable though he may not have made
the statement but he publishes it. [Para 107] [715-C-D]
M.C. Verghese v. T.J. Poonan and Another (1969) 1
SCC 37 : [1969] 2 SCR 692 – referred to.
Google Spain SL, Google Inc. v. Agencia Espanola de
Proteccion de Datos (AEPD), Mario Costeja Gonzalez
ECLI : EU : C : 2014 : 317 ; Byrne v. Deane (1937)
1 KB 818 ; Payam Tamiz v. Google Inc. (2013) EWCA
CB 68 ; Bunt v. Tilley (2006) EWHC 407 ; Godfrey v.
Demon Internet Limited (2001) QB 201 – referred to.
GOOGLE INDIA PRIVATE LIMITED v.
M/S. VISAKHA INDUSTRIES
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7. EFFECT OF SUBSTITUTION OF SECTION 79 OF
THE ACT
Section 79 of the Act came to be substituted with effect
from 27.10.2009.In this case, the complaint itself is dated
21.01.2009. The Magistrate has issued summons to the
appellant 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.[Paras 133-135] [730-
H; 731-E-F; 733-G-H]
8. WHETHER APPELLANT NOT LIABLE AS IT IS
ONLY A SUBSIDIARY
The question whether being a subsidiary of Google LLC,
the appellant is an independent body which is not to be mulcted
with liability, is not to be gone into in Section 482 of the Cr.PC.
[Para 136] [733-B]
9. In the impugned judgment, the Judge has proceeded
to refer to the notices, which was, according to the complaint,
issued, calling upon the appellant to remove the objectionable
post. It is found that the appellant did not move its little finger
to stop dissemination of the unlawful and objectionable material.
This finding is afflicted with two flaws. In the first place, the High
Court itself has found that Section 79, as it originally was
enacted, had nothing to do with offences
with laws other than
the Act. Section 79, as originally enacted, did not deal with the
effect of other laws. 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. Secondly, there is a case for
the appellant that on receipt of notice, the appellant, as a gesture,
forwarded its complaint to its Parent Company which called for
the details on 06.01.2009. The complaint came to be filed on
21.01.2009. The High Court was not justified, therefore, in
entering findings in the manner it was done. Even Section 79,
as substituted with effect from 27.10.2009, denies the benefit
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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 case in the
complaint is that there was connivance between the accused.
This is not a matter to be proceeded under Section 482 of the
Cr.P.C. [Paras 137-139] [733-C-D; 734-A-F]
Shreya Singhal v. Union of India (2015) 5 SCC 1:
[2015] 5 SCR 963 – relied on.
10. PUBLICATION: If defamatory matter is published as
to who published it, is a question of fact. Publication involves
bringing defamatory matter to the knowledge of a person or
persons other than the one who is defamed. Whether there is
publication, indeed involves asking the question as to whether
there was power and the right to remove any such matter. If
despite such power, and also, ability to remove the matter, if the
person does not respond, it would amount to publication. The
said principle, would hold good even to determine whether there
is publication under Section 499 of the IPC. The further
requirement is it must contain imputations with the intention to
harm or with knowledge or having reasons to believe that it will
harm the reputation of the person concerned. In this case, the
substantial complaint appears to be based on the refusal by the
appellant to remove the matter after being notified. Publication
would be the result even in the context of a medium like the
internet by the intermediary if it defies a court
order and refuses
to takedown the matter. [Paras 141, 142] [734-H; 735-A-E]
11. What is declared a crime in Section 499 of the IPC is
the making or publishing of matter which defames, as described
in the Section. The making or publication must be also
accompanied with the intention or knowledge requisite as
mentioned in the Section to constitute that act a crime. There
was a notice, admittedly received from the complainant by the
appellant, dated 09.12.2008, calling upon the appellant to, inter
alia, remove the controversial post. It is the appellant’s case that
since it did not control the services and as the notice did not
concern its activities, the appellant forwarded the legal notice
to its Parent Company for its response. Appellant further
contended before the High Court that the Parent Company, in
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turn, responded to the complainant on 06.01.2009. Since, the
notice issued by the complainant did not denote the space and
services which allegedly host the defamatory articles, the
complainant was asked to provide the exact details. As to
whether there is justification for the Parent Company in requiring
the complainant to provide the URL so that the offending post
could be identified and dealt with and dehors it whether it could
remove the post, is again a matter, which it may not be possible
to be gone into the proceedings under Section 482 of the Cr.PC.
[Paras 146, 147, 149] [737-B-D; 738-B-C]
HMT Watches Limited v. M.A. Abida and Another
(2015) 11 SCC 776 : [2015] 3 SCR 719 ; Sharat
Babu Digumarti v. Government (NCT of Delhi) (2017)
2 SCC 18 : [2016] 8 SCR 1015 ; Abhijit Pawar v.
Hemant Madhukar Nimbalkar and Another (2017) 3
SCC 528 : [2016] 9 SCR 475; Anvar P.V.  v.  P.K.
Basheer and Others (2014) 10 SCC 473 : [2014] 11
SCR 399 ; Shivjee Singh v. Nagendra Tiwari and
Others (2010) 7 SCC 578 : [2010] 7 SCR 667 ;
Secretary, Ministry of Information and Broadcasting,
Government of India and Others v. Cricket Association
of Bengal and Others (1995) 2 SCC 161 : [1995] 1
SCR 1036 ; Gambhirsinh R. Dekare v. Falgunbhai
Chimabhai Patel and Another (2013) 3 SCC 697 :
[2013] 4 SCR 719 ; Avnish Bajaj v. State (N.C.T. of
Delhi) 116 (2005) DLT 427 ; New Horizons Limited
and Another v. Union of India and Others (1995) 1
SCC
478 : [1994] 5 Suppl. SCR 310 ; State of U.P.
and others v. Renusagar Power Company and others
(1988) 4 SCC 59 : [1988] 1 Suppl. SCR 627 ; Jeffrey
J. Diermeier and Another v. State of West Bengal and
Another (2010) 6 SCC 243 : [2010] 7 SCR 128 ; Som
Mittal v. Govt. of Karnataka (2008) 3 SCC 753 :
[2008] 2 SCR 323 ; State of Rajasthan v. Mangilal
Pindwal (1996) 5 SCC 60 : [1996] 3 Suppl. SCR 98
– referred to.
Richardson v. Facebook (2015) EWHC 3154 (QB) –
referred to.
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Case Law Reference
[2013] 3 SCR 52
referred to
Para 17
[2015] 3 SCR 719
referred to
Para 17
[2016] 8 SCR 1015
referred to
Para 18
[2015] 5 SCR 963
relied on
Para 18
[2016] 9 SCR 475
referred to
Para 20
[2014] 11 SCR 399
referred to
Para 22
[2010] 7 SCR 667
referred to
Para 23
[2015] 5 SCR 963
referred to
Para 27
[1995] 1 SCR 1036
referred to
Para 29
[2013] 4 SCR 719
referred to
Para 30
[2016] 8 SCR 1015
referred to
Para 31
[1994] 5 Suppl. SCR 310
referred to
Para 40
[1988] 1 Suppl. SCR 627
referred to
Para 40
[1991] 1 Suppl. SCR 387
referred to
Para 41
[2010] 7 SCR 128
referred to
Para 42
[2008] 2 SCR 323
referred to
Para 42
[2013] 3 SCR 52
referred to
Para 72
[2015] 3 SCR 719
referred to
Para 72
[2014] 11 SCR 399
referred to
Para 81
[2016] 8 SCR 1015
referred to
Para 85
[2017] 12 SCR 9
relied on
Para 104
[1969] 2 SCR 692
referred to
Para 105
[1996] 3 Suppl. SCR 98
referred to
Para 133
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1987 of 2014.
From the Judgment and Order dated 19.04.2011 of the High
Court of Judicature of Andhra Pradesh at Hyderabad in Criminal
Petition No. 7207 of 2009
GOOGLE INDIA PRIVATE LIMITED v.
M/S. VISAKHA INDUSTRIES
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Sajan Poovayya, Sr. Adv., Ms. Priyadarshi Banerjee, Pratibhanu
Singh Kharola, Mahesh Agarwal, Ankur Saigal, Nishant Rao, Saransh
Jain, Madhavan Sharma, Divyang Gobind Chandiramani, E. C.
Agrawala, Advs. for the Appellant.
Ms. Madhavi Divan, ASG, P.S. Narasimha, Sr. Adv. Sridhar
Potaraju, Ms. Shiwani T., Ms. Sindoora V.N.G., Ms. Shweta Parihar,
Rahul G. Tanwani, V.C. Shukla, Ms. Nisha Bagchi, Ms. Vimla Sinha,
Rajat Nair, G.S. Makker, Advs. for the Respondent.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. The appellant is the second accused in criminal complaint filed
by the first respondent (hereinafter referred to as ‘complainant’, for
short). The appellant filed a Petition under Section 482 The Code of
Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.PC’, for
short), seeking to quash the order passed by the Magistrate summoning
the appellant pursuant to the complaint which seeks to invoke Sections
120B, 500 and 501 read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as ‘the IPC’, for short).
THE COMPLAINT
2. The complainant is a public limited company engaged in the
business of manufacturing and selling asbestos cement sheets with seven
manufacturing plants and more than twenty-five marketing offices all
over India. It is further, inter alia, stated that the product is
manufactured in all its plants in an environment friendly manner. The
first accused is alleged
to be the Coordinator of Ban Asbestos India, a
group hosted by the appellant. Articles are regularly published in the
said group. On 21.11.2008, an article was published. It was captioned
“Poisoning the system: Hindustan Times”. The complaint targeted
renowned politicians of the country who were named and who had
nothing to do with the ownership and management of the company.
Complainant pleads shock on seeing the article dated 31.07.2008
captioned “Visaka Asbestos Industries making gains”. It is stated that
asbestos cement sheets have been manufactured for more than 70
years in India. First accused singled out the complainant though there
are other groups manufacturing asbestos cement products. The relevant
part, which is pertinent to the appellant is contained in paragraph-11:
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“11. Complainant most humbly and respectfully submits that the
Accused No.1’s statement in the articles in the above mentioned
group hosted by the Accused No.2 is filled with hatred towards
Complainant which is 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 has vide usage all over the
world in who’s mind the complainant company is being caused
with such defamatory false statements. The service provider like
Accused No.2 has made it easier than ever before to disseminate
defamatory statements to the world wide audience without taking
any due care and diligence to prevent it. The Accused No.2 has
abused the services provided by it, because both the articles in
the group hosted by it was targeted towards a particular company
which is well within the knowledge of the Accused No.2.”
(Emphasis supplied)
3. Cause of action is mentioned at paragraph-15 and it reads as
follows:
“15. CAUSE OF ACTION: Cause of Action for the complainant
arose on 31st July, 2008, when an article “Visaka Asbestos
Industries making gains” was disseminated by accused no.1 in
“Ban asbestos India” group hosted by accused no.2 and 21st
November 2008 when the second article “Poisoning the system:
Hindustan Times” was
disseminated by the accused no.1 in “Bank
Asbestos India” group hosted by accused no.2 and on 10.12.2008
when the notice to withdraw such articles was issued by the
Complainant and on subsequent dates.”
4. Jurisdiction is indicated in paragraph-16 of the complaint and
it read as follows:
“16. JURISDICTION: The Corporate Office of the Complainant
is situated at “Visaka Towers”, 1-8-303/69/3, S.P. Road,
Secunderabad. Since the Corporate Office of the Complainant
Company is situated within the limits of P.S. Ramgopalpet, this
Hon’ble Court has got jurisdiction to try this complaint.”
GOOGLE INDIA PRIVATE LIMITED v.
M/S. VISAKHA INDUSTRIES [K. M. JOSEPH, J.]
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5. Deputy Manager (Legal) of the complainant made his
statement. Thereafter, the appellant came to be summoned. The
summoning order read as follows:
“SUMMONS TO AN ACCUSED PERSON
(Sec.81 Cr.P.C.)
1363
In the Court of the XI A.C.M. Magistrate at Secunderabad
c.c. No. 679/2009
Between:
M/s. Visaka Industries
… Complainant
AND
Mr. Gopal Krishna & others
… Accused
To,
M/s. Google India Pvt. Ltd.,
3rd Floor, Prestige Sigma,
No.3, Vittal Mallya Road,
Bangalore 560001.
Whereas your attendance is necessary answer to Charge of
U/s.500, 501 of I.P.C. r/w 34 you are hereby directed to appear
in person or by pleader before the Hon’ble XI A.C.M.M. Court
on the day 09.09.2009 10.30 A.M.
Dated this……… day ………………
Seal
Sd/-
Magistrate”
6. It is the said order which came to be challenged before the
High Court.
7. By the impugned judgment, the High Court has dismissed the
petition.
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FINDINGS OF THE HIGH COURT
8. Section 79 of The Information Technology Act, 2000
(hereinafter referred to as ‘the Act’, for short), which appears to have
been relied on by the appellant was found to not exempt a network
service provider from liability much less criminal liability for the offences
under other laws or, more particularly, under the IPC. It was further
found that the above provision exempted Network Service Provider
from liability only on proving that the offence or contravention was
committed without its knowledge or that he had exercised all due
diligence to prevent the commission of such offence or contravention.
Proof, in that regard, can be let in by leading evidence by the accused.
This is a question of fact which the High Court may not go into in the
petition under Section 482 of the Cr.PC.. The Court later notices the
amended Section 79 of the Act which came into being with effect from
27.10.2009. It was noted that it is only under the said amendment that
a non obstante clause was incorporated keeping the application of
other laws outside the purview in a fact situation covered by the said
provision. Under the amended Section 79, in case the intermediary enters
into any conspiracy, the exemption under Section 79 of the Act could
not be claimed. So also, the intermediary could not claim exemption in
case he fails to expeditiously remove or disable access to the
objectionable material or unlawful activity, even after receiving actual
knowledge thereof.
9. The appellant, it was found, did not move its little finger to
block the material or to stop dissemination of the unlawful and
objectionable material in spite of the complainant issuing notice about
the dissemination of defamatory material and unlawful activity on the
part of the first accused. Therefore, it was found that the appellant
could not claim any exemption under Section 79 of the Act, prior to its
substitution, or Section 79 of the Act, after its substitution, which took
effect from 27.10.2009.
10. The complaint was instituted in January, 2009. It related to
an offence which was being perpetuated from 31.07.2008 onwards, i.e.,
since long before prior to the amendment of the said provision. It was
finally found that there was no exemption of any criminal law in respect
of a company which is a juristic person and which has no body that
can be damned or condemned, in case found guilty. Appellant can be
awarded with appropriate punishment though not corporal punishment.
Finding no merit, the petition was dismissed.
GOOGLE INDIA PRIVATE LIMITED v.
M/S. VISAKHA INDUSTRIES [K. M. JOSEPH, J.]
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11. We heard Shri Sajan Poovayya, learned senior counsel
appearing on behalf of the appellant, Shri Sridhar Potaraju the learned
Counsel for the complainant/first respondent-M/s. Visakha Industries
and Ms. Madhavi Divan, learned Additional Solicitor General appearing
on behalf of the Union of India.
12. Shri Sajan Poovayya would contend that services on google
groups is not provided by the appellant. In other words, the basis of
the complainant that appellant is the intermediary, is completely
erroneous. The legal notice sent by the complainant, did not make
reference to any specific URL. The expansion of URL is Unique
Reference Locator which is the address of the content on web to identify
or locate the objectionable post. Therefore, the notice was invalid. The
appellant, however, as a gesture, made over the said notice dated
09.12.2008 to its parent entity, i.e., Google Inc. presently Google LLC.
It is Google LLC which owns the Google Group platforms. Google LLC
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. It is contended that the complaint proceeds on a
mistaken premise that the appellant hosts and provides services on
Google Groups. A further fallacious basis is that the intermediary and
hosting service provider is expected to monitor and pre-censor
publication of content on its platform. Error is
alleged to underlie the
assumption that hosting of services involves the fact that the intermediary
host has knowledge of the content posted on a hosting platform. An
independent publication by an author of any content by itself again
demonstrates absence of any connivance between the author and the
intermediary host. There is no case for the complainant that the appellant
is the author or publisher of the allegedly defamatory articles. On the
other hand, the complaint itself proceeds on the basis that it is the first
accused who is the author of the articles.
13. The appellant lay store by the parallel civil proceedings
between the parties. Following the legal notice issue to the appellant
and to Google LLC on 21.01.2009, a civil suit was instituted against
the first accused, Google LLC and the appellant.
14. The suit filed by the complainant came to be dismissed by
judgment dated 17.02.2014. The complainant succeeded in the first
appeal and the court decreed the suit on 29.01.2016. The appellants
preferred a second appeal. The appeal came to be allowed by the High
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Court on 18.01.2016 by which the suit came to be dismissed against
the appellant which was the second defendant. It is pointed out that
the appellant has filed a review confined in nature against the same.
The complainant has also filed a review.
15. Google LLC is a company incorporated under the laws of
United States of America. Google LLC owns and operates the Google
Groups Platforms. The appellant is the subsidiary of the Google LLC
Group. Appellant has its own separate legal identity. The High Court
has ignored that control over the Google Group platform was of Google
LLC.
16. The learned senior counsel for the appellant drew our attention
to the primary terms upon which service is rendered by Google LLC.
An agreement is contemplated between a user and Google LLC.
Appellant is a company registered under the Indian Companies Act
having its office at Bangalore. Appellant is appointed as a non-exclusive
reseller of Google LLC Ads program in India on a principal to principal
basis. The appellant is engaged in business development and promotional
activity for certain limited products and does not play any role in
providing or administering services as regards Google Groups. It is
contended that appellant is not an agent of Google LLC and it enjoys
autonomy in its functions.
17. The terms of service regarding Google Groups clearly indicate
that the services are provided by Google LLC and not by the appellant.
It is contended that publicly available
documents of an unimpeachable
character or any incontrovertible evidence may be considered by the
High Court in deciding a matter under Section 482 of the Cr.PC.. The
Google Groups terms of service is pressed as one such document.
Reliance is placed on decisions of this Court including Rajiv Thapar
and others v. Madan Lal Kapoor1 and HMT Watches Limited v. M.A.
Abida and another2. Such judicial notice has been taken in the civil
proceedings, it is pointed out.
18. Next, it contended that the ingredients of the offence of
defamation under Section 499 of the IPC have not been made out. The
first ingredient being publication of an imputation has not been satisfied
qua the appellant but only as against the first accused. An intermediary
1 (2013) 3 SCC 330
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is neither a publisher of third-party content nor does it have knowledge
of any content unless it is notified through an order of an appropriate
court or a Government agency. No provision of the Act has been
invoked. Relying on Sharat Babu Digumarti v. Government (NCT of
Delhi)3 and Shreya Singhal v. Union of India4, it is sought to be
contended that since no provisions of the Act are invoked, the complaint
is vitiated. It is still further contended that there is no complaint against
the actual intermediary, viz., Google LLC. It is further contended that
in the context of digital platform, where millions of posts are made, no
editorial control of any sort is exercised by an intermediary in the
publication of any content on such platforms.
19. It is contended that mere hosting of content would be
insufficient to attribute knowledge, and if does not amount to publication
of content. Appellant cannot be attributed with actual knowledge to
ascribe a mental element. The role is passive. The author originates
the material and the author is the originator and not the intermediary.
The person who accesses or reads the content again is not an
intermediary but the addressee. Unless the content is brought to the
actual knowledge of the intermediary, taking down the material, cannot
be imposed upon the intermediary. Actual knowledge must be that which
is conveyed through a court order or through an appropriate
Government agency.
The intermediary cannot become a private censor
or arbiter of content. The appellant seeks to emphasise upon the
adverse impact it would have on freedom of Online Speech and
Expression guaranteed under Article 19(1)(A) of the Constitution of
India.
20. The appellant also makes the point that the mandatory inquiry
under Section 202 of the Cr.PC has not been made. The appellant stood
arrayed as an accused denoting its office at Hyderabad, Bengaluru and
Gurugram whereas the ACJM, whose territorial jurisdiction is limited
to Secunderabad, is the court where the complaint was filed. Section
202 of the Cr.PC, has been observed, in its breach by the Magistrate.
The decision in Abhijit Pawar v. Hemant Madhukar Nimbalkar and
another5, has been enlisted in support in this regard.
3 (2017) 2 SCC 18
4 (2015) 5 SCC 1
5 (2017) 3 SCC 528
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21. A subsidiary does not become liable for the acts of its parent
company, is another contention. It is also contended that a person cannot
be compelled to perform an impossible act.
CONTENTIONS OF THE COMPLAINANT
22. It is not open to the appellants to have invoked powers under
Section 482 of the Cr.PC. The matter involves investigation of
allegations relating to facts. It is pointed out as to whether the appellant
is hosting the google group wherein the first accused has published
defamatory articles is a question of fact. The question as to whether
the appellant is or not an intermediary, is a question of fact. As to
whether the appellant and Google LLC are managed by different entities
or the same entity, is another question of fact. The respondent would
dispute the contention that the documents produced by the appellant
are of an unimpeachable character. The documents are sought to be
relied on without complying with the mandate of Section 65B of The
Indian Evidence Act, 1872. Reliance in this regard Anvar P.V. v. P.K.
Basheer and others6.
23. It is further submitted that the Magistrate has a judicial
discretion upon examining the complainant to proceed without recourse
to the procedure under Section 202 of Cr.PC. There is no pleading of
any prejudice by the appellant nor proof adduced about the same.
Regarding this, reliance is placed on judgment of this Court in Shivjee
Singh v. Nagendra Tiwari and others7.
24. Google hosts the Google Groups. The
only question of fact
is whether the appellant is in control of the said Group or it is, as
claimed, controlled by its Parent Company. Hence, the issue is limited
as to the role of appellant and its participation in the business of
providing Google Groups platform and raising revenues for the same
through advertisements, etc. apart from marketing it. The appellant, it
is contended, cannot be allowed to disown its role in Google Groups.
The appellant has withheld the actual nature of the activities it is
carrying on in India. A party must come to court with clean hands. The
Memorandum of Association itself, prima facie, shows that their main
objects include providing internet related projects and/or services and
applications. There is a common economic entity wherein the users are
6 (2014) 10 SCC 473
7 (2010) 7 SCC 578
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provided digital space purportedly free but are made to part with their
personal data as consideration. The said data is used for generating
advertisement revenues which are targeted as user profile and
geographical location.
25. The role of appellant is a question of fact. Once it is put on
notice, Google cannot be heard to say that it is not aware of the content.
If it chooses to perpetuate the content as publisher of defamatory
content, consequences under law must follow. Appellant plays a very
active role in controlling advertisement. Google is an active publisher
as it provides various tools to users for enabling them to create content
online.
STAND OF THE GOVERNMENT OF INDIA
26. Internet is an important means of expression and
communication. Internet offers information on a mindboggling variety
of subjects. Right to Information is part of Article 19(1)(A) of the
Constitution of India. Internet has come to be recognised as a genuinely
democratic medium. Communication takes place at virtually no cost.
Internet also is a market place for commodities and services. The United
Nations Human Rights Council passed a non-binding Resolution in June,
2016 recognizing internet as a basic Human Right. It is pointed out that
Finland became the first country in 2010 which made broadband a legal
right for every citizen.
27. There is distinction between publication on the internet and
publication in the print media. Reference
was made to the judgment of
this Court in Shreya Singhal v. Union of India8, which has recognised
this distinction. It is contended that there are infinite challenges that
internet poses. The high speed and the high volumes render pre-
censorship highly difficult. There is automatic uploading without any
application of mind on the part of the website/platform.
28. In the year 2015, there were 3.5 billion people in the world
who accessed the internet. On Facebook, there were three million
photographs updated per day. In every minute, 510 comments and
293000 statuses are posted. In 2013, there were 200 billion tweets on
Twitter. In the traditional television programmes, films and newspapers,
the content is pushed to the viewer or the reader. The choice of the
8 (2015) 5 SCC 1
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reader or the viewer is limited to viewing the content or reading the
same. Internet, it is pointed out, works on the pull principle where it is
the viewer who has complete control and he exercises his choice as to
what content he would wish to view or read.
29. The internet uses public spectrum and airwaves to transmit
signal. In Secretary, Ministry of Information and Broadcasting,
Government of India and others v. Cricket Association of Bengal and
others9, this Court took the view that the right of the listeners and the
viewers and not the broadcasters, is paramount. Airwaves and
frequencies are public property. Monopoly by either Government or
anyone else would not square with the free speech interest of citizens.
30. The distinction between the pre-amendment and the after-
amendment versions of Section 79 of the Act is highlighted. It is
contended that the very definition of intermediary would reveal that it
is not an editor or a publisher as understood in the context of the print
media. What flows from the definition points to the role being that of a
facilitator or conduit rather than a selector or editor of information. Light
is sought to be sourced from the views of this Court in the decision in
Gambhirsinh R. Dekare v. Falgunbhai Chimabhai Patel and another10 :
“18. Therefore, from the scheme of the Act it is evident that it
is the Editor who controls the selection of the matter that is
published in a newspaper. Further, every copy of the
newspaper
is required to contain the names of the owner and the Editor and
once the name of the Editor is shown, he shall be held responsible
in any civil and criminal proceeding. Further, in view of the
interpretation clause, the presumption would be that he was the
person who controlled the selection of the matter that was
published in the newspaper. However, we hasten to add that this
presumption under Section 7 of the Act is a rebuttable
presumption and it would be deemed a sufficient evidence unless
the contrary is proved. The view which we have taken finds
support from the judgment of this Court in K.M. Mathew v. K.A.
Abraham [(2002) 6 SCC 670 : 2002 SCC (Cri) 1480] , in which
it has been held as follows: (SCC p. 676, para 20)
9 (1995) 2 SCC 161
10 (2013) 2 SCC 161
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“20. The provisions contained in the Act clearly go to show that
there could be a presumption against the Editor whose name is
printed in the newspaper to the effect that he is the Editor of
such publication and that he is responsible for selecting the matter
for publication. Though, a similar presumption cannot be drawn
against the Chief Editor, Resident Editor or Managing Editor,
nevertheless, the complainant can still allege and prove that they
had knowledge and they were responsible for the publication of
the defamatory news item. Even the presumption under Section
7 is a rebuttable presumption and the same could be proved
otherwise. That by itself indicates that somebody other than editor
can also be held responsible for selecting the matter for
publication in a newspaper.””
31. The aforesaid discussion was in the context of an editor under
the Press and Registration of Books Act, 1867.
32. Still further, reference is made about the role attributable to
the service provider of internet platforms and that of an originator in
the judgment of this Court in Sharat Babu Digumarti v. Government
N.C.T. of Delhi11 in Criminal Appeal No. 1222 of 2016.
33. Internet is a free platform. This is on account of free open
democratic nature of the internet.
34. It is contended that there will be a chilling effect on free
speech if one were to allow intermediaries to intervene merely on
complaints by individuals about being
defamed or being at the receiving
end of the unfair reporting. If permitted, such intervention would result
in privatisation of censorship which would be hazardous for free
expression of ideas.
35. Regarding the extent of the liability of an intermediary, it is
contended that after the amendment in 2008, intermediary’s role as a
mere facilitator of exchanging information or sales, is recognised.
According to Government of India, the pre-amendment situation is
exemplified by the subject matter of the decision of the Delhi High Court
in Avnish Bajaj v. State (N.C.T. of Delhi)12.
11 (2017) 2 SCC 18
12 116 (2005) DLT 427
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36. Anybody aggrieved by the posting of any defamatory matter
on the internet can make a takedown reference under Section 79 of
the Act. Section 69A of the Act is relied on. Section 69A gives power
to the Central Government to block access by giving directions to any
intermediary on being satisfied of there being need to do so in the
interest of sovereignty among other factors. The matter is governed
under the Information Technology (Procedures and Safeguards for
Blocking for Access of Information by Public) Rules, 2009.
37. As far as the stand of the Union regarding the liability of the
subsidiary of a foreign intermediary is concerned, reliance is placed on
the decision of the Court of Justice of the European Union (ECJ).
38. The case of In Google Spain SL, Google Inc. v. Agencia
Espanola de Proteccion de Datos (AEPD), Mario Costeja Gonzalez13,
Case C-131/12, Court of Justice of European Union (ECJ), is important
in this regard. In Google Spain, the ECJ recognized an individual’s right
to be forgotten, enabling a person to obtain removal of search results
which violated his/her privacy interests. The case has geographical
implications: first, would such removal of content be restricted to an
EU-audience, and two, does the EU court have the authority to direct
foreign intermediaries to takedown content. The Court embraced the
arguments put forth by Google’s opponents:
(i) That Google’s search engine activities are closely related
to the activity of
selling advertising space, which is
precisely what subsidiaries such as Google’s
establishment in Spain are engaged.
(ii) As a result, the processing activities related to the
search engine service are also being carried out “in the
context of the activities” of Google’s Spanish subsidiary.
(iii) The counsels for the plaintiff, Spain and Austria, likewise
emphasised the link between the search engine service
and the selling of advertising space from a business
model perspective; arguing that the activity of Google’s
establishment in Spain should not be regarded as an
ancillary activity, but rather as an integral part of the
primary activity (i.e. the selling of advertisement
space)(paragraphs 46 to 52).
13 ECLI:EU:C:2014:317
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39. The ECJ therefore considered that the activities of the search
engine operator and those of its establishment are “inextricably linked”,
as Google’s search engine service is closely related to the activity of
selling advertisement space (paragraph 56). Specifically, the Court
reasoned that, “the activities relating to the advertising space constitute
the means of rendering the search engine at issue economically
profitable and engine is, at the same time, the means enabling those
activities to be performed.”(paragraph 56). The Court in paragraphs
53 and 54 noted that, the EU’s Data Protection Directive 95/46 “sought
to prevent individuals from being deprived of the protection guaranteed
by the directive and that protection from being circumvented, by
prescribing a particularly broad territorial scope.” Based on these
observations, the ECJ concluded that the processing relating to the
search engine service should be viewed as taking place “in the context
of the activities of an establishment” located on EU territory (see
paragraphs 53, 54). This case recognizes that the domestic subsidiary
responsible for advertising and attracting a user base could be held liable
for the acts of the parent.
40. Our attention is also drawn to the decision in Richardson v.
Facebook14. It is contended that however given that the foreign body
may not have Indian presence, the corporate veil may be lifted to fix
liability on the
subsidiary, if it is established that the latter is an alter
ego of the foreign company and support is sought to be drawn from
the judgments of this Court in New Horizons Limited and another v.
Union of India and others15 and State of U.P. and others v. Renusagar
Power Company and others16.
CONTOURS OF THE JURISDICTION OF THE HIGH COURT
UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE, 1973
41. The contours of the jurisdiction of the High Court under
Section 482 is no longer res integra. We would think that it is sufficient
if we only advert to the judgment of this Court in State of Haryana
and others v. Bhajan Lal and others17. This Court held as follows:
14 (2015) EWHC 3154 (QB)
15 (1995) 1 SCC 478
16 (1988) 4 SCC 59
17 (1992) Supp (1) SCC 335
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“102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles
of law enunciated by this Court in a series of decisions relating
to the exercise of the extraordinary power under Article 226 or
the inherent powers under Section 482 of the Code which we
have extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code
except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of
the same do not
disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
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(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to
private and personal grudge.
103. We also give a note of caution to the effect that the power
of quashing a criminal proceeding should be exercised very
sparingly and with circumspection and that too in the rarest of
rare cases; that the court will not be justified in embarking upon
an enquiry as to the reliability or genuineness or otherwise of
the allegations made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an arbitrary
jurisdiction on the court to act according to its whim or caprice.”
