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SECTION 79 OF THE  IT ACT, PRIOR TO ITS SUBSTITUTION, DID NOT PROTECT AN INTERMEDIARY IN REGARD TO T

GOOGLE INDIA PRIVATE LIMITED  VS. M/S. VISAKHA INDUSTRIES AND ANOTHER, CRIMINAL APPEAL NO. 1987 OF 2014 – December 10, 2019

The bench comprising of Hon’ble Justice Ashok Bhushan and Hon’ble Justice K.M Joseph pronounced the judgment on criminal appeal under section 482 of Cr.P.C. 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.

FINDINGS OF THE HIGH COURT

The Hon’ble High Court dismissed the petition challenging the order passed by the Hon’ble Magistrate Court. The Hon’ble Court found that;

Section 79 of The Information Technology Act 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.

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.

Also, it was found that the appellant 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.

The Hon’ble High Court, therefore, held that the appellant can be awarded appropriate punishment though not corporal punishment.

THE CONTENTIONS OF APPELLANT IN SC

The learned counsel for the appellant contended that services on google groups are not provided by the appellant. The legal notice sent by the complainant did not make reference to any specific URL. Therefore, the notice was invalid.

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 the absence of any connivance between the author and the intermediary host.

The appellant also submitted that the Hon’ble High Court ignored that the control over the Google Group platform was of Google LLC and Appellant has its own separate legal identity. It is contended that the appellant is not an agent of Google LLC and it enjoys autonomy in its functions. The terms of service regarding Google Groups clearly indicate that the services are provided by Google LLC and not by the appellant. It is argued 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.  Reliance is placed on decisions of the Supreme Court in Rajiv Thapar and others v. Madan Lal Kapoor  and HMT Watches Limited v. M.A. Abida and another.

The appellant also 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 imputation has not been satisfied qua the appellant but only as against the first accused. Relying on Sharat Babu Digumarti v. Government (NCT of Delhi) and Shreya Singhal v. Union of India, it is sought to be contended that since no provisions of the Act are invoked, the complaint is vitiated.

A subsidiary does not become liable for the acts of its parent company, which is another contention. It is also contended that a person cannot be compelled to perform an impossible act.

CONTENTIONS OF THE COMPLAINANT

The respondent contended that 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 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 others.

STAND OF THE GOVERNMENT OF INDIA

The government of India stated that;

Right to Information is part of Article 19(1)(A) of the Constitution of India. The Internet has come to be recognized as a genuinely democratic medium. The United Nations Human Rights Council passed a non-binding Resolution in June 2016 recognizing the 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.

There is a 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 India, which has recognized this distinction.

In Secretary, Ministry of Information and Broadcasting, Government of India and others v. Cricket Association of Bengal and others, the 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. A monopoly by either Government or anyone else would not square with the free speech interest of citizens.

The government also highlighted the distinction between the pre-amendment and the after-amendment versions of Section 79 of the Act. Relied upon the decision in Gambhirsinh R. Dekare v. Falgunbhai Chimabhai Patel and another.

Regarding the extent of the liability of an intermediary, it is contended that after the amendment in 2008, the intermediary’s role as a mere facilitator of exchanging information or sales, is recognized. 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)

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 with there needing 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.

The government mentioned the decision in Richardson v. Facebook. 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.

CONTOURS OF THE JURISDICTION OF THE HIGH COURT UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE, 1973

The contours of the jurisdiction of the High Court under Section 482 is no longer res integra. Relying upon the judgment of this Court in State of Haryana and Others v. Bhajan Lal and others.

The court observed that it is not 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.

The discussion of the High Court regarding Section 79 reveals the following findings:

  1. 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.

 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.

  1. 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.

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. After the amendment, the intermediary is not liable under any Act if it satisfied certain requirements as detailed in Section 79. 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.

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.

A blocking order under Section 69A cannot be passed for criminal defamation as it does not fall under the scope of Section 69A.  Therefore, if a party is aggrieved by posting a defamatory content on the 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.

It is observed that;

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.

The next question, which is considered by the court is, whether the appellant can persuade to decide the question as to whether the appellant is an intermediary and it is Google LLC which is the intermediary.

The Court observed 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. The court does not inclined in this regard to borrow any findings from the Civil Court in proceedings under Section 482 of the Cr.PC. the court stated that the proceedings are at the stage where the High Court appears 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 a common case that both parties have filed Review Petitions. In other words, the matter has not yet attained finality.

The Court in  Sharat Babu Digumarti v. Government (NCT of Delhi) 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 an electronic record. Thereafter, the court referred to Section 67 of the Act which penalizes publishing or transmitting obscene material in electronic form. Section 67B punishes and penalizes publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.

But the Hon’ble Supreme Court was not inclined to accept this argument based on the dicta laid down in Sharat Babu.

Section 66A has been declared unconstitutional by the Supreme 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.

SECTION 499 OF THE IPC: “MAKES OR PUBLISHES”: DISTINCTION

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.

WHETHER SECTION 499 OF THE IPC EXHAUSTIVE OF CRIMINAL LIBEL?

The Supreme Court reiterated 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, 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.

The Hon’ble Court held that;

“ 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.”

Therefore, the court disposed of the appeal and stated that the Magistrate shall proceed with the complaint.

– Srutha R Elayidom

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