Supreme Court Clarifies Intermediary Liability Under Pre-Amendment Section 79 of the Information Technology Act, 2000 in Criminal Defamation Proceedings

Case Overview

Case Name: Google India Private Limited Vs Visakha Industries and Another (Supreme Court of India)
Appeal Number: Criminal Appeal No. 1987 of 2014
Date of Judgment/Order: 10/12/2019
Court: Supreme Court of India

Background and Origin of the Dispute

The present matter originated from a criminal complaint instituted by M/s. Visakha Industries, a public limited company engaged in the manufacture and sale of asbestos cement sheets through seven manufacturing plants and over twenty-five marketing offices across India. The company alleged that two articles of a defamatory nature — titled "Visaka Asbestos Industries making gains" (published on 31.07.2008) and "Poisoning the system: Hindustan Times" (published on 21.11.2008) — were disseminated through the "Ban Asbestos India" group, which was hosted on a platform operated by the second accused, Google India Private Limited.

The complaint invoked Sections 120B, 500 and 501 read with Section 34 of the Indian Penal Code, 1860. Following the issuance of a notice in December 2008 demanding withdrawal of the offending content, and without receiving an adequate response, the complainant filed the criminal complaint before the XI Additional Chief Metropolitan Magistrate at Secunderabad. The Magistrate issued a summoning order against Google India Private Limited, which thereafter filed a petition under Section 482 of the Code of Criminal Procedure, 1973 before the High Court, seeking to quash the summoning order. The High Court dismissed the petition, after which Google India approached the Supreme Court.

Key Contentions Raised by Google India Private Limited

Google India advanced several arguments before the Supreme Court in support of quashing the proceedings:

On Identity and Role as Intermediary

  • The Google Groups platform was owned and operated exclusively by Google LLC (formerly Google Inc.), a company incorporated in the United States, and not by Google India Private Limited.
  • Google India maintained a separate legal identity and functioned as a non-exclusive reseller of Google LLC's advertisement program in India on a principal-to-principal basis.
  • The terms of service for Google Groups clearly identified Google LLC as the service provider, rendering it the actual intermediary.
  • Google India played no role in administering or providing services pertaining to Google Groups.
  • The legal notice issued by the complainant failed to specify any Uniform Resource Locator (URL), making it invalid for the purpose of triggering any takedown obligation.
  • Google LLC had responded to the forwarded notice and requested specific URLs, which the complainant did not furnish before filing the complaint.

On the Ingredients of Defamation

  • The first ingredient of the offence under Section 499 of the Indian Penal Code, 1860 — namely, publication of a defamatory imputation — was not established against Google India, as the originator of the content was the first accused.
  • An intermediary hosting millions of posts exercises no editorial control and cannot be attributed with knowledge of content merely by virtue of hosting it.
  • Mere passive hosting does not constitute publication, and actual knowledge cannot be ascribed to the intermediary absent a court order or communication from an appropriate governmental agency.

On the Protection Under Section 79 of the Information Technology Act, 2000

  • The original Section 79, in force at the time the alleged acts commenced, provided that no network service provider shall be liable under the Act, rules, or regulations made thereunder if the offence was committed without its knowledge or it had exercised due diligence.
  • Google India contended that this provision shielded it from liability.

On Procedural Grounds

  • The mandatory inquiry under Section 202 of the Code of Criminal Procedure, 1973 had not been conducted by the Magistrate, which was a procedural infirmity.
  • The principle that a subsidiary cannot be made liable for the acts of its parent company was also urged.

Contentions of the Complainant — M/s. Visakha Industries

The complainant submitted that: