The bench of Justice Ashok Bhushan and Justice KM Joseph asked Google India on 10/12/2019 to face a trial in the 2008 defamation case. The apex court also held that the “section 79 of the Information Technology Act, 2000, prior to its substitution, did not protect an intermediary in regard to the offence under Section 499/500 of the IPC.” Prior to the substitution, the aforementioned Section exempted Network Service Provider only on the establishment of the fact that the wrong doing had been one keeping the service provider in ignorance or that he had done everything in his power to prevent the matter from happening.
The apex court was undertaking the hearing of a matter of Criminal Defamation where an article was submitted that had been published by the Coordinator of Ban Asbestos India, a group hosted by Google. The article sought to defame the complainant a public limited company that manufactured and sold asbestos cement sheets in seven manufacturing plants and more than twenty-five marketing offices all over India. The article was dated 31.07.2008 and was captioned as “Visaka Asbestos Industries making gains”. It was submitted that this private limited had been manufacturing for 70 glorious years. The complainant was singled out and Google India argued that it was not the parent company and the intermediary was the Parent Company. In this regard the Court held that originator was not only the author but also the publisher of the alleged defamatory matter.
The Court said that “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.” The court also noticed that the appellant was an intermediary and was in fact alerted on the date 09.12.2008. the appellant showed no effort in removing the post and therefore, amounting to publication, attracted Section 499 of the IPC. The court was, however, considerate regarding the matter at hand and stated Section 482 of the CrPC stipulated that “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.”
The apex court left open the option for the appellant to urge the question before the Supreme Court the question relating to the inability of the Parent Company to remove a defamatory post without the consent of the Court.
Google India Pvt. Ltd. v. Visaka Industries, CRIMINAL APPEAL NO. 1987 OF 2014