The Apex Court of India in the case of Google India Private Ltd v. Vishaka Industries, rejected the plea of immunity against liability as internet intermediary by Google India. Prior to the amendment to Section 79 of the Information Technology Act made in 2009, the protection to a network service provider was only for liability under the IT Act, this protection did not extend to liabilities arising under other enactments.
Asbestos sheets are produced by Vishakha Industries, and there were articles published by an individual “Ban Asbestos’ in group which was hosted in the Google Groups services provided by Google. Since the group was hosted by Google India, it was also made a party to the suit. It was alleged that Google India has failed to take down the articles which were hosted by the Google, even after several notices were served.
Google appealed under Section 482 of the Code of Criminal Procedure to the Andhra Pradesh High Court seeking to quash the complaint claiming that no liability over the defamatory article being an intermediary under Section 79 of the Information Technology Act should be incurred by Google. This was claimed on the basis that it was neither an author nor the publisher of the blog, in order to incur the liability.
The request to quash the proceeding was rejected by the High Court, explaining that Google as an intermediary had failed to act on the notice provided against an objectionable post when notified by the aggrieved person, hence under the IT Act Google India shall incur liability as it did not “move its little finger” even after several notices sent by the complainant. Due to the omission of acts by Google it could not claim any exemption under the IT Act.
The Supreme Court held that the matter is deemed to be decided on the basis of Section 79 of the IT Act, prior to the amendment of 2009 as the complaint was filed before the amendment. After the amendment, the scope of protected for intermediaries has increased, as it states that the intermediaries shall be granted exemption from liability ‘notwithstanding anything contained in any law for the time being in force’. The only exception to seek protection is if the intermediary had “knowledge” of the objectionable material. “Actual Knowledge” was dealt in the case of Shreya Singhal, to mean an order from court or a competent authority under law. But the precedent of Shreya Singhal Case can not be applicable as the complaint arose before the amendment.
The second contention that was raised before the Supreme Court of India was that Google was not intermediary but only a subsidiary of Google LLC. The court opted to not adjudicate this contention and said it was a matter for trial. The Supreme Court also set aside the finding made by the High Court that Google had failed to act despite receiving notice.
The Supreme Court mentioned that under Section 499 of the Indian Penal Code, which states the liability arising for criminal defamation, no immunity could be claimed in complaints which arose before the 2009 amendment in the court of law. The Bench comprising of Justice Ashok Bhushan and Justice K M Joseph stated, “We hold that Section 79 of the Act, prior to its substitution, did not protect an intermediary in regard to the offence under Section 499/500 of the IPC”.
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Judgment Link : Google India Private Limited v. M/s Vishakha Industries and Anr.