The Supreme Court, in Google India Pvt Ltd v Vishakha Industries and Anr, clarified that intermediaries cannot claim protection from defamation under section 79 of the Information Technology Act, 2000 (IT Act).
Asbestos manufacture Vishakha Industries in 2009 had filed a criminal defamation case against an individual publishing articles in a group under the name “Ban Asbestos”. As Google was hosting the group on its Google Group services, it was made a party to the defamation case.
Vishakha Industries alleged that Google failed to take down the defamatory articles after multiple requests by the company. Google approached the High Court of Andhra Pradesh to quash the complaint against it, claiming as it was an intermediary under section 79 of the IT act, it was not liable for publications made in the group.
The high court rejected the plea and held that, being an intermediary, Google had failed to bring down the defamatory posts and therefore could not claim exemption under section 79 of the IT act. Google then filed an appeal before the Supreme Court.
The Supreme Court rejected Google’s plea and directed that it undergo trial in the criminal defamation case. In its judgment, the Supreme Court observed that proceeding on the basis of the assumption that the appellant is the intermediary, and that it stood alerted by the complainant, Google has not removed the offensive posts although it could technically remove them. Therefore, it amounted to publication, and this attracts section 499 of the Indian Penal Code, 1860, which deals with defamation.
The court further explained the inapplicability of the exception of actual knowledge, as under section 79 (3)(b) of the IT Act, the exemption could be waived if the intermediary did not take the article down, even upon receiving “actual knowledge” of it being unlawful. The court further held that prior to its substitution, section 79 of the IT Act did not provide protection to intermediaries. Hence, Google, as an intermediary, could not be exempted from the liability arising out of defamation.
The dispute digest is compiled by Bhasin & Co, a corporate law firm based in New Delhi. The authors can be contacted at [email protected]. Readers should not act on the basis of this information without seeking professional legal advice.