42. As to what is the scope of the expression “rarest of rare
cases” indicated in paragraph 103, we may only refer to the judgment
of this Court in Jeffrey J. Diermeier and another v. State of West Bengal
and another18 wherein the law laid down by a Bench of three Judges
in Som Mittal v. Govt. of Karnataka19 has been
referred to:
“23. The purport of the expression “rarest of rare cases”, to
which reference was made by Shri Venugopal, has been
explained recently 
in Som Mittal (2) v. Govt. of
Karnataka [(2008) 3 SCC 574 : (2008) 1 SCC (L&S) 910 :
(2008) 2 SCC (Cri) 1] . Speaking for a Bench of three Judges,
the Hon’ble the Chief Justice said: (SCC pp. 580-81, para 9)
“9. When the words ‘rarest of rare cases’ are used after the
words ‘sparingly and with circumspection’ while describing the
scope of Section 482, those words merely emphasise and reiterate
what is intended to be conveyed by the words ‘sparingly and with
18 (2010) 6 SCC 243
19 (2008) 3 SCC 753
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circumspection’. They mean that the power under Section 482
to quash proceedings should not be used mechanically or
routinely, but with care and caution, only when a clear case for
quashing is made out and failure to interfere would lead to a
miscarriage of justice. The expression ‘rarest of rare cases’ is
not used in the sense in which it is used with reference to
punishment for offences under Section 302 IPC, but to emphasise
that the power under Section 482 CrPC to quash the FIR or
criminal proceedings should be used sparingly and with
circumspection.”
(Emphasis supplied)
43. Applying the principles, the question would be whether the
appellant had made out a case for granting relief in proceedings under
Section 482 of the Cr.PC. As far as the offence of defamation is
concerned, even though the offence under Section 500 is non-cognizable
under the First Schedule to the Cr.PC, the matter would not be governed
by paragraph 2 of the judgment of this Court in Bhajan Lal (supra) as
the it is the case of a complaint and not of a Police Report. Equally,
paragraph 4 of Bhajan Lal (supra) is for the same reason inapplicable.
We do not think that it is a case where we could hold that proceeding
is manifestly attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wrecking vengeance
on the appellant with a view to spite him due to private and personal
grudge.
44. Next, we must consider whether there is any express
legal
bar engrafted in any provisions of the Code or the Act governing the
field to the institution and continuance of the proceedings. It is here
that provisions of Section 79 of Information Technology Act, 2000 would
assume significance.
45. Section 79 of the Information Technology Act, as it was
enacted originally, read as follows:
“Chapter XII
NETWORK SERVICE PROVIDERS NOT TO BE LIABLE
IN CERTAIN CASES
79. Network Service Providers not to be liable in certain cases:
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For the removal of doubts, it is hereby declared that no person
providing any service as a network service provider shall be liable
under this Act, rule or regulations made thereunder for any third
party information or data made available by him if he proves that
the offence or contravention was committed without his
knowledge or that he had exercised all due diligence to prevent
the commission of such offence or contravention.
Explanation. For the purpose of this Section,
(a) “network service provider” means an intermediary;
(b) “third party information” means any information dealt
with by a network service provider in his capacity as
an intermediary.”
(Emphasis supplied)
 46. The said provision was substituted by the Information
Technology (Amendment) Act of 2008. It came into force on
27.10.2009. It reads as follows:
“79 Exemption from liability of intermediary in certain cases:
(1) Notwithstanding anything contained in any law for the time
being in force but subject to the provisions of sub-sections (2)
and (3), an intermediary shall not be liable for any third party
information, data, or communication link hosted by him.
(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing
access to a communication system over which
information made available by third parties is transmitted
or temporarily stored; or
(b) the intermediary does not-
(i) initiate the
transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the
transmission
(c) the intermediary observes due diligence while
discharging his duties under this Act and also observes
such other guidelines as the Central Government may
prescribe in this behalf (Inserted Vide ITAA 2008)
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(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or
induced whether by threats or promise or otherwise in
the commission of the unlawful act (ITAA 2008)
(b) upon receiving actual knowledge, or on being notified
by the appropriate Government or its agency that any
information, data or communication link residing in or
connected to a computer resource controlled by the
intermediary is being used to commit the unlawful act,
the intermediary fails to expeditiously remove or disable
access to that material on that resource without vitiating
the evidence in any manner.
Explanation:- For the purpose of this section, the expression “third
party information” means any information dealt with by an
intermediary in his capacity as an intermediary.”
47. The High Court has contrasted the earlier avtar of Section
79 with the newly inserted provisions and held as follows:
“4. … In the case on hand, in spite of the 1st respondent issuing
notice bringing the petition about dissemination of defamatory
material and unlawful activity on the part of A-1 through the
medium of A-2, the petitioner/A-2 did not move its little finger
to block the said material or to stop dissemination of the unlawful
and objectionable material. Therefore, the petitioner/A-2 cannot
claim any exemption either under Section 79 of the Act as it stood
originally or Section 79 of the Act after the amendment which
took effect from 27.10.2009.
the present case in the lower court
was instituted in January, 2009 relating to the offences which are
being perpetrated from 31.07.2009 onwards, i.e., since long prior
to the amendment of the said provision.”
48. The discussion of the High Court regarding Section 79 reveals
the following findings:
a. The earlier version of Section 79 kept at bay the impact
of other laws. After the amendment, Section 79 affords
exemption from any other law in respect of the third-
party information subject to sub-Section (2) of Section
79.
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b. Intermediary under the extant provisions of Section 79
cannot seek refuge in Section 79 if it failed to
expeditiously remove or disable access to the
objectionable material or unlawful activity even after
receiving actual knowledge thereof.
c. In the case, it is found that in spite of the first respondent
complaint issuing notice about dissemination of
defamatory information on the part of A1-accused no.1-
appellant did not move its little finger to block the
material or to stop dissemination of unlawful and
objectionable material. This conduct of the appellant
disentitles it from claiming protection either under the
provisions of the unamended Section 79 or under Section
79 after substitution. The offence in this case was
perpetuated from 31.07.2008 onwards since long prior
to the substitution.
49. At this juncture, it is apposite that we took a deeper look at
what the Government of India has to say about Section 79.
50. Section 79 is a safe harbour provision. Internet intermediaries
give access to host, disseminate and index content, products and
services originated by third parties on the internet. There are different
kinds of intermediaries. They include:
i. Internet Access and Service Provider (ISP). Examples
are given in this category of Airtel, Vodafone, BSNL
among others;
ii. Data Processing and Web Hosting Providers. Examples
include Godaddy and Bigrock;
iii. Internet Search Engines and Portals like
Google, Yahoo
and Binge;
iv. E-mail hosts like gmail (Google) and yahoomail;
v. Then there are instant messaging platforms such as
Whatsapp, Facebook Messenger, Skype, etc.;
vi. E-commerce intermediaries where the platforms do not
take title to the goods being sold like Amazon India,
Flipkart, etc.;
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vii. Internet Payment Systems and Mobile Walleters like
Paytm, etc.;
viii. There are also participative internet platforms.
51. The 2008 amendment introduced Chapter XII to the
Information Technology Act. The amendment was in the background
of the decision of the Delhi High Court in Avinash Bajaj v. State (NCT
of Delhi)20.
52. Intermediaries stand on a different footing being only
facilitators of exchanges of information or sales. Prior to the amendment,
the exemption provision under Section 79 did not exist and, therefore,
an intermediary would have been liable for any third-party information
or data made available by him as seen in the Bazeed (supra).  After
the amendment, intermediary is not liable under any Act if it satisfied
certain requirements as detailed in Section 79.
53. After referring to the decision in Shreya Singhal (supra), the
Government of India has understood the position at law to be that
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. The further stand of the Government of India is thus
there is a recognition that intermediaries and neutral platforms are only
facilitating information. It is further pointed out on behalf of the
Government of India that the interpretation placed by this Court in Shreya
Singhal (supra) was not available to the High Court when it
passed the
impugned order in this case. Shreya Singhal makes it clear that an
intermediary’s liability will not arise unless it failed to take down material
upon there being actual knowledge by court order or government
communication. This safeguard has been put in place to avoid chilling
affect on free speech. The intermediaries would, if a contrary view is
taken, stand elevated to the status of super censors and denude the
internet of it unique feature of a democratic medium for all to publish,
access and read any and all kinds of information.
54. Owing to the special unique characteristic of the internet,
intermediaries are not in a position to know about a content which is
posted on its platforms by itself and, therefore, the strict liability principle
20 116/2005 DLT 427
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cannot be made applicable to internet intermediaries. It is the specific
stand of the Government of India that even pre-amendment, an
intermediary could not know the contents of what is posted on its
website and, therefore, be held liable in the absence of a takedown order
by a court or Governmental Agency.
55. The Government of India, it is also noticed, has perceived a
distinction between blocking under Section 69A of the Information
Technology Act and takedown under Section 79 of the Information
Technology Act. Section 69A reads as follows:
“69A, Power to issue directions for blocking for public access
of any information through any computer resource
(1) Where the Central Government or any of its officer
specially authorized by it in this behalf is satisfied that
it is necessary or expedient so to do in the interest of
sovereignty and integrity of India, defence of India,
security of the State, friendly relations with foreign states
or public order or for preventing incitement to the
commission of any cognizable offence relating to above,
it may subject to the provisions of sub-sections (2) for
reasons to be recorded in writing, by order direct any
agency of the Government or intermediary to block
access by the public or cause to be blocked for access
by public any information generated, transmitted,
received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such
blocking for access by the public may be carried out
shall be such as may be prescribed.
3) The intermediary who fails to comply with the direction
issued under sub-section (1) shall be punished with an
imprisonment for a term which may extend to seven
years and also be liable to fine.”
56. It is pointed out that the grounds under which Government
issues directions for blocking information are limited and confined to
matters relating to national security, public order and the like. The power
does not expand to blocking any case of defamation, contempt of court,
etc. A blocking order under Section 69A cannot be passed for criminal
defamation as it does not fall under the scope of Section 69A.
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Therefore, if a party is aggrieved by posting of a defamatory content
on website, he must seek recourse to the court process for adjudication.
The matter can be directed to be removed or access disabled under
Section 79(3) of the Information Technology Act. Since, the Court
process can be long drawn, the aggrieved party may seek an interim
order before a competent court.
57. In fact, the learned Senior Counsel for the appellant did not,
as such, canvass the matter on the basis of Section 79 before it was
substituted. However, we deem it proper to delineate its scope in view
of the fact that if there is an express legal bar to attach criminal liability
upon the appellant under the Act, it would become a matter of
jurisdiction. It is also the stand taken by the Government of India that
there be no liability on the intermediary under Section 79 of the Act
prior to the substitution as we have set out herein before.
58. It must be noted that stand of the appellant primarily has been
that the appellant is not the intermediary in this case and the intermediary
in this case is Google LLC. The arguments have been otherwise
addressed by the appellant on the basis though that even proceeding
on the basis that the appellant is treated as an intermediary, the
complaint against the appellant, cannot be allowed to proceed.
59. On the question as to whether Section 79, as it stood prior
to the substitution, would provide a shield to an intermediary, we would
enter the
following findings.
60. In our view, Section 79, before its substitution, exempted the
Network Service Provider, which is defined as an intermediary, from
liability under the Act, Rules or Regulations made thereunder in regard
to any third-party information or data made available by him provided
the Service Provider:
1. Proves that the offence or contravention was committed
without his knowledge;
2. The Service Provider proves that he had exercised all
due diligence to prevent the commissioning of such
offences or contraventions.
 61. This provision may be contrasted with the later avtar of
Section 79 of the Act consequent upon substitution with effect from
27.10.2009. Sub-Section (1) of Section 79, in unambiguous words,
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declares by way of a non-obstante clause that in spite of anything
contained in any law which is in force, though subject to the provisions
of sub-Sections (2) and (3), an intermediary would not be liable for any
third-party information, data or communication link hosted by him. The
conditions are set out in sub-Section (2).
62. As we have noticed, the scope of Section 79, before its
substitution, was confined to confer immunity from liability in regard to
an offence under the Act or the Rules or Regulations qua third-party
action or data made available. In this regard, it must be noticed that
Chapter XI of the Act deals with the offences. Sections 65 to 67B deals
with various offences under the Act. This is besides Sections 71, 72A,
73 and 74 of the Act. Section 79 falls under Chapter XII. Therefore,
the scheme of the Act would also indicate that Section 79, as it was
prior to the substitution, was indeed confined to the liability of the
Network Service Provider arising out of the provisions of the Act
besides, no doubt, Rules and Regulations, and it was not, in short, a
bar to the complaint under Section  500 of the IPC being launched or
prosecuted.
63. The complaint relates, in short, to a period, much prior to the
substitution of Section 79 of the Act, which ultimately took place only
with effect from 27.10.2009. The court, in Shreya Singhal (supra), was
not considering the provisions of Section 79 as it stood
before the
substitution on 27.10.2009 which is what the High Court has focussed
on to find that it was not open to the appellant to seek shelter under
Section 79. No doubt, there are certain observations which have been
made by the High Court regarding notice to the petitioner, which we
will dwell upon.
64. We may, in fact, notice another aspect of the matter. Even,
proceeding on the basis that Section 79 should engage us any further,
we cannot be oblivious to an integral feature of Section 79 prior to its
substitution. As we have noted, the Law Giver has given protection from
liability not unconditionally. It is for the Service Provider to prove that
the offence or contravention was committed without his knowledge.
He is also to prove that he has exercised all due diligence to prevent
the commission of such offence or contravention. We will, for the
purpose of argument, assume that the offence or contravention could
relate to even Section 500 of the IPC. Even then, for the protection
given by the provisions, as it stood at the time when the offence alleged
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against the appellant was allegedly committed by it, to apply, it would
become incumbent upon the appellant to prove that the offence or the
contravention was committed without its knowledge and that it had taken
all due diligence to prevent the commission of such offence or
contravention. It may be at once noticed that in reality the scope of
Section 79 of the Act, prior to the substitution, was limited to granting
exemption to the Network Service Provider from any liability under the
Act, Rules or Regulations made thereunder, no doubt, in regard to third-
party information or data available by him. The commission of an
offence under Section 500 of the IPC, would not be a liability under
the Act or a Rules, or Regulations made under the Act. However, it is
undoubtedly true that the scope of the protection afforded to the
intermediary stands remarkably expanded with the substituted provisions
of Section 79 coming into force, no doubt, subject to the conditions
attached thereunder and as explained by this Court in Shreya Singhal
(supra).
65. The Government of India, no doubt, has contended that the
High Court did not have the benefit of judgment of this Court in Shreya
Singhal (supra). We may notice that what is considered in Shreya
Singhal (supra) was Section 79 after substitution. There was a challenge
mounted to the constitutionality of Section 79. This Court held as follows,
inter alia:
“120. One of the petitioners’ counsel also assailed Section
79(3)(b) to the extent that it makes the intermediary exercise its
own judgment upon receiving actual knowledge that any
information is being used to commit unlawful acts. Further, the
expression “unlawful acts” also goes way beyond the specified
subjects delineated in Article 19(2).
121. It must first be appreciated that Section 79 is an exemption
provision. Being an exemption provision, it is closely related to
provisions which provide for offences including Section 69-A. We
have seen how under Section 69-A blocking can take place only
by a reasoned order after complying with several procedural
safeguards including a hearing to the originator and intermediary.
We have also seen how there are only two ways in which a
blocking order can be passed—one by the Designated Officer
after complying with the 2009 Rules and the other by the
Designated Officer when he has to follow an order passed by a
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competent court. The intermediary applying its own mind to
whether information should or should not be blocked is noticeably
absent in Section 69-A read with the 2009 Rules.
122. Section 79(3)(b) has to be read down to mean that the
intermediary upon receiving actual knowledge that a court order
has been passed asking it to expeditiously remove or disable
access to certain material must then fail to expeditiously remove
or disable access to that material. This is for the reason that
otherwise it would be very difficult for intermediaries like Google,
Facebook, etc. to act when millions of requests are made and
the intermediary is then to judge as to which of such requests
are legitimate and which are not. We have been informed that
in other countries worldwide this view has gained acceptance,
Argentina being in the forefront. Also, the Court order and/or
the notification by the appropriate Government or its agency must
strictly conform to the subject-matters laid down in Article 19(2).
Unlawful acts beyond what is laid down in Article 19(2) obviously
cannot form any part of Section 79. With these two caveats, we
refrain from striking down Section 79(3)(b).
123. The learned Additional Solicitor General informed us that it
is a common practice worldwide for intermediaries to have user
agreements containing what is stated in Rule 3(2). However, Rule
3(4) needs to be read down in the same manner as Section
79(3)(b). The
knowledge spoken of in the said sub-rule must only
be through the medium of a court order. Subject to this, the
Information Technology (Intermediaries Guidelines) Rules, 2011
are valid.
xxx
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xxx
124.3. Section 79 is valid subject to Section 79(3)(b) being read
down to mean that an intermediary upon receiving actual
knowledge from a court order or on being notified by the
appropriate government or its agency that unlawful acts relatable
to Article 19(2) are going to be committed then fails to
expeditiously remove or disable access to such material. Similarly,
the Information Technology “Intermediary Guidelines” Rules,
2011 are valid subject to Rule 3 sub-rule (4) being read down in
the same manner as indicated in the judgment.”
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66. The Court also was considering the challenge to the provisions
of the Information Technology (Intermediaries Guidelines) Rules, 2011
(hereinafter referred to as ‘the Rules’ for short). The Rules were
brought into force after 2011. It was made under Section 87 of the Act.
Rule 3 provides for due diligence to be observed by the intermediary.
It is obliged to publish the Rules and Regulations and the Privacy Policy
and User Agreement. The intermediary is to intimate the user not to
use certain matter which include defamatory matter. Rule 3(3) of the
Rules provided that the intermediary was not to knowingly host or
publish any information, inter alia, contained, as specified in sub-Rule
(2). Thus, under the Rules, the intermediary could not knowingly host
or publish information which was, inter alia, defamatory. Rule 3(4) of
the Rules, read as follows:
“3. Due diligence to he observed by intermediary — The
intermediary shall observe following due diligence while
discharging his duties, namely : —
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(4) The intermediary, on whose computer system the information
is stored or hosted or published, upon obtaining knowledge by
itself or been brought to actual knowledge by an affected person
in writing or through email signed with electronic signature about
any such information as mentioned in sub-rule (2) above, shall
act within thirty six hours and where applicable, work with user
or owner of such information to disable such information that is
in
contravention of sub-rule (2). Further the intermediary shall
preserve such information and associated records for at least
ninety days for investigation purposes,”
67. It is clear that the entire discussion came to be made in the
context of the challenge to the provisions of Section 79 after
substitution. No doubt, there are observations, which have been made,
the effect of which we shall deal with to the extent that is relevant to
this case. What is relevant is, for the purpose of deciding this case, we
are of the view that this may not be the case where there is an express
legal bar in the form of Section 79 of the Act prior to its substitution.
We cannot be unmindful of the fact that we are dealing with a criminal
complaint and the question to be considered is whether the offence, as
alleged in the complaint, was committed or not.
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WHETHER “RAJIV THAPAR AND OTHERS V. MADAN LAL
KAPOOR” WOULD APPLY?
68. The next question, which we must address is, whether the
appellant can persuade us to decide the question as to whether the
appellant is an intermediary and it is Google LLC which is the
intermediary.
69. “Intermediary” has been defined in the Act in Section
2(1)(ua)(w), which reads as follows:
“2(1)(ua)(w). “intermediary”, with respect to any particular
electronic records, means any person who on behalf of another
person receives, stores or transmits that record or provides any
service with respect to that record and includes telecom service
providers, network service providers, internet service providers,
web-hosting service providers, search engines, online payment
sites, online-auction sites, online-market places and cyber cafes;”
70. Section 2(1)(ua)(za) defines the word “originator”:
“2(1)(ua)(za) “originator” means a person who sends, generates,
stores or transmits any electronic message; or causes any
electronic message to be sent, generated, stored or transmitted
to any other person but does not include an intermediary;”
71. Section 2(1)(b) defines the word ‘addressee’ and it reads as
follows:
“(b) “addressee” means a person who is intended by the
originator to receive the electronic record but does not include
any intermediary;”
72. According to the appellant, this is a case where the High
Court erred in not considering and answering the
question as to whether
the appellant is an intermediary or not. It is the case of the appellant
that the appellant is only the subsidiary of Google LLC which is its parent
company. It is his further submission that the High Court ought to have
permitted the appellant to draw support from terms of service regarding
Google Groups which convincingly establishes that the services were
provided by Google LLC and not the appellant. In this regard, reliance
is placed on judgments of this Court in Rajiv Thapar and others v.
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Madan Lal Kapoor21 and HMT Watches Ltd. v. M.A. Abida and
another22. It is contended that Google Groups terms of service is a
document of sterling value being of indisputable character. What is
produced before us is last update seen dated 10.12.2010. Under the
same, there was reference to responsibilities of the originator under the
head ‘content’ your responsibilities. It is submitted that the originator,
not Google, which will be liable for the content that will be uploaded,
posted, disseminated, etc., which is collectively said to be posted via
the service. Under appropriate conduct, it is stated as follows:
“5. Appropriate Conduct
You agree that you are responsible for your own conduct and
communications while using the Service and for any
consequences thereof. You agree to use the Service only to send
and receive messages and material that are legal, proper and
related to the particular Group. By way of example, and not as
limitation, you agree that when using the Service, you will not:
 defame, abuse, harass, stalk, threaten or otherwise
violate the legal rights (such as rights of privacy and
publicity) of others;
 post any inappropriate, defamatory, infringing, obscene,
or unlawful Content;
 post any Content that infringes any patent, trademark,
copyright, trade secret or other proprietary right of any
party (the “Rights”), unless you are owner of the Rights
or have the permission of the owner to Post such
Content;
 post messages that promote
pyramid schemes, chain
letters or disruptive commercial messages or
advertisements, or anything else prohibited by the Group
owner;
 download any file Posted by another user of a Group
that you know, or reasonably should know, that cannot
be legally distributed in such manner;
21 (2013) 3 SCC 330
22 (2015) 11 SCC 776
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 impersonate another person or entity, or falsify or delete
any author attributions, legal or other proper notices or
proprietary designations or labels of the origin or source
of software or other material contained in a file that is
Posted;
 restrict or inhibit any other user from using and enjoying
the Service;
 use the Service for any illegal or unauthorised purpose;
 remove any copyright, trademark or other proprietary
rights notices contained in or on the Service;
 interfere with or disrupt the Service or servers or
networks connected to the Service, or disobey any
requirements, procedures, policies or regulations of
networks connected to the Service;
 use any robot, spider, site search/retrieval application,
or other device to retrieve or index any portion of the
Service or collect information about users for any
unauthorised purpose;
 submit Content that falsely expresses or implies that
such Content is sponsored or endorsed by Google;
 create user accounts by automated means or under false
or fraudulent pretenses;
 promote or provide instructional information about illegal
activities or promote physical harm or injury against any
group or individual;
or
 transmit any viruses, worms, defects, Trojan horses, or
any items of a destructive nature.
International users agree to comply with their own local rules
regarding online conduct and acceptable content, including laws
regulating the export of data
to the United States or your country
of residence.
While Google prohibits such conduct and Content in connection
with the Service, you understand and agree that you nonetheless
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may be exposed to such conduct and/or Content and that you
use the Service at your own risk.”
73. We may also notice, under the head “Propriety Rights”,
“Google’s Rights”, it is mentioned as follows:
“6. Proprietary Rights
Google’s Rights
Google and its affiliates and licensors own and retain all rights
in the Service, which contains proprietary and confidential
information that is protected by applicable intellectual property
and other laws. Except as expressly authorised by Google, you
may not copy, modify, publish, transmit, distribute, perform, display
or sell any of Google’s proprietary information. “GOOGLE
GROUPS”, are trademarks of Google.”
74. We may also notice the following under head
“Advertisements”:
“9. Advertisements
Google Groups is an ad-supported service. As such, we display
advertisements and promotions on the Service. The manner,
mode and extent of advertising by Google on the Service are
subject to change. You agree that Google shall not be responsible
or liable for any loss or damage of any sort incurred as a result
of any such dealings or as the result of the presence of such
advertisers on the Service.”
75. Also, we noticed the conditions under the heading “Disclaimer
of Warranties”:
“11. Disclaimer of Warranties
Google and its affiliates, licensors, partners, suppliers, consultants
and agents (“Google Entities”) disclaim any and all responsibility
or liability for the accuracy, content, completeness, legality,
reliability, or
operability or availability of information or Content
displayed on the Service. The Google Entities disclaim any and
all responsibility and liability for your conduct and for the conduct
of others using the Service.
THE SERVICE, AND ALL CONTENT, INFORMATION
(INCLUDING, 
WITHOUT 
LIMITATION, 
ANY
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INFORMATION 
OR 
CONTENT 
OBTAINED 
OR
ACCESSED THROUGH THE SERVICE), PRODUCTS AND
SERVICES INCLUDED THEREIN ARE PROVIDED “AS
IS,” WITH NO WARRANTIES WHATSOEVER. THE
GOOGLE ENTITIES EXPRESSLY DISCLAIM TO THE
FULLEST EXTENT PERMITTED BY LAW AND EXPRESS,
IMPLIED AND STATUTORY WARRANTIES, INCLUDING,
WITHOUT LIMITATION, THE WARRANTIES OF
MERHCNTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, 
AND 
NON-INFRINGEMENT 
OF
PROPRIETARY RIGHTS. SOME STATES DO NOT ALLOW
THE EXCLUSION OR LIMITATION OF IMPLIED
WARRANTIES, SO THE ABOVE DISCLAIMERS AND
EXCLUSIONS MAY NOT APPLY TO YOU.
YOU AGREE THAT YOUR USE OF THE SERVICES ARE
ENTIERLY AT YOUR OWN RISK”
76. It is further submitted that the terms of service would
constitute the entire agreement between the party and Google. Under
the “Google Groups Content Policy”, it was brought to our notice by
the learned Counsel for the appellant that Google has a zero-tolerance
policy towards the content that exploits children. Google retains the
power to remove hate speech which is explained as content that
promotes hate or violence towards groups based on race, ethnicity,
religion, disability, gender, age, veteran status, or sexual orientation/
gender identity. There is an exhortation against threatening, harassing
or bullying other people using Groups. There is again the condition that
groups cannot be used to encourage any illegal activities or to promote
dangerous and illegal activities.
77. As
far as decision in Rajiv Thapar(supra), relied upon by
appellant, is concerned, it involved the following facts. The appellant
therein was married to the deceased. The deceased fell ill and was
admitted in the hospital. She was diagnosed with as suffering from
malaria. After she was discharged, she again fell ill. The
Echocardiography confirmed presence of a large hole in her heart. She
succumbed to a massive heart attack. Suspecting poisoning, father of
the deceased filed the complaint. The Medical Board found death due
to cardiac decompensation. The CFSL Report also indicated no
common poison. The Metropolitan Magistrate, who was approached
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by the father of the deceased, committed the case to the Sessions Court
who discharged the appellant-accused. The High Court, however, set
aside the order. It was in these circumstances, this Court took the
following view in regard to the manner in which the matter must be
approached when a party approaches High Court under Section 482
of the Cr.PC:
“28. The High Court, in exercise of its jurisdiction under Section
482 CrPC, must make a just and rightful choice. This is not a
stage of evaluating the truthfulness or otherwise of the allegations
levelled by the prosecution/complainant against the accused.
Likewise, it is not a stage for determining how weighty the
defences raised on behalf of the accused are. Even if the accused
is successful in showing some suspicion or doubt, in the
allegations levelled by the prosecution/complainant, it would be
impermissible to discharge the accused before trial. This is so
because it would result in giving finality to the accusations levelled
by the prosecution/complainant, without allowing the prosecution
or the complainant to adduce evidence to substantiate the same.
The converse is, however, not true, because even if trial is
proceeded with, the accused is not subjected to any irreparable
consequences. The accused would still be in a position to succeed
by establishing his defences by producing evidence in accordance
with law. There is an endless list of judgments rendered by this
Court declaring the legal position
that in a case where the
prosecution/complainant has levelled allegations bringing out all
ingredients of the charge(s) levelled, and have placed material
before the Court, prima facie evidencing the truthfulness of the
allegations levelled, trial must be held.
30.  Based on the factors canvassed in the foregoing paragraphs,
we would delineate the following steps to determine the veracity
of a prayer for quashment raised by an accused by invoking the
power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused
is sound, reasonable, and indubitable i.e. the material is of sterling
and impeccable quality?
30.2. Step two: whether the material relied upon by the accused
would rule out the assertions contained in the charges levelled
against the accused i.e. the material is sufficient to reject and
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overrule the factual assertions contained in the complaint i.e. the
material is such as would persuade a reasonable person to dismiss
and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused
has not been refuted by the prosecution/complainant; and/or the
material is such that it cannot be justifiably refuted by the
prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result
in an abuse of process of the court, and would not serve the ends
of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial
conscience of the High Court should persuade it to quash such
criminal proceedings in exercise of power vested in it under
Section 482 CrPC. Such exercise of power, besides doing justice
to the accused, would save precious court time, which would
otherwise be wasted in holding such a trial (as well as
proceedings arising therefrom) specially when it is clear that the
same would not conclude in the conviction of the accused.”
(Emphasis supplied)
78. The court also declared that the High Court must be fully
satisfied about the material and that material produced by the accused
must be such that the defence is based on sound, reasonable and
indisputable facts.
79. In HMT Watches (supra), the complaint was one under
Section 138 of the Negotiable Instruments Act, 1881. In the said case,
this Court faulted the
High Court in having expressed its view on
disputed questions of fact in a petition under Section 482 to conclude
that an offence was not made out. Factual matters which were not
admitted between the parties could not form the basis for the High Court
to interfere.
80. In regard to the attempt, on the part of the appellant, to
persuade us to follow the judgment of this Court in Rajiv Thapar (supra),
we felt dissuaded from undertaking the said course on the following
reasoning. It is true that a perusal of the petition before the High Court
reveals that appellant has purported to take up the contention that the
website is the service offered by the Google Inc, the parent company
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of the appellant and that the services are provided by the parent
company directly to the users. It is also the case of the appellant that
service provided on the website is free and the end user can post a
blog without making any payment. The terms of service and content
policy on the website is also seen produced. Impugned order of the
High Court, however, reveals that the court understood the arguments
apparently of the appellant as follows:
“2) It is contended by the senior counsel appearing for the
petitioner/A-2 that actions of intermediaries such as Google Inc.,
which is a service provider providing platform for end users to
upload content, does not amount to publication in law and
consequently the question of holding such intermediaries liable
for defamation does not arise. Senior counsel appearing for the
petitioner placed reliance on Section 79 of the Information
Technology Act, 2000 (in short, the Act) in support of this
contention.”
81. The defence raised by the appellant, which, according to him,
consisted of documents in the form of the conditions stipulated by the
parent company in its conditions, are disputed. To expatiate, according
to the respondent, the said contention is factual. There is a case also
that they are produced without complying with the mandate of Section
65B of the Indian Evidence Act, 1872. In this regard, reliance is placed
on Anvar P.V. v. P.K. Basheer and others23. There is also definite case
for the respondent that
appellant cannot be allowed to disown its role
in the Google Groups being part of the common economic entity. It is
contended by the complainant that the appellant did not clarify by way
of answer to the query by the court as to what activities they indulge
in India. The Memorandum of Association is referred to contend that
the main objects include providing network related products or services
and applications. It is the case of the complainant further that in fact
the entire operations of Google Economic Entity, the users are provided
digital space purportedly free but are made to part with their personal
data as consideration. The said data is used for generating advertisement
revenues. The onus would be on the appellant if it seeks to dispel this
fact to lead evidence to show that the appellant does not have any role
to plea in the activities of Google. As to whether, it is Google INC,
which is responsible for the Google Groups and the appellant is not, it
23 (2014) 10 SCC 473
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is contended by the complainant, is a matter for evidence. It cannot be
determined on the basis of photocopies of documents filed with the
paper books before this Court.
82. We have noticed that the appellant appears to have produced
the Google Groups conditions even before the High Court. It is also
appeared to have taken the contention that it is Google Groups which
is an intermediary.
83. In this connection, it is our view that this is not a case where
the High Court could be invited particularly in the light of the stand of
the complainant, as noticed, to decide in favour of the appellant by holding
that it is the parent company which is the actual intermediary and not
appellant. We are not inclined in this regard to borrow any findings from
the Civil Court in proceedings under Section 482 of the Cr.PC. We must
remind ourselves also that the proceedings are at the stage where the
High Court appear to have entered a finding in favour of the appellant
in the Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908 (hereinafter referred to as ‘the CPC’, for short).
However, it is common case that both parties have filed Review
Petitions. In other words, the matter has not yet attained finality.
84. In this regard, the question, however, arises whether the
complainant accepts this version of the appellant or disputes it. We
would think that the complainant does not accepts the actual role of
the
appellant. The nature of operations of the appellant, according to
the appellant, is not clear. What is the actual relationship between the
Parent Company and appellant, is, according to the complainant, a matter
for decision on evidence being taken. In other words, the contention of
the appellant that appellant is not an intermediary and, hence, cannot
be fastened, at any rate, with criminal liability, is subject matter of
dispute.
WHETHER “SHARAT BABU DIGUMARTI V. GOVERNMENT
(NCT OF DELHI)” COMES TO THE RESCUE OF THE
APPELLANT?
85. There is need to also address an argument based on the
decision of this Court in Sharat Babu Digumarti v. Government (NCT
of Delhi)24.
24 (2017) 2 SCC 18
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86. Section 81 of the Act reads as follows:
“81. Act to have overriding effect.-The provisions of this Act shall
have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force.”
87. This Court, in Sharat Babu (supra), was dealing with a
complaint under Sections 292 and 294 of the IPC and Section 67 of
the Act. The central issue which arose for consideration was, whether
the appellant therein, who stood discharged under Section 67 of the Act,
could be proceeded under Section 292 of the IPC. Section 292 of the
Code makes it an offence to sell, hire, distribute, etc., any obscene
object, whatsoever. Other offences relating to dealing in obscene
objects, also form the subject matter of the Section. The court referred
to the definition of “electronic record” under Section 2(1)(t) of the Act
and found it was a question relating to electronic record. Thereafter,
the court referred to Section 67 of the Act which penalises publishing
or transmitting obscene material in electronic form. Section 67B
punishes and penalises publishing or transmitting of material depicting
children in sexually explicit act, etc., in electronic form.
88. The argument of the appellant, thus, is seen noted as
hereunder:
“29. We have referred to the aforesaid aspect as it has been
argued by Dr Singhvi that the appellant is protected under the
said provision, even if the entire allegations are accepted.
According to him, once the factum of
electronic record is
admitted, Section 79 of the IT Act must apply ipso facto and ipso
jure. The learned Senior Counsel has urged Section 79, as the
language would suggest and keeping in view the paradigm of
internet world where service providers of platforms do not control
and indeed cannot control the acts/omissions of primary,
secondary and tertiary users of such internet platforms, protects
the intermediary till he has the actual knowledge. He would
contend that the Act has created a separate and distinct category
called “originator” in terms of Section 2(1)(z)(a) under the IT
Act to which the protection under Section 79 of the IT Act has
been consciously not extended. Relying on the decision in Shreya
Singhal [Shreya Singhal v. Union of India, (2015) 5 SCC 1 :
(2015) 2 SCC (Cri) 449] , he has urged that the horizon has been
expanded and the effect of Section 79 of the IT Act provides
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protection to the individual since the provision has been read down
emphasising on the conception of actual knowledge. Relying on
the said provision, it is further canvassed by him that Section 79
of the IT Act gets automatically attracted to electronic forms of
publication and transmission by intermediaries, since it explicitly
uses the non obstante clauses and has an overriding effect on
any other law in force. Thus, the emphasis is on the three
provisions, namely, Sections 67, 79 and 81, and the three
provisions, according to Dr Singhvi, constitute a holistic trinity.”
89. Thereafter, the court referred to Section 81 which we have
extracted, and finally, the court held as follows:
“32. Section 81 of the IT Act also specifically provides that the
provisions of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time
being in force. All provisions will have their play and significance,
if the alleged offence pertains to offence of electronic record. It
has to be borne in mind that IT Act is a special enactment. It
has special provisions. Section 292 IPC makes offence sale of
obscene books, etc. but once the offence has a nexus or
connection with the electronic record the protection and effect
of Section 79 cannot be ignored and negated. We are inclined to
think so as it is a special provision for a specific purpose and
the Act has to be given effect to so as
to make the protection
effective and true to the legislative intent. This is the mandate
behind Section 81 of the IT Act. The additional protection granted
by the IT Act would apply.”
90. We are not inclined to accept this argument based on the
dicta laid down in Sharat Babu (supra). It is true that the offences were
alleged to have been committed at a time when Section 79 had not been
substituted, as we notice that cognizance was taken on 14.02.2006. We
may notice the reasoning in paragraph 37, which reads as follows:
“37. The aforesaid passage clearly shows that if legislative
intendment is discernible that a latter enactment shall prevail, the
same is to be interpreted in accord with the said intention. We
have already referred to the scheme of the IT Act and how
obscenity pertaining to electronic record falls under the scheme
of the Act. We have also referred to Sections 79 and 81 of the
IT Act. Once the special provisions having the overriding effect
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do cover a criminal act and the offender, he gets out of the net
of IPC and in this case, Section 292. It is apt to note here that
electronic forms of transmission are covered by the IT Act,
which is a special law. It is settled position in law that a special
law shall prevail over the general and prior laws. When the Act
in various provisions deals with obscenity in electronic form, it
covers the offence under Section 292 IPC.”
91. We, in fact, notice that this Court was persuaded to place
reliance on Section 79 of the Act which was inserted as a result of the
substitution with effect from 27.10.2009. The provisions of Section 79
are not seen expressly extracted or referred to by the court.
92. Section 79, even prior to its substitution, did protect the
intermediary from liability for offences under the Act. This was a case
where the appellant was sought to be prosecuted under Section 292 of
the IPC even though he had been discharged under Section 67 of the
Act. The offence was one which properly fell within the scope of
Section 67 in so far as the offending matter, was contained in an
electronic record, as defined. Therefore, it could be reasoned that it
having been found, he had not committed the offence under Section
67 of the Act, having regard to Section 81, the prosecution under Section
292 of the IPC, may not stand since special provisions have overriding
effect. That explains the statement of the law contained in paragraph
37 of the judgment,
viz., “when the Act in various provisions deals in
obscenity in other forms, it covers the offence under Section 292 of
the IPC.
93. The premise of the judgment of this Court in Sharat Babu
(supra) was that what was involved was an electronic record within
the meaning of the Act. The appellant in the said case stood discharged
under Section 67 of the Act. The reasoning, which has been upheld by
the Court, was that the special provisions contained in the Act would
override and cover a criminal act and he would get out of the net of
the IPC which in the said case was Section 292. To repeat, the appellant
stood discharged under Section 67 of the Act, and therefore, could not
be prosecuted under Section 292 of the IPC.
94. In this context, we must examine whether there is any
provision in the Act which deals with the offence of defamation
committed in the electronic form. In fact, in this regard, it is relevant
to notice the judgment of this Court in Shreya Singhal (supra).
GOOGLE INDIA PRIVATE LIMITED v.
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95. Incidentally, the learned Senior Counsel who appeared for
the appellant also appeared in the said case for some of the parties
and in the summary of arguments raised by him wherein, inter alia,
he contended that the existing provisions of the IPC and of the Act,
i.e., Section 67, 66B, 66C, 66D, 66E and 66F adequately covers various
offences. In regard to sending defamatory messages by e-mail, the
provision under the Act was shown as Section 66A and it was contended
that the provision in the IPC corresponding to Section 66A was Section
500 of the IPC. This Court dealt with the matter and held, inter alia,
as follows:
“45. “Defamation” is defined in Section 499 of the Penal Code
as follows:
“499. Defamation.—Whoever, by words either spoken or
intended to be read, or by signs or by visible representations,
makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such person, is said,
except in the cases hereinafter excepted, to defame that person.
Explanation 1.—It may amount to defamation to impute anything
to a deceased person, if the imputation would harm the reputation
of that person if living, and is intended to be hurtful to the feelings
of his family or other near relatives.
Explanation 2.—It may amount to defamation to make an
imputation concerning a company or an association or collection
of persons as
such.
Explanation 3.—An imputation in the form of an alternative or
expressed ironically, may amount to defamation.
Explanation 4.—No imputation is said to harm a person’s
reputation, unless that imputation directly or indirectly, in the
estimation of others, lowers the moral or intellectual character
of that person, or lowers the character of that person in respect
of his caste or of his calling, or lowers the credit of that person,
or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as disgraceful.”
46. It will be noticed that for something to be defamatory, injury
to reputation is a basic ingredient. Section 66-A does not concern
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itself with injury to reputation. Something may be grossly offensive
and may annoy or be inconvenient to somebody without at all
affecting his reputation. It is clear, therefore, that the section is
not aimed at defamatory statements at all.”
(Emphasis supplied)
96. At any rate, Section 66A has been declared unconstitutional
by this Court. Apart from Section 66A, there is obviously no other
provision in the Act which deals with defamation in the electronic form.
In that way, the subject of defamation would be governed by Section
500 of the IPC. Therefore, the reliance placed on Shreya
Singhal (supra) is without any basis.
ASSUMING APPELLANT IS AN INTERMEDIARY: A BRIEF
OVERVIEW OF THE LAW OF DEFAMATION
97. The next question is proceeding on the basis that it is the
appellant which is the intermediary within the meaning of the Act
whether the appellant could be foisted with liability in a case where
appellant is being proceeded against in a criminal case for having
committed the offence under Section 500 read with Section 120B of
the IPC. In this regard, let us consider the contentions of the complainant.
It is first contended that the appellant’s role in the control of Google
Groups as publisher is a question of fact. It is pointed out that Google
has control on the content being uploaded by the authors. It has full
freedom to remove any content without reference to anyone much less
court orders. Google itself recognizes that defamation is not an accepted
conduct and takes an undertaking from its users. Google cannot claim
to be mere passive technology service provider which is promoting free
speech. It provides various tools to create/edit/modify the content apart
from uploading the content. It is contended that for the purpose of
defamation, Google may have some defence till such time till they are
not aware of the defamatory content. However, once they are made
aware of the defamatory content, then, by allowing the same to continue,
refusing to exercise control as platform provider, it becomes fully liable
for the consequences of publishing defamatory material. Being a
technology giant, is not a license to break laws. It does not provide
immunity from the liability under the IPC.
98. There is an attempt by the appellant before us to contend
that even taking the averments in the posts which have been uploaded
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by the first accused, it would not amount to defamation. The essence
of the offence of defamation, as defined in Section 499, would consist
of words either spoken or intended to be read or by signs or by visible
representations making or publishing any imputation concerning any
person with the intention to harm or knowing or having reason to believe
that such imputation will harm the reputation of that person subject to
the Exceptions and Explanations which follow the main provision.
Explanation II declares that it may amount to defamation to make an
imputation concerning a company or an association or collection of
persons as such. Explanation IV reads as follows:
“Explanation 4.—No imputation is said to harm a person’s
reputation, unless that imputation directly or indirectly, in the
estimation of others, lowers the moral or intellectual character
of that person, or lowers the character of that person in respect
of his caste or of his calling, or lowers the credit of that person,
or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as disgraceful.”
99. It is undoubtedly true that the first Exception exempts from
criminal liability, statements which are true and which are required for
public good. It reads as follows:
“First Exception.—Imputation of truth which public good requires
to be made or published.—It is not defamation to impute anything
which
is true concerning any person, if it be for the public good
that the imputation should be made or published. Whether or not
it is for the public good is a question of fact.”
100. The 9th Exception may be relevant. It reads as follows:
“Ninth Exception.—Imputation made in good faith by person for
protection of his or other’s interests.—It is not defamation to
make an imputation on the character of another provided that
the imputation be made in good faith for the protection of the
interests of the person making it, or of any other person, or for
the public good. Illustrations
(a) A, a shopkeeper, says to B, who manages his business—
“Sell nothing to Z unless he pays you ready money, for
I have no opinion of his honesty”. A is within the
exception, if he has made this imputation on Z in good
faith for the protection of his own interests.
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(b) A, a Magistrate, in making a report of his own superior
officer, casts an imputation on the character of Z. Here,
if the imputation is made in good faith, and for the public
good, A is within the exception. Tenth Exception.—
Caution intended for good of person to whom conveyed
or for public good.—It is not defamation to convey a
caution, in good faith, to one person against another,
provided that such caution be intended for the good of
the person to whom it is conveyed, or of some person
in whom that person is interested, or for the public
good. COMMENTS Imputation without publication In
section 499 the words “makes or publishes any
imputation” should be interpreted as words
supplementing to each other. A maker of imputation
without publication is not liable to be punished under that
section; Bilal Ahmed Kaloo v. State of Andhra Pradesh,
(1997) 7 Supreme Today 127.”
101. 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 do not constitute defamation. This is for the reason
that such an exercise would be out of bounds in the facts of this case,
in particular, in a petition filed under Section 482 of the Cr.PC. As to
whether it constitute defamation and as to whether it falls in any of
the Explanations/Exceptions, would be all matters to be decided by the
court.
102. The question which remains is everything being assumed
in favour of the complainant, viz.,
that the first accused has posted
defamatory material by uploading it on the platform and the appellant
is an intermediary providing the said platform, the argument of the
appellant is that even then, the appellant is not liable. We have noticed
the stand of the Government of India also. An intermediary provides a
platform. Millions of posts are uploaded every day. We have noticed
the definition of words “originator” and “addressee”. The case of the
appellant is that the originator in this case, the first accused, is the author
of the alleged defamatory material. Unlike an article which is written
by person ‘A’ and which is got published in a newspaper or publication
which is brought out by a person ‘B’, the case of the appellant is that
the first accused is both the originator, and therefore, the author and
he is also the publisher. Assuming everything against the appellant as
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aforesaid, the offence if at all has been committed, may have been
committed by the first accused. The appellant seeks to wash its hands
off the contents of the article as also the publication. The responsibility
for authoring the material and publishing(uploading) lies at the doorstep
of the fist accused. The appellant has no role at all in this matter. In
such circumstances, it is the case of the appellant that having regard
to the role played by the appellant, again assuming that it is the
intermediary, involved in this case, it cannot be made liable. It is the
further case of the appellant that at the most, liability may arise, if a
party aggrieved by material, which can be understood as electronic
record under the Act, approaches the appellant armed with a court
order or an authority directing it to remove the offending posts. Till then,
the appellant is not liable, in law, to take steps against the material. This
is apart from pointing out that it is incumbent upon the complaining party
to assist the intermediary by providing it with the URL so that the matter
could be located and action taken. In fact, in this case, it is pointed out
that the appellant, as a good gesture, upon receipt of complaint, written
to parent company, which, in fact, is the intermediary and the parent
company wrote back seeking URL. The actions of the appellant have
been bonafide. It has no role to play in the commission of the alleged
offence. It is in this context that appellant would contend that in law
an intermediary cannot and should not be designated as the Competent
Authority to decide upon the question as to whether any material falls
foul of the law of defamation leading to the unilateral interference with
the free exchange of ideas though the internet. Internet, it is pointed
out, is universal, and in the words of the Government of India, which
supports the appellant in this Court, a democratic medium for the free
exchange of ideas. Any conferment of unilateral power upon the
intermediary would introduce what is called the chilling effect.
SECTION 499 OF THE IPC: “MAKES OR PUBLISHES”:
DISTINCTION
103. It is important that we notice the indispensable ingredients
of the offence under Section 499 of the IPC. Section 499 reads as
follows:
“499. Defamation.—Whoever, by words either spoken or
intended to be read, or by signs or by visible representations,
makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that
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such imputation will harm, the reputation of such person, is said,
except in the cases hereinafter expected, to defame that person.”
