By Kasturika Kaumudi
A Brief Background
In 2009, a defamation case was filed by Visaka Industries Ltd. (the ‘Company’) against a group called Ban Asbestos Network India (‘BANI’), its coordinator Mr. Gopal Krishna and Google India. The Company is involved in the manufacturing and selling of asbestos cement sheets and allied products. The Company had alleged that some of the blogposts written by Mr. Gopal Krishna which were posted on the blog owned by BANI were defamatory in nature. The blogposts contained scathing criticism of the Company for allegedly enjoying political patronage and making profits from products manufactured from asbestos. The Company has also arraigned Google India as a party since the blog was hosted on the blog-publishing service of Google called Blogger.
In its petition before the metropolitan magistrate, the Company accused that Google India is guilty of the following offences under the Indian Penal Code, 1860 (‘IPC’): (i) 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.
While the case was pending before the metropolitan magistrate, Google India approached the Andhra Pradesh High Court (‘High Court’) under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of all the criminal charges levelled against it. Google India contented that it cannot be held liable for criminal defamation under IPC as it is not the publisher of the alleged defamatory content. Google India or Google Inc. are only intermediaries and service providers that act as a platform for end users to upload their content. Consequently, intermediaries like Google India or Google Inc. cannot be held liable in view of Section 79 of the Information Technology Act, 2000 (‘IT Act’) for defamation since they are neither authors nor publishers of such content.
The High Court, however, dismissed Google India’s petition through its order dated April 19, 2014. The High Court while referring to Section 79(3)(b) of the IT Act held that Google India failed to take any action either to block or stop such dissemination of objectionable material despite the Company issuing a notice and bringing the defamatory material to the knowledge of Google India. Therefore, the High Court refused to grant exemptions available to intermediaries under the IT Act to Google India either under the un-amended or the amended Section 79 of the IT Act which amendment took effect from October 27, 2009. The High Court further refused to drop the defamation charges against Google India.
Being aggrieved by the order of the High Court, Google India filed an appeal before the Supreme Court of India in 2011. Since then, the matter has been adjourned on several instances and was recently heard by a SC bench. The latest date of hearing being on November 24, 2016.
Hearing on November 24, 2016
The hearing commenced with Mr. Tushar Mehta, Additional Solicitor General of India appearing for the Union of India mentioning the matter before a two-judge bench of the Supreme Court comprising of Justice Dipak Mishra and Justice Amitava Roy. Mr. Mehta mentioned that on the last date of hearing i.e., November 10, 2016, the Court had passed an order seeking the Attorney General’s assistance in the matter. However, since the Attorney General had a conflict of interest in the matter having appeared for one of the parties previously, Mr. Mehta stated that he would be appearing on behalf of the Attorney General.
Mr. C.A. Sundaram, Senior Advocate appearing on behalf of Google India commenced his arguments by highlighting the following issues which he sought to address before the Court:
- What is the scope and extent of Section 79 of the IT Act vis-à-vis defamation cases?
- Is an intermediary a publisher for the purposes of Section 499 of IPC?
- At what stage should an intermediary remove content hosted by it? Should it remove the content pursuant to only a request made by a third party or should it take down content pursuant to an executive order or a court order?
Justice Dipak Mishra while recapitulating the previous hearings stated that the Court was of the view that an intermediary can be said to have knowledge of the objectionable content through an order passed by a court or through a government notification. Keeping the above opinion in mind, Justice Mishra reckoned that Google India should not be liable in the present case since it had not received knowledge of the objectionable material since neither a court order nor a government notification was passed in regard to the same.
Mr. Sundaram further contended that the knowledge of an intermediary should be considered only in case of receipt of an order passed by a court of law and not in case of an executive order. Justice Mishra expressed his reservations regarding this contention. To advance his argument, Mr. Sundaram referred to Section 69A of the IT Act which confers powers on the Central Government to issue directions to any Government agency or intermediary to block any information for public access through any computer resource. As per the provision, the Central Government can do so on the grounds 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”. Mr. Sundaram tried to draw a distinction between the grounds as mentioned in Section 69A and Article 19(2) of the Constitution of India which specifically provides for ‘defamation’ as a reasonable restriction to freedom of speech and expression. He contended that the executive does not have the power to issue orders for blocking of content under Section 69A of the IT Act on the ground of defamation.
He further argued that before issuing an order for blocking of content on the ground that such material is defamatory in nature, it is necessary to prove the same. According to him, such determination can only be made by a court of law. Hence, he argued that knowledge should be attributed to an intermediary only on the receipt of a judicial/court order and not a government notification or executive order.
After hearing Mr. Sundaram’s submissions on this point, Justice Mishra opined that there seems to be some substance in his contention. Justice Mishra inquired from Mr. K.V. Vishwanathan, Senior Advocate appearing for the Company whether the government can decide if the content is defamatory or not.
Mr. Vishwanathan submitted that the aspects of blocking, taking down of content and fixing liability of the intermediaries have different connotations. He further countered the argument previously made by Mr. Sundaram that Google Inc. and Google India are two separate entities. He referred to the definition of ‘intermediary’ as contained in Section 2(1)(w) of the IT Act which includes ‘search engines’. Hence, he contended that there should be no difference in treatment of Google Inc. and Google India for the purpose of the present case.
On the issue whether an intermediary can be treated as a publisher of the content, Mr Sundaram argued that an intermediary cannot be held to be a publisher of the content. However, if such intermediary fails to take any action despite having knowledge of such content through a takedown order, then it can be held to be the publisher of such content.
Mr. Vishwanathan contended that it is an internationally accepted position that an intermediary can be held to be liable as a publisher of defamatory material if it had the knowledge of such material.
Mr. Tushar Mehta as a concluding remark stated that free speech is an absolute right with reasonable restrictions contained under Article 19(2). However, situations such as the present case merit judicial intervention to decide the contours of free speech.
The next date of hearing has been fixed for January 19, 2017.
Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi