Google India Pvt. Ltd. vs. Visaka Industries Limited
Criminal Petition No. 7207 of 2009
Decided On: 19.04.2011
The complainant in this case was engaged in business of manufacturing and selling of Asbestos cement sheets and allied products. It was alleged that one Gopala Krishna (A1) [Co-ordinator of “Ban Asbestos India”, a group hosted by Google (A2)] published certain defamatory articles aiming at a single manufacturer of Asbestos cement products viz., the complainant and renowned politicians of the country, G. Venkata Swamy and Sonia Gandhi who had nothing to do with the ownership or management of the complainant. These articles were available in the on the cyber space for world wide audience.
The offences were being perpetrated from 31.07.2009 onwards i.e., prior to the amendment to the Section 79 of the Information Technology Act, 2000 which came into effect from 27.10.2009.
Actions of intermediaries such as Google Inc., which is a service provider providing platform for end users to upload content, does not amount to publication in law and consequently the question of holding such intermediaries liable for defamation does not arise. (Section 79 of the Information Technology Act, 2000 relied upon)
Prior to Amendment –
Section 79 of the Act as it stood enacted in the year 2000 exempted network service providers from liability under the Act, rules or regulations made thereunder for any third party information or data made available by him. However, it did not exempt a network service provider from liability (much less criminal liability) for the offences under other laws or more particularly under the Indian Penal Code.
Furthermore, Section 79 exempted network service provider from liability, only on the proof that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.
After Amendment –
It is only after the amendment, non-obstante clause was added to Section 79 so as to keep the application of other laws outside the purview in a fact situation covered by the said provision. Now, intermediaries like network service providers can claim exemption from application of any other law in respect of any third party information, data or communication link made available or hosted by them; provided they fulfill the requirements under Section 79 (2) of the Act.
Furthermore, as per amended Sub-section (3) of Section 79, the exemption under Sub-section (1) cannot be applied by any Court and cannot be claimed by any intermediary in case the, intermediary entered into any conspiracy in respect thereof. Also, the intermediary cannot claim exemption under Sub-section (1) in case they fail to expeditiously remove or disable access to the objectionable material or unlawful activity even after receiving actual knowledge thereof.
Outcome of the Case:
In the present case, in spite of the 1st Respondent issuing notice to the Petitioner about dissemination of defamatory material and unlawful activity on the part of A1 through the medium provided by A2, A-2 did not make any effort to block the defamatory content or stop dissemination of the unlawful and objectionable material. Therefore, the Andhra Pradesh High Court held that the Petitioner, A2 (Google) cannot claim any exemption either under Section 79 of the Act (as it stood originally) or Section 79 of the Act (after the amendment).