 104. Under the said provision, the Law Giver has made the
making or publishing of any imputation with a requisite intention or
knowledge or reason to believe, as provided therein, that the imputation
will harm the reputation of any person, the essential ingredients of the
offence of defamation. What is the meaning to be attached to the words
“making of an imputation” and “publishing of an imputation”? This
question has been set out with clarity in a recent judgment which is
reported in Mohd. Abdulla Khan v. Prakash K.25. It was held as follows:
“10. An analysis of the above reveals that to constitute an offence
of defamation it requires a person to make some imputation
concerning any other person;
(i) Such imputation must be made either
(a) With intention, or
(b) Knowledge, or
(c) Having a reason to believe
that such an imputation will harm the reputation of the person
against whom the imputation is made.
(ii) Imputation could be, by
(a) Words, either spoken or written, or
(b) By making signs, or
(c) Visible representations
(iii) Imputation could be either made or published.
The difference between making of an imputation and publishing
the same is:
If ‘X’ tells ‘Y’ that ‘Y’ is a criminal — ‘X’ makes an imputation.
If ‘X’ tells ‘Z’ that ‘Y’ is a criminal — ‘X’ publishes the
imputation.
The essence of publication in the
context of Section 499 is the
communication of defamatory imputation to persons other than
25 (2018) 1 SCC 615
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the persons against whom the imputation is made. [Khima
Nand v. Emperor, 1936 SCC OnLine All 307 : 1937 Cri LJ
806; Amar Singh v. K.S. Badalia, 1964 SCC OnLine Pat 186 :
(1965) 2 Cri LJ 693]”
WHETHER SECTION 499 OF THE IPC EXHAUSTIVE OF
CRIMINAL LIBEL?
105. We may incidentally also notice an earlier judgment of this
Court in this context reported in M.C. Verghese v. T.J. Poonan and
another26. The daughter of the appellant therein, who was married to
the respondent (T.J. Poonan), received certain letters from her husband
which the appellant-father-in-law complained as containing defamatory
statements against him. The Magistrate took the view that being a
communication between husband and wife, it did not amount to
defamation as there was no publication since in the eye of law, as the
husband and wife are one. He also took the view that the
communication between the spouses was privileged under Section 122
of the Indian Evidence Act, 1872. This Court reversed the view taken
by the High Court which had upheld the view of the Magistrate though
in the interregnum the Magistrate’s view did not find favour with the
learned Sessions Judge. This Court took the view that the principle, the
husband and wife are one in the eye of law, has not been adopted in
its full force under our system and certainly not in our criminal
jurisprudence (see paragraph 7). It is, thereafter, that the Court made
following observations:
 “10. It
must be remembered that the Penal Code, 1860
exhaustively codifies the law relating to offences with which it
deals and the rules of the common law cannot be resorted to
for inventing exemptions which are not expressly enacted.
11. In Tiruvengadda Mudali v. Tripurasundari Ammal [ILR 49
Mad 728] a Full Bench of the Madras High Court observed that
the exceptions to Section 499 IPC, must be regarded as
exhaustive as to the cases which they purport to cover and
recourse can be had to the English common law to add new
grounds of exception to those contained in the statute. A person
making libellous statements in his complaint filed in Court is not
absolutely protected in a criminal proceeding for defamation, for
26 (1969) 1 SCC 37
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under the Eighth Exception and the illustration to Section 499 the
statements are privileged only when they are made in good faith.
There is therefore authority for the proposition that in determining
the criminality of an act under the Penal Code, 1860 the Courts
will not extend the scope of special exceptions by resorting to
the rule peculiar to English common law that the husband and
wife are regarded as one.”
106. No doubt, the Court did not express a final opinion.
107. In the light of this discussion, we may only reiterate that
the criminal offence of defamation under Section 499 of the IPC is
committed when a person makes a defamatory imputation which, as
explained in Mohd. Abdulla Khan (supra), would consist of the
imputation being conveyed to the person about whom the imputation is
made. A publication, on the other hand, is made when the imputation is
communicated to persons other than the persons about whom the
defamatory imputation is conveyed. A person, who makes the
defamatory imputation, could also publish the imputation and thus could
be the maker and the publisher of a defamatory imputation. On the other
hand, a person may be liable though he may not have made the
statement but he publishes it.
108. In this case, the case of the appellant appears to be that it
is indisputable that it is the first defendant who has not only authored
the statements containing imputations which are allegedly defamatory
but it is he who has also published it.
In this regard, the parties before
us have drawn our attention to case law emanating from courts other
than in India.
THE DEFAMATION ACTS IN ENGLAND: A LOOK AT SOME
DECISIONS UNDER THE SAME
109. Before we proceed to consider the case law, a bird’s
overview of the law of defamation, as contained in United Kingdom,
may be appreciated. The Defamation Act of 1952, as contained in
Sections 4,7,8,9(2) and 9(3) and Sections 16(2) and 16(3) came to be
repealed by the Defamation Act of 1996. The Defamation Act of 2013
further amended the law by declaring that a statement is not defamatory
unless its publication has caused or is likely to cause serious harm to
the reputation of the claimant which, in the case of body that trades
for profit, it was made clear that the serious harm would not arise unless
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there is caused serious financial loss or likelihood of such loss. Truth
was declared as a defence. Certain defences were introduced.
Considerations of public interest was introduced in regard to operators
of website. Section 5 was enacted, which reads as follows:
“5. Operators of websites
(1) This section applies where an action for defamation is
brought against the operator of a website in respect of
a statement posted on the website.
(2) It is a defence for the operator to show that it was not
the operator who posted the statement on the website.
(3) The defence is defeated if the claimant shows that—
(a) it was not possible for the claimant to identify the
person who posted the statement,
(b) the claimant gave the operator a notice of complaint
in relation to the statement, and
(c) the operator failed to respond to the notice of
complaint in accordance with any provision
contained in regulations.
(4) For the purposes of subsection (3)(a), it is possible for
a claimant to “identify” a person only if the claimant has
sufficient information to bring proceedings against the
person.
(5) Regulations may—
(a) make provision as to the action required to be taken
by an operator of a website in response to a notice
of complaint (which may in particular include action
relating to the identity or contact details of the person
who posted the statement and action relating to its
removal);
(b) make provision specifying a time
limit for the taking
of any such action;
(c) make provision conferring on the court a discretion
to treat action taken after the expiry of a time limit
as having been taken before the expiry;
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(d) make any other provision for the purposes of this
section.
(6) Subject to any provision made by virtue of
subsection (7), a notice of complaint is a notice which—
(a) specifies the complainant’s name,
(b) sets out the statement concerned and explains why
it is defamatory of the complainant,
(c) specifies where on the website the statement was
posted, and
(d) contains such other information as may be specified
in regulations.
(7) Regulations may make provision about the
circumstances in which a notice which is not a notice
of complaint is to be treated as a notice of complaint
for the purposes of this section or any provision made
under it.
(8) Regulations under this section—
(a) may make different provision for different
circumstances;
(b) are to be made by statutory instrument.
(9) A statutory instrument containing regulations under this
section may not be made unless a draft of the instrument
has been laid before, and approved by a resolution of,
each House of Parliament.
(10) In this section “regulations” means regulations made by
the Secretary of State.
(11) The defence under this section is defeated if the
claimant shows that the operator of the website has
acted with malice in relation to the posting of the
statement concerned.
(12) The defence under this section is not defeated by reason
only of the fact that the operator of the website
moderates the statements posted on it by others.”
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 110. There are other provisions which need not detain us. We
may, no doubt, also notice the meaning of the word “publish”, inter alia,
as contained in Section 15 of the Defamation Act, 2013:
“15. … “publish” and “publication”, in relation to a statement,
have the meaning they have for the purposes of the law of
defamation generally;”
111. The Act was to apply only to England and Wales. Certain
provisions were to apply to Scotland also.
112. It may be noticed, however, that the Defamation Act, 1996,
as indeed the Defamation Act, 1952, provided as follows:
113. In Section 20(2) of the Defamation Act, 1996, it is stated
that nothing in the said Act affected the law relating to criminal libel.
There is a similar provision in the Defamation Act, 1952. Section 17(2)
of the Defamation Act, 1952 also declared that nothing in the Act
affected the law relating to criminal libel.
114. Criminal libel, however, came to be repealed by the Coroners
and Justice Act, 2009.
115. The complainant would refer to judgment in Byrne v.
Deane27 as also Payam Tamiz v. Google Inc.28. The appellant, on the
other hand, relied upon the judgment of the Queens Bench in Bunt v.
Tilley29. There is also reference by the respondent to the judgment in
Godfrey v. Demon Internet Limited30. Let us now take these cases in
the chronological order and the context in which the matter arose and
was decided.
116. In Byrne (supra), the facts may be noticed. The
complainant
was a member of a Golf Club. The defendants were the proprietors
and the female defendant was also the Secretary. The rules of the Club,
inter alia, prohibited posting of any notice or placard in the Club
premises without the consent of the Secretary. There were certain
automatic gambling machines kept by the defendants for the use of the
members of the Club. On a complaint, the machines were removed
from the Club premises. Alleging that a defamatory verse was put up
27 (1937) 1 KB 818
28 (2013) EWCA CB 68
29 (2006) EWHC 407
30 (2001) QB 201
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on the wall of the Club, the plaintiff brought an action in libel alleging
publication by the defendants of matter defamatory to him. In short, it
was his case that the words were meant to convey that it was the
plaintiff who reported the matter to the Police which undermined his
loyalty to the members of the Club. The learned Judge, who heard the
civil action for damages, gave judgement to the plaintiff. He came to
the conclusion that the matter complained of was defamatory. He further
found that since the defendants allowed the notice to remain on the
walls of the Club, over which the defendants have complete control,
the publication of it was made with their approval and they had,
therefore, published that libel. As regards the question whether there
was publication by the defendants, the Court, by a majority, took the
view that there was publication. Greer L.J. held as follows:
“… It was a proprietary club. The difference between a
proprietary club and an ordinary club is that in a proprietary club
the proprietor or proprietors remain in possession of the club. The
two defendants are the lessees of the club and they are the
occupiers of the club premises, and the walls are their walls, and
in my judgment they allowed a defamatory statement to be put
up on their walls and to remain on their walls in a position in
which it could be read by anybody who came into the club.
Undoubtedly it must have been so read not only by people who
were members of the
club but by people who were not members
of the club, and who only came in possibly for a drink with a
member or to play a game of some sort or another.
Quite a number of illustrations have been put forward as
illustrations which give rise to similar questions to the question
that arises in this case. In my judgment the nearest case put
forward is this: assume that a defamatory poster was hung upon
the garden rail of Mr. Smith’s house which adjoins the street so
that the defamatory statement can be read by every one who
passes the house. Could it not be said that by allowing that poster
to remain hanging upon the garden rail of his house the occupier
of the house was taking part in the publication of that poster to
people passing his house, when the simplest operation in the world,
namely, cutting the rope by which the poster was hung upon the
rail and taking the poster away, would have made the poster from
that time innocuous? In my judgment the two proprietors of this
establishment by allowing the defamatory statement, if it be
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defamatory, to rest upon their wall and not to remove it, with
the knowledge that they must have had that by not removing it
it would be read by people to whom it would convey such
meaning as it had, were taking part in the publication of it. …”
117. Slesser L.J. wrote a separate opinion wherein he took the
view that complainant had failed to show publication against the male
defendant. With regard to the female defendant, it was held as follows:
“… With regard to the female defendant I think it may be said
— although it is perhaps extending the evidence of publication
rather further than has ever been done in the past in any case
which I have been able to discover — that there was some
evidence of publication on the part of the female defendant. ...”
118. Greer L.J., further held as follows:
“No notice or placard, written or printed, shall be posted in the
club premises without the consent of the secretary,” and her
evidence is to this effect, that she knew that this alleged libel
had been placed on the wall of the club. Her view was that she
could see no harm in it. She said: “I read it. It seemed to me
somebody was rather annoyed with somebody.” I think having
read it, and having dominion over the walls of the club as far as
the posting of notices was concerned, it could properly be said
that there was some evidence that she did promote and associate
herself with the continuance of the publication in the
circumstances after the date when she knew that the publication
had been made.”
119. Greene L.J., took the view that there was evidence of
publication by both the defendants. It was held as follows:
“Now, on the substantial question of publication, publication, of
course, is a question of fact, and it must depend on the
circumstances in each case whether or not publication has taken
place. It is said that as a general proposition where the act of
the person alleged to have published a libel has not been any
positive act, but has merely been the refraining from doing some
act, he cannot be guilty of publication. I am quite unable to
accept any such general proposition. It may very well be that in
some circumstances a person, by refraining from removing or
obliterating the defamatory matter, is not committing any
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publication at all. In other circumstances he may be doing so.
The test it appears to me is this: having regard to all the facts of
the case is the proper inference that by not removing the
defamatory matter the defendant really made himself responsible
for its continued presence in the place where it had been put?
I may give as an example of a case which would fall on one
side of the line: suppose somebody with a mallet and a chisel
carved on the stonework of somebody’s house something
defamatory, and carved it very deeply so that the removal of it
could only be effected by taking down the stonework and
replacing it with new stonework. In a case of that kind it appears
to me that it would be very difficult, if not indeed impossible, to
draw the inference that the volition of the owner of the house
had anything to do with the continued presence of that inscription
on his stonework. The circumstance that to remove it would
require very great trouble and expense would be sufficient to
answer any such aspersion.
On the other hand you have a case such as the present where
the removal of this particular notice was a perfectly simple and
easy thing to do involving no trouble whatsoever. The defendants,
having the power of removing it and the right to remove it, and
being able to do it without any difficulty at all, and knowing that
members of the club when they came into the room would see
it, I think must be taken to have elected deliberately to leave it
there. The proper inference, therefore, in those circumstances it
seems to me is that they were consenting parties to its continued
presence on the spot where it had been put up. That being so it
seems to me that they must be taken to have consented to its
publication to each member who saw it. …”
(Emphasis supplied)
120. In Godfrey (supra), the case was a civil action. The
complainant was a Lecturer in Physics, Mathematics and Computer
Science resident in England. The defendant was an internet service
provider. On the 13th of January, 1997, some unknown person made a
post in the U.S.A. in news group soc.culture.thai and stores which was
carried on by the defendant. For about a fortnight, the posting was
available to be read by its customers. According to the complainant, it
was defamatory, inter alia, to him. It purported to emanate from the
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complainant though his name was misspelt. Complainant claimed it to
be a forgery. He sent a letter to the Managing Director of the defendant-
company about the posting being a forgery and disowning responsibility
of the same, he requested removal of the same from the server. It was
not disputed by the defendant that it could have obliterated the post
after receiving the request. The court examined the matter thereafter,
on the basis of the governing law, viz., Defamation Act, 1996. The
following discussion is relevant:
“The law
The governing statute is the Defamation Act 1996. Section 1,
which is headed “Responsibility for publication”, provides:
(1) In defamation proceedings a person has a defence if he shows
that—(a) he was not the author, editor or publisher of the
statement complained of, (b) he took reasonable care in relation
to its publication, and (c) he did not know, and had no reason to
believe, that what he did caused or contributed to the publication
of a defamatory statement.”
It should be noted that for the defence to succeed (a) and (b)
and (c) have to be established by the defendant. Section 1
continues:
“(2) For this purpose … ‘publisher’ [has] the following meanings,
which are further explained in subsection (3) … ‘publisher’
means a commercial publisher, that is, a person whose business
is issuing material to the public, or a section of the public, who
issues material containing the statement in
the course of that
business.
“(3) A person shall not be considered the author, editor or
publisher of a statement if he is only involved—(a) in printing,
producing, distributing or selling printed material containing the
statement … (c) in processing, making copies of, distributing or
selling any electronic medium in or on which the statement is
recorded, or in operating or providing any equipment, system or
service by means of which the statement is retrieved, copied,
distributed or made available in electronic form … (e) as the
operator of or provider of access to a communications system
by means of which the statement is transmitted, or made
available, by a person over whom he has no effective control.
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In a case not within paragraphs (a) to (e) the court may have
regard to those provisions by way of analogy in deciding whether
a person is to be considered the author, editor or publisher of a
statement …
“(5) In determining for the purposes of this section whether a
person took reasonable care, or had reason to believe that what
he did caused or contributed to the publication of a defamatory
statement, regard shall be had to—(a) the extent of his
responsibility for the content of the statement or the decision to
publish it, (b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the author, editor or
publisher.”
In my judgment the defendants were clearly not the publisher of
the posting defamatory of the plaintiff within the meaning of
section 1(2) and (3) and incontrovertibly can avail themselves
of section 1(1)(a). However the difficulty facing the defendants
is section 1(1)(b) and (c). After 17 January 1997, after receipt
of the plaintiff’s fax, the defendants knew of the defamatory
posting but chose not to remove it from their Usenet news
servers. In my judgment this places the defendants in an
insuperable difficulty so that they cannot avail themselves of the
defence provided by section 1.”
(Emphasis supplied)
121. The court purported to follow the judgment in Byrne (supra)
and held as follows:
“… The defendants chose to store soc.culture.thai postings within
their computers. Such postings could be accessed
on that
newsgroup. The defendants could obliterate and indeed did so
about a fortnight after receipt.”
(Emphasis supplied)
122. The court finally concluded that the plaintiffs summons to
strike out parts of the defence as disclosing no sustainable defence which
was to the effect that in common law, they were not publishers of the
internet posting. The plaintiff’s summons was allowed to strike out the
defence.
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123. Now, we may turn to Bunt (supra) decided on 10.03.2006
by the Queen’s Bench Division of the High Court. Defendants 4 to 6
in the civil proceeding were internet service providers. The service
providers applied under Civil Procedure Rules (CPR) 3.4(2) and (CPR)
24 for an order to the High Court. The claim of the plaintiff was based
on the allegation that the individual defendants published the offending
words through the services provided by the internet service providers.
In paragraph 7, the Court considered it necessary to consider the
defence relied upon by the parties which, in fact, was admissible for
the purpose of CPR Part 24. The court referred to the decision in
Godfrey (supra). The court also held, inter alia, as follows:
“15. Publication is a question of fact, and it must depend on the
circumstances of each case whether or not publication has taken
place: see e g Byrne v Deane [1937] 1 KB 818, 837–838, per
Greene LJ. The analogies that were held to be inappropriate
in Godfrey v Demon Internet Ltd might yet be upheld where
the facts do not disclose onward transmission with knowledge
of the defamatory content. As Dr Collins observes in The Law
of Defamation and the Internet, para 15.43:
“Mere conduit intermediaries who carry particular Internet
communications from one computer to another … are
analogous to postal services and telephone carriers in the
sense that they facilitate communications, without
playing any
part in the creation or preparation of their content, and almost
always without actual knowledge of the content.”
Such an approach would tend to suggest that at common law
such intermediaries should not be regarded as responsible for
publication. Indeed, that is consistent with the approach
in Lunney where the New York Court of Appeals drew an
analogy between an ISP and a telephone company “which one
neither wants nor expects to superintend the content of his
subscriber’s conversations”.
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22. I have little doubt, however, that to impose legal responsibility
upon anyone under the common law for the publication of words
it is essential to demonstrate a degree of awareness or at least
an assumption of general responsibility, such as has long been
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recognised in the context of editorial responsibility. As Lord Morris
commented in McLeod v St Aubyn [1899] AC 549, 562: “A
printer and publisher intends to publish, and so intending cannot
plead as a justification that he did not know the contents. The
appellant in this case never intended to publish.” In that case the
relevant publication consisted in handing over an unread copy of
a newspaper for return the following day. It was held that there
was no sufficient degree of awareness or intention to impose
legal responsibility for that “publication”.
23. Of course, to be liable for a defamatory publication it is not
always necessary to be aware of the defamatory content, still
less of its legal significance. Editors and publishers are often fixed
with responsibility notwithstanding such lack of knowledge. On
the other hand, for a person to be held responsible there must
be knowing involvement in the process of publication of the
relevant words . It is not enough that a person merely plays a
passive instrumental role in the process. (See also in this
context Emmens v Pottle (1885) 16 QBD 354, 357, per Lord
Esher MR.)
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30. In so far as the claimant seeks support in Godfrey Demon
Internet Ltd [2001] QB 201, there are plainly significant
distinctions. Morland J deprived the ISP in that case from
protection under section 1 of the 1996 Act because it had
continued publication of the same defamatory statements after
Mr Godfrey’s letter had been
received, asking for them to be
removed from the Usenet news server. Here, by contrast, the
claimant is relying upon separate postings. In these there is no
reference to batteries, but rather to suggestions of fraud and
“kiddie porn”. There are no pleaded facts to suggest any knowing
participation by AOL in the publication of these words.
31. Ms Phillips accordingly submits that an ISP should not become
liable as a publisher (especially for postings on a site which it
does not host) simply because it has been previously told of
wholly unrelated allegedly defamatory statements, not necessarily
even by the same author. That is a powerful argument which is
relevant, as I have said, both to the fundamental issue of
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publication at common law and to statutory defences which I
shall have to consider later.
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36. In all the circumstances I am quite prepared to hold that there
is no realistic prospect of the claimant being able to establish that
any of the corporate defendants, in any meaningful sense,
knowingly participated in the relevant publications. His own
pleaded case is defective in this respect in any event. More
generally, I am also prepared to hold as a matter of law that an
ISP which performs no more than a passive role in facilitating
postings on the Internet cannot be deemed to be a publisher at
common law. I would not accept the claimant’s proposition that
this issue “can only be settled by a trial”, since it is a question of
law which can be determined without resolving contested issues
of fact.”
(Emphasis supplied)
124. Thereafter, the Court also referred to the Electronic
Commerce Directive (Regulations), 2002. Still further, the Court referred
in detail to the witness statement of the Director (Technical and
Operations) in AOL:
“53. There is no expert challenge to that evidence, and I have
no reason to doubt that it represents the true position. How then
does the claimant propose to overcome the protection claimed
by the fourth and fifth defendants under these Regulations? As
I have said, he relies on “simple logic”. He does not rely on any
expert report. I turn therefore to his case as clarified in the
light
of the order of Gray J.
54. It is necessary to consider para 19 of the amended particulars
of claim which advances a proposition to the effect that there is
an obligation to “gatekeep” its conduit. The nub of this submission
appears to be contained in sub-paras (i) and (j):
“(i) An ISP providing a leased line connection to a customer has
an extremely good argument under both the Defamation Act
1996 and also the Electronic Commerce Directive 2002 that it is
no more than a ‘conduit’, that it has no knowledge or control
over what passes through that ‘conduit’, and that the entire
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responsibility for what does pass through that ‘conduit’ rests with
the customer who has purchased it, as it is the customer and
not the ISP who acts as a ‘gatekeeper’ for that ‘conduit’. An
ISP providing a standard domestic consumer or SOHO Internet
access package to a customer has no possible hope of
successfully arguing that it is a mere ‘conduit’ and therefore
immune from that law, as all content originates from within their
own network, instead of merely passing through it in ‘Via’ fashion
from one network to another.
“(j) In these circumstances not only is the ISP most definitely
acting as sole ‘gatekeeper’ between the source of the
defamatory material and the Internet, they also provide a
bundle of other services … each of which clearly falls foul
of the other provisions of the Electronic Commerce Directive
2002 which, for example, only allows the minimum level of
cacheing technically necessary for the underlying technology
of message transmission to function.”
The notion of a “gatekeeper” appears to derive from the claimant
himself; it is nowhere to be found in the regulations.”
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77. In conclusion, I am quite satisfied that the claims against these
applicants should be struck out in accordance with CPR Pt 3,
and indeed that there would be no realistic prospect of success
on any of the causes of action. Thus the criteria under CPR Pt
24 would also be fulfilled.”
125. At this juncture, it is necessary also to refer to CPR 3.4(2):
“Power
to strike out a statement of case
3.4.(2) The court may strike out(GL) a statement of case if it
appears to the court—
(a) that the statement of case discloses no reasonable
grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s
process or is otherwise likely to obstruct the just disposal
of the proceedings; or
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(c) that there has been a failure to comply with a rule,
practice direction or court order.”
126. In Richardson (supra), decided on 02.11.2015, the claimant
sought damages in respect of publication on a Facebook profile and a
blog post on the Google blogger service. The profile and the blog post
were purportedly created by that claimant but the claimant complained
that they were fake being created by an imposter. She claimed that
both were defamatory and violated her right to respect for her private
life under Article 8 of the European Convention on Human Rights.
Proceedings were commenced against Facebook U.K. in respect of
the profile they described as the Facebook action and against Google
U.K. Limited in respect of the blog post, shown as the Google action.
The action came to be dismissed. The principle ground was that the
suit was against the company which was not responsible for the
publication which meant that she had prosecuted the case against the
wrong defendant. In appeal, she cited certain issues to be referred to
the Court of Justice of the European Union. The Court referred to Bunt
(supra), Godfrey (supra) and Byrne (supra). The Court held as follows:
“32. The underlying rationale of the decision in Byrne v Deane,
that the defendants were responsible for publication, was that
they were in control of the notice board and had the power to
act so as to remove a posting by a third party which was
unauthorised and wrongful; by failing to exercise that power in
the knowledge of the posting they became liable for its continued
publication. This rationale is plainly capable of applying to some
of those involved in the provision of internet services and social
media platforms.”
(Emphasis supplied)
127. Thereafter, the Court went on to notice that the Defamation
Act, 1996, mitigated the rigor of the common law principles by providing
a defence for those who by application of those principles were
publishers of common law. Court further went on to hold that internet
service providers and others are not responsible for publication
according to the common law principles discussed, that is to say, who
were not publishers at common law, had no need to take resort under
the Defamation Act. The court went on to refer to Defamation Act,
2013 which came into force on 01.01.2014. Further, the court held as
follows:
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“39. The pleading acknowledges on its face that Facebook Inc
“owns” the Facebook Service and the associated website. It
appears to adopt the statement in the terms of service that
Facebook Ireland Ltd is, according to the terms of service,
responsible for processing data outside the US and Canada. So
far as FBUK is concerned, there is an allegation that it was
notified of the offending postings. However, the pleading wholly
fails to advance against FBUK any clear or coherent case that
it has or had any form of control over any aspect of the content
of the Facebook Service, let alone the Profile. The allegation that
FBUK was notified of the claimant’s complaint goes beyond
what is alleged earlier in the pleading, where notification is said
to have been given to “the Facebook Service” and “Facebook”.
It also appears to be factually untenable. But even if it were true
it could not, in the absence of an allegation that FBUK had the
power or ability to control content, form a proper basis for the
attribution of responsibility for publication on the basis of Byrne
v Deane principles.”
128. The court further observed that on the evidence, the claimant
had known Byrne (supra) without any prospect of success. In this
regard, the court relied on the evidence led which was to the effect
that the claim was fundamentally defective because Facebook U.K.
Limited had no involvement or responsibility for the Facebook service.
The material further was to the effect that
the Facebook service was
operated by Facebook Inc., a corporation existing under the laws of
the United States. Facebook Ireland Limited, a company organized and
existing under the laws of the Republic of Ireland has explained in its
terms of service that users outside of the United States of America
and Canada contracted with the Facebook Ireland Limited ….”
129. The material was to the effect that Facebook U.K. Limited
was a separate and distinct entity. Facebook U.K. Limited’s sole
corporate purpose is public relation, consultancy, and communications
in the United Kingdom. There was also reference to decisions of
English Courts previously finding that Facebook U.K. Limited do not
control or operate the Facebook services.
130. The court took the view that Facebook U.K. Limited
persuaded it that if there were a trial, it would inevitably demonstrate
that it was not responsible. An attempt was made by the claimant to
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draw support from Google Spain SL (supra) decision. The argument
appears to have been that on the basis of the said decision, Facebook
Inc. and its subsidiaries were to be treated as a single economic unit
and Facebook U.K. Limited should also be responsible for the
publication of the profile. The court rejected the contention. One of the
reasons given was that Google Spain SL (supra) was a decision which
was based on the scope and application of the data protection directions.
The court took the view that the decision in Google Spain SL (supra)
had nothing to say about the domestic law of responsibility of publication
in defamation. It was a matter to be determined by the common law
and the Defamation Acts. It was further found that claimant had
misunderstood the relevant aspect of the Google Spain SL (supra)
decision. It was found that the Court of Justice of European Union
(CJEU) did not hold that parent and subsidiary companies are to be
treated as a single unit. Google Spain SL (supra) revolved around the
interpretation and application of Article 4(1) of the Directive. The court
went on to hold that the controller within the meaning of the directives
was Google Inc.. In Google Spain SL (supra), court held that Google
Spain was not a data controller.
131. On the one hand, the appellant sought to draw support from
Richardson (supra) whereas, on the other hand, the complainant laid
store by Google Spain SL (supra).
We have noticed the context in which
the questions arose. As far as English decision is concerned, it was a
civil action. The material before the learned Judge who allowed the
application by Facebook U.K. Limited and Google U.K. was apparently
in terms of the procedural laws, perhaps akin to Order VII Rule 11 of
the Code of Civil Procedure, 1908. More importantly, there was material
before the court even in dismissing the claims on the application of the
defendants.
132. We are, in this case, concerned with the ambit of jurisdiction
under Section 482 of the Cr.PC. We also notice that the decision
rendered in Google Spain SL (supra) appears to have turned on the
scope of the directive as noticed in Richardson (supra).
EFFECT OF SUBSTITUTION OF SECTION 79 OF THE ACT
133. Section 79 of the Act came to be substituted with effect
from 27.10.2009. In fact, the effect of substitution of a provision has
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been dealt with by this Court in the decision in State of Rajasthan v.
Mangilal Pindwal31 :
“10. Similarly in Crawford’s Interpretation of Laws it has been
said:
“Effect of Repeal, Generally.— In the first place, an outright
repeal will destroy the effectiveness of the repealed act in futuro
and operate to destroy inchoate rights dependent on it, as a general
rule. In many cases, however, where statutes are repealed, they
continue to be the law of the period during which they were in
force with reference to numerous matters.” (pp. 640-641)
11. The observations of Lord Tenterden and Tindal, C.J. referred
in the above-mentioned passages in Craies on Statute Law also
indicate that the principle that on repeal a statute is obliterated
is subject to the exception that it exists in respect of transactions
past and closed. To the same effect is the law laid down by this
Court. (See: Qudrat Ullah v. Municipal Board [(1974) 1 SCC
202:(1974) 2 SCR 530], SCR at p. 539)
12. This means that as a result of repeal of a statute the statute
as repealed ceases to exist with effect from the date of such
repeal but the repeal does not affect the previous operation of
the law which has been repealed during the period it was
operative prior to the date of such repeal. …”
134. In this case, the complaint itself is dated 21.01.2009. The
sworn statement of Deputy Manager (Legal) of the complainant is
recorded on 27.02.2009. The sworn statement reads as follows:
“I am the
complainant herein. I am working as Deputy Manager-
legal in the complainant company. Complainant company
manufactures Asbestos Cement sheets and it is having various
manufacture units throw out India. Accused No.1 is a
coordinator of Ban Asbestos India a Group hosted by Accused
No.2 and publishes articles in the group regarding various issues
on 21st November, 2008 an article was published in A2 group as
Poisoning the system: Hindustan times. Complainant was
surprised to note that article is aimed at complainant company
and also against renowned politicians of the country i.e. Mr. G.
31 (1996)5 SCC 60/AIR 1996 SC 2181
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Venkat Swamy and Smt. Sonia Gandhi where as these people
have nothing to do with the complainant company and again on
31st July, 2008 an article was captioned A2 Group as Visaka
Asbestos Industries making gains both articles contains
defamatory statements against the complainant which is available
in the cyber space in the form of an article for world wide
audience. The complainant submits acts and deeds of the accused
not only harm the complainant company but also integrity of the
working people. Complainant humbly submits that there are other
groups like Everest Group, Ramco Group and Birla Group which
are also engaged in the same group. But the accused No.1
unnecessarily dragged the complainant and the politicians of the
country with malicious intention. The complainant further submits
that A1 trying to bring down the complainant image by running
hate campaign against the complainant through the above said
articles. After seeing this article the complainant has sent notice
dated 10.12.2008 through Registered Post which A1 returned
unserved and the Fax was received by both the accused. The
above article caused damage to the reputation of the complainant.
