Google India to face criminal trial in alleged defamation case

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Published: December 11, 2019 3:57:20 AM

The provision exempted a 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.

Google, Google India, criminal trial, defamation case,  Information Technology Act, industry newsA bench comprising justices Ashok Bhushan and K M Joseph rejected the contention of Google India that it can’t be held liable for content posted by users on a platform which is hosted by its parent company Google.

In a major setback to Google India, the Supreme Court on Tuesday held that the company will have to face criminal trial in an alleged defamation case filed by an India construction materials company.

According to the court order, Google India can’t claim any protection for the posting of defamatory material prior to the 2009 amendment to Section 79 of the Information Technology Act, adding that whether the Indian subsidiary is an intermediary or not is a ‘matter for trial’. The apex court also clarified 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’.

Under the amended Section 79, in case the intermediary enters into any conspiracy, the exemption could not be claimed. Also, the intermediary cannot claim exemption in case he failed to expeditiously remove or disable access to the objectionable material or unlawful activity, even after receiving actual knowledge thereof.

A bench comprising justices Ashok Bhushan and K M Joseph rejected the contention of Google India that it can’t be held liable for content posted by users on a platform which is hosted by its parent company Google.

“We reject the contention of appellants (Google India) that the Andhra Pradesh high court should have acted on the Google conditions and found that the appellant (Google India) is not the intermediary. We hold that this is a matter for trial,” it said while giving a go ahead to the trial court to proceed with the complaint filed by Hyderabad-based Visaka Industries, which manufactures corrugated cement and asbestos fiber sheets.

“We set aside the findings by the HC regarding the alleged refusal of the appellant to respond to the notice to remove. We make it clear, however, that it is for the (trial) court to decide the matter on the basis of the materials placed before it, and taking into consideration, the observations contained in this judgment,” the order stated.

The top court cited the provisions of the Information Technology Act to point out that prior to amendment to Section 79, it did not protect the intermediary from the liability for posting of defamatory contents.

The provision exempted a 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.

The judgment came on an appeal filed by Google India against the HC’s 2014 judgment which held that Google India failed to take appropriate action to remove the defamatory material, in spite of receiving a take-down notice from the company.

In 2009, Visaka Industries had filed a defamation case against Ban Asbestos Network India (BANI), its coordinator Gopal Krishna and Google India alleging that the coordinator had written blog posts on its website that contained scathing criticism of the company, and thus harmed its reputation. Google India was also made a party since the blog was hosted on the blog publishing service of Google (Google Groups).

Visaka accused that Google India is guilty of criminal conspiracy (Section 120-B IPC), defamation (Section 500 IPC) and publishing defamatory content (Section 501 read with Section 34 IPC). It was further alleged that Google India failed to remove the alleged defamatory content despite being brought to its notice. Visaskha Industries contended that Google India had all the power to remove the content but did not remove it which suggests that they had consented to the publication of the defamatory content.

While the case was pending before the metropolitan magistrate, Google India approached the HC for quashing of the criminal charges on the grounds that it enjoyed safe-harbour protection under Section 79. It further argued that it was neither the publisher nor endorser of the information, and only provided a platform for dissemination of information, therefore, cannot be held liable. Google India had argued that by virtue of it being a mere subsidiary of Google US, it does not exercise any editorial control over content posted on google groups. The HC rejected Google’s stand and refused to drop the defamation charges against Google India.

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