# GOOGLE INDIA PRIVATE LIMITED v. M/S. VISAKHA INDUSTRIES

- **Citation:** [2019] 17 S.C.R. 661
- **Court:** Supreme Court of India
- **Decided:** 2019-12-10
- **Case number:** Criminal Appeal No. 1987 of 2014
- **Bench:** Ashok Bhushan, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/google-india-private-limited-v-m-s-visakha-industries-33668
- **Pages:** 81

## Headnote

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

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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] [691E-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
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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; 704A-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-AB]
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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-DE; 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.
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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] [730H; 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
2 (2015) 11 SCC 776
GOOGLE INDIA PRIVATE LIMITED v.
M/S. VISAKHA INDUSTRIES [K. M. JOSEPH, J.]
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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
GOOGLE INDIA PRIVATE LIMITED v.
M/S. VISAKHA INDUSTRIES [K. M. JOSEPH, J.]
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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 precensorship 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 afteramendment 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.