A1 with malafide intention to cause damage to the reputation to
complainant has published such articles. I further submit that the
acts and deeds of the accused being committed in violation of
the fundamental rights and the action on the part of the accused
in
making such defamatory statements are premeditated and
intended to lower the image cause defamation in the eyes of
public knowing fully well that the statements made there in are
false and the complainant company and others are being targeted
by the accused with an hidden agenda. It is therefore pay the
Hon’ble Court to punish the accused according to law. …”
135. 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.
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WHETHER APPELLANT NOT LIABLE AS IT IS ONLY A
SUBSIDIARY
136. As far as the question whether being a subsidiary of Google
LLC, the appellant is an independent body which is not to be mulcted
with liability, we would think it is not a matter to be gone into in Section
482 of the Cr.PC. We have noticed the stand of the Government of
India also as also of the complainant.
FINDINGS OF HIGH COURT REGARDING COMPLAINANT’S
NOTICE AND CONDUCT OF THE APPELLANT
137. In the impugned judgment, the learned Judge has proceeded
to refer to the notices, which was, according to the complaint, issued,
calling upon the appellant to remove the objectionable post. It is found
that the appellant did not move its little finger to stop dissemination of
the unlawful and objectionable material. Therefore, the appellant cannot
claim exemption under either Section 79 of the Act, as it stood originally,
or Section 79 of the Act, after the amendment which took effect from
27.10.2009. It was further found that as per Section 79(3), as amended,
the exemption cannot be applied by any court and claimed by an
intermediary in case an intermediary entered into any conspiracy in
respect thereof. It is in this regard that we may notice that 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.
There is also reference to Section
120B of the IPC besides Sections 500, 501 read with Section 34 of the
IPC. As far as the view expressed in the impugned order that the
appellant cannot claim any exemption under Section 79 of the Act after
the amendment, is concerned, we are of the view that it appears to be
in the teeth of the pronouncement of this Court in Shreya Singhal
(supra). 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 a 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.
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138. The finding by the High Court that in the case on hand, in
spite of the complainant issuing notice, bringing it to the notice of the
appellant about the dissemination of defamatory matter on the part of
the first accused through the medium of appellant, appellant did not move
its little finger to block the said material to stop dissemination and,
therefore, cannot claim exemption under Section 79 of the Act, as it
originally stood, is afflicted with two flaws. In the first place, the High
Court itself has found that Section 79, as it originally was enacted, had
nothing to do with offences with laws other than the Act. We have
also found that Section 79, as originally enacted, did not deal with the
effect of other laws. 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. Secondly, there is a case for the appellant that on receipt of
notice, the appellant, as a gesture, forwarded its complaint to its Parent
Company Google LLC which called for the details by its letter dated
06.01.2009. The complaint came to be filed on 21.01.2009. We do not
think that the High Court was justified, therefore, in entering findings
in the manner it was done. Further, the High Court has not taken into
consideration the distinction between blocking and a takedown.
139. Even Section 79,
as substituted with effect from 27.10.2009,
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, we notice that the case
in the complaint is that there was connivance between the accused.
This is not a matter which we feel could be considered to be proceeded
under Section 482 of the Cr.PC.
140. We may also notice that in the Civil Suit also, the complainant
maintains that the appellant is the service provider and it has abused
the services provided by it (see paragraph 11 of the plaint). Appellant
is, undoubtedly, the second defendant whereas Google Inc. has also
been made a party as third defendant. We say this as appellant has a
case that in the Civil Suit, the complainant has set up a case that it is
Google LLC which was the actual service provider.
PUBLICATION
141. If defamatory matter is published as to who published it, is
a question of fact. As already noted, publication involves bringing
defamatory matter to the knowledge of a person or persons other than
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the one who is defamed. We would approve of the principles laid down
by Greene L.J. in Byrne (supra) that “in some circumstances, a person
by refraining from removing or obliterating the defamatory matter, is
not committing any publication at all. In other circumstances, he may
be doing so. The test, it appears to me is this: having regard to all the
facts of the case, is the proper inference that by not removing the
defamatory matter, the defendant really made himself responsible for
its continued presence in the place where it has been put?” Whether
there is publication, indeed involves asking the question also as noted
by the learned Judge, as to whether there was power and the right to
remove any such matter. If despite such power, and also, 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 further requirement, no doubt, is indispensable, i.e., it must contain
imputations with the intention to harm or with knowledge or having
reasons to believe that it will harm the reputation of the person
concerned.
142. In this case, the substantial complaint of the complainant
appears to be based on the refusal by the appellant to remove the matter
after being notified. Publication would be the result even in the context
of a medium like the internet by the intermediary if it defies a court
order and refuses to takedown the matter. This, undoubtedly, is the
position even under the decision in Shreya Singhal (supra) which has
read down Section 79(3)(b) and the Intermediary Rules already noted.
143. In this regard, we may notice the following statement in the
complaint: -
“Complainant most humbly and respectfully submits that a notice
to withdraw such articles was issued by the Complainant through
it counsel on 09/12/2008, requesting Accused No. 1 & 2 to
withdraw the above said articles and to render unconditional
apology and to pay a compensation of Rs.20.00 Cr. (Rupees
Twenty Crores only) jointly and severally for the damage cause
to Complainant’s reputation, within 15 days from the date of the
receipt of the notice. In the said notice the Complainant also
invited Accused No. 1 to visit the plants of the Complainant and
requested to observe the way in which the products are
manufactured and then come to a conclusion based on facts and
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science, office copy of the notice is filed herewith for kind perusal
of this Hon’ble Court. The Notice was sent under Registered
Post with Acknowledgment Due (R.P.A.) on 10/12/2008, the
receipt of R.P.A.D. is filed herewith for kind perusal of this
Hon’ble Court.
Complainant most humbly and respectfully submits that through
the said notice, the accused were reminded that their acts
tantamount to the offence punishable under Section 1208, 500
& 501 of Indian Penal Code. The R.P.A.D. Notice sent to
Accused No. 1 returned un-served as the Accused managed to
return the same as “left without address” and the same is filed
herewith for the kind perusal of this Hon’ble Court. As a
precaution, the complainant on 29.12.2008 faxed the said notice
to the accused No. 1’s Office at Delhi, receipt of Fax is filed
herewith for kind perusal of this Hon’ble Court and complainant
on 17.12.2008 faxed the said notice to the accused No. 2’s Office
at Bangalore, receipt of the fax is filed herewith for kind perusal
of this Hon’ble Court. Notice sent to the Bangalore Office of
the Accused No. 2 was duly served and the acknowledgment
card is filed herewith as a proof of the same for the kind perusal
of this Hon’ble Court.”
We have also noticed that in the statement given by the Officer
of the complaint before the Magistrate, there is reference to the dispatch
of the notice.
144. As noted by us, in answering the question whether there
has
been publication for the purpose of criminal libel also on the basis
that despite the defamatory matter being notified, it is not removed, the
analogy of the wall of a club or notice board of a club may not be as
such available when it comes to medium like the internet. We have
noticed that in Byrne (supra), the test would also be whether the party
having the power to remove the allegedly defamatory matter and also
the right to remove it and being able to do it without any difficulty defies
and rejects the request. The example of the notice board or a wall of
a club, as was the case in Byrne (supra), is not strictly available when
we are asked to apply it as such in the case of medium like internet.
145. As was noted in Bunt (supra), in Godfrey (supra), the receipt
of the letter requesting for obliterating the post was not in dispute and
more importantly that it could have obliterated the post, was again not
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in controversy. For deciding whether there is publication, we see merit
in the exposition of law made by the English Courts as aforesaid.
146. We have noticed that what is declared a crime in Section
499 of the IPC is the making or publishing of matter which defames,
as described in the Section. The making or publication must be also
accompanied with the intention or knowledge requisite as mentioned in
the Section to constitute that act a crime.
147. There was a notice, admittedly received from the
complainant by the appellant, dated 09.12.2008, calling upon the appellant
to, inter alia, remove the controversial post (See paragraph 9 of the
Petition under Section 482 of the Cr.PC). It is the appellant’s case that
since it did not control the services and as the notice did not concern
its activities, the appellant forwarded the legal notice to its Parent
Company for its response. Appellant further contended before the High
Court that the Parent Company, in turn, responded to the complainant
on 06.01.2009. Since, the notice issued by the complainant did not
denote the space and services which allegedly host the defamatory
articles, the complainant was asked to provide the exact details.
148. It is again the appellant’s case that the complainant,
however, proceeded to file the complaint on 21.01.2009. We will take
the appellant’s case as it is projected. Thereafter, we will test it with
reference to the jurisdiction under Section 482 of the Cr.PC as to
whether this is a matter which can be gone into under Section 482. To
elaborate, we hold:
As noticed by us, it can be safely concluded that the argument
of the appellant appears to be acting on the basis of the notice sent by
the complainant to the appellant, appellant did not proceed to remove
the objectionable material from the internet. The reason for doing this
is that according to the appellant, appellant is not the intermediary and
the intermediary is the Parent Company and, accordingly, it forwarded
the complaint of the complainant in the notice dated 09.12.2008 to its
Parent Company. It may not be possible for this Court to find that the
High Court was wrong in not proceeding on the basis that the appellant
is not the intermediary. The defence set up by the appellant in this case,
is not a matter which can be gone into in proceedings under Section
482 of the Cr.PC. As things stand, in other words, consequent upon
the notice sent to the appellant by the complainant on 09.12.2008, the
appellant had refused to or has not complied with the request on the
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part of the complainant. As to whether the appellant was justified in
not complying with the request, involves answering the question as to
whether the appellant was the intermediary, which again, in turn, as
we have already held, may not be permissible in proceedings under
Section 482 of the Cr.PC. Therefore, this is not an aspect which can
form the basis for the court interfering in Section 482 of the Cr.PC.
149. As to whether there is justification for the Parent Company
in requiring the complainant to provide the URL so that the offending
post could be identified and dealt with and dehors it whether it could
remove the post, is again a matter, which in our view, it may not be
possible for the appellant to persuade us to hold, could be gone into the
proceedings under Section 482 of the Cr.PC. This also is on the basis
that the Parent Company is the intermediary. To make matters even
more clear, even proceeding on the basis that the first accused is the
originator, as defined in the Act, of the allegedly defamatory matter,
and the first accused is not only the author but is also the publisher of
allegedly defamatory matter, and again proceeding on the basis that it
is the appellant, who is the intermediary and not its Parent Company,
the refusal on the part of the appellant to remove the post, may amount
to publication on the basis of the principle enunciated in Bryne (supra)
and as applied to medium of internet in
Godfrey (supra), as later
explained, however, in Bunt (supra). 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. This is, no doubt, subject to Shreya Singhal
(supra)where it applies. It is also clear that to constitute the offence
under Section 500 of the IPC, mere publication would not suffice. As
we have noted, we cannot go into that aspect on the basis of the notice
sent on 09.12.2008 by the complainant on account of the obstacles
which we have pointed out earlier. In other words, the disowning of
the liability to remove the post is inextricably intertwined with the
appellant’s denial of it being the intermediary. Also, the question as to
whether the demand for the URL and justification for not removing,
based on the same being questions essentially relating to the facts,
cannot be gone into in Section 482 proceedings.
150. The only aspect, which really remains, is the aspect that
even accepting that the appellant is an intermediary and it had the power
otherwise to accede to the request of the appellant to remove the
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offending material, the so-called right or power of the appellant is really
not a power and the right, but is nothing but a mere illusion as assuming
such powers or exercising such a right would involve conferring of
unilateral and impermissible adjudicatory power, contrary to the regime
of fundamental right of free expression so indispensable to the continued
efficacy of the internet as an open democratic medium. In other words,
proceeding on the basis of the assumption that the appellant is the
intermediary and that it stood alerted by the complainant by letter dated
09.12.2008, the appellant has not removed the offensive posts though
it could technically remove it, therefore, it amounted to publication and
this publication attracts Section 499 of the IPC. The argument, however,
is even in Section 482 of the Cr.PC, the court must qualify the right
and the power of the appellant even assuming to be the intermediary
to act freely as it would opposed to the principles which have been
evolved in regard to the internet service provider that it is not open to
it to unilaterally decide as to what matter should be removed and it can
act so as to remove on the basis of the request only if there is a court
order. Any other view would make it a despot strangling the free flow
of ideas which is what the internet is all about.
151. The problem arises in this way however. It is while
considering a challenge to Section 79 of the Act, after it was substituted
with
effect from 27.10.2009 and considering the Rules made in the year
2011 also, and a challenge to the same also, that in Shreya Singhal
(supra), the provisions were read down to mean that Section 79(3)(b)
of the Act and Rule 3(4) of the Rules, would require an internet service
operator to takedown third-party information not on mere knowledge
of objection to its continuance but after there has been an impartial
adjudication as it were by a court. To focus more on the problem, it
must be pointed out that in the facts of this case, the acts constituting
the alleged offence under Section 499 of the IPC, were done not when
Section 79, after its substitution, was in place. The Rules were enacted
in the year 2011. In such circumstances, what we are asked to do is to
import in the principles into the factual matrix when Section 79 was
differently worded and in proceedings under Section 482 of the Cr.PC.
It is, undoubtedly, true that Article 19(1)(a) and Article 19(2) of the
Constitution of India were very much available in 2008 and 2009 though
Section 79 was in its erstwhile avtar. In other words, will it not be open
to the appellant, assuming it to be the intermediary, to contend that it
cannot be called upon to remove, defamatory matter comprised in any
third-party information without there being a court order?
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152. It is here that we would remind ourselves that we are called
upon in this case to decide the correctness and legality of the order of
the High Court passed in the proceedings under Section 482 of the
Cr.PC. This contention, as such, has not been raised. We notice, in fact,
that in the very first ground, however, before the High Court, it is
contended that the appellant has no role. It has no control over the
services provided on the website. Thereafter, it is contended that even
the employees of the Parent Company do not have the ability to remove
the content posted on the blog without an order from a court of
competent jurisdiction. It is the further case before the High Court that
under the law of United States of America which governed the
functioning of the Parent Company, it is not obliged or required to
remove any allegedly defamatory content without the court order. There
was no contention taken that on the basis that even if appellant is
assumed to be the intermediary, the continuance of the articles after a
request by the complainant to remove it, would not constitute publication
at the hands of the appellant for the reason that it will not constitute
publication as there is no court order in India. It was also, no doubt,
true that the decision of this Court in Shreya Singhal (supra) was
rendered nearly five years after the impugned judgment of the High
Court. As already noticed, what was laid down in
Shreya Singhal (supra)
was premised upon the challenge to Section 79(3)(b) which replaced
the erstwhile avtar of Section 79 and also a challenge to the Intermediary
Rules of 2011, both of which provisions came to be read down by the
court.
153. What appellant is asking this Court to do is to decide the
point which is not even raised as such before the High Court. Having
noticed the exact ground taken before the High Court, it relates to the
inability of the Parent Company to remove the post without the court
order. However, we feel that this is a question which can be, independent
of the non-availability of the protection under Section 79 of the Act in
its erstwhile avtar, pursued by the appellant. This is a matter which
we leave it open to the appellant to urge before the Court.
154. There is a complaint by the appellant that the Magistrate
did not have territorial jurisdiction over the appellant and the procedure
under Section 203 of the Cr.PC should have been followed. 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
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remand the matter back to the Magistrate, which we must indeed note,
was one of the submissions of the appellant.
155. The upshot of the above discussion is as follows:
1. 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.
2. 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.
3. 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.
156. We leave open the contentions of the parties except those
which we have finally pronounced upon. Subject to the above, the
Magistrate shall proceed with the complaint. The appeal stands disposed
of as aforesaid.
Devika Gujral
Appeal disposed of.
GOOGLE INDIA PRIVATE LIMITED v.
M/S. VISAKHA INDUSTRIES [K. M. JOSEPH, J.]