Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and KM Joseph, JJ has asked Google India to face trial in a 2008 criminal defamation matter and has held that 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. Section 79 of the IT Act, prior to its substitution, 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

The Court was hearing a matter relating to Criminal Defamation wherein an article was published by the Coordinator of Ban Asbestos India, a group hosted by Google, defaming the complainant, 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. The article dated 31.07.2008 captioned “Visaka Asbestos Industries making gains”. It was, hence, argued that the asbestos cement sheets have been manufactured for more than 70 years in India, however, the complainant was singled out though there are other groups manufacturing asbestos cement products. Google India had argued that it was not the intermediary and that the intermediary is the Parent Company.

On this the Court held that, even proceeding on the basis that the first accused is the originator, as defined in the Act, of the allegedly defamatory matter, and the first accused is not only the author but is also the publisher of allegedly defamatory matter, and again proceeding on the basis that it is the appellant, who is the intermediary and not its Parent Company, the refusal on the part of the appellant to remove the post, may amount to publication. It said,

“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.”

Considering the facts of the case, the Court noticed that proceeding on the basis of the assumption that the appellant is the intermediary and that it stood alerted by the complainant by letter dated 09.12.2008, the appellant has not removed the offensive posts though it could technically remove it, therefore, it amounted to publication and this publication attracts Section 499 of the IPC.

The Court was, however, considerate of the fact that even in Section 482 of the Cr.PC, 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 Court noted that in Shreya Singhal v. Union of India, (2015) 5 SCC 1, the provisions were read down to mean that Section 79(3)(b) of the Act and Rule 3(4) of the Rules, would require an internet service operator to takedown third-party information not on mere knowledge of objection to its continuance but after there has been an impartial adjudication as it were by a court. However, in the facts of this case, the acts constituting the alleged offence under Section 499 of the IPC, were done not when Section 79, after its substitution, was in place. The Rules were enacted in the year 2011.

“In such circumstances, what we are asked to do is to import in the principles into the factual matrix when Section 79 was differently worded and in proceedings under Section 482 of the Cr.PC.”

The Court left open to the appellant to urge before the Court the question relating to the inability of the Parent Company to remove the post without the court order. The Court, however, said that this is a question which can be, independent of the non-availability of the protection under Section 79 of the Act in its erstwhile avtar, pursued by the appellant. The Court, hence, held,

 [Google India Pvt. Ltd. v. Visaka Industries, 2019 SCC OnLine SC 1587, decided on 10.12.2019]

Hot Off The PressNews

Supreme Court: On a plea challenging the notification authorising 10 central agencies to intercept, monitor and decrypt any computer system, the Court sought Centre’s response within six weeks.

According to the Notification dated 20.12.2018, the Intelligence Bureau, Narcotics Control Bureau, Enforcement Directorate, the Central Board of Direct Taxes (for Income Tax Department), Directorate of Revenue Intelligence, Central Bureau of Investigation, National Investigation Agency, the Research and Analysis Wing, Directorate of Signal Intelligence (in service areas of J-K, North East and Assam) and Delhi Police commissioner are empowered under the Information Technology (IT) Act for computer interception and analysis.

Petitioner ML Sharma argues that the notification gives the state the right to access every communication, computer and mobile and “to use it to protect political interest and object of the present executive political party”. By way of this PIL, he has sought to prohibit the agencies from initiating any criminal proceedings, enquiry or investigation against anybody under the provisions of the IT Act based on the notification.

However, the Central government said the rules for intercepting and monitoring computer data were framed in 2009 when the Congress-led UPA was in power and its new order only notified the designated authority which can carry out such action.

(Source: PTI)

Hot Off The PressNews

As reported by media, a PIL has been filed in the Delhi High Court seeking regulation of content on online platforms such as Netflix, Amazon Prime Video, Hotstar, etc.

The PIL has been filed by an NGO named Justice for Rights Foundation for the purpose of removal of the content which is “uncertified, sexually explicit and vulgar” from the above-stated platforms as the content being streamed is in violation of the provisions of the Indian Penal Code (IPC) and the Information Technology Act.

Further, it has been stated by the petitioners that these online platforms offered vulgar, sexually explicit, pornographic, profane, virulent, religiously forbidden and morally unethical contents to attract more subscribers and generate profit.

The matter is listed for 14-11-2018.

[Source: The Pioneer]