GOOGLE INDIA PRIVATE LTD vs M/S. VISAKHA INDUSTRIES on 10 December, 2019

Kuttiyil Mathew Joseph, J.

1.The appellant is the second accused in criminal complaint filed by the first respondent (hereinafter referred to as ‘complainant’, for short). The appellant filed a Petition under Section 482 The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Signature Digitally signedCr.PC’,NotbyVerified for short), seeking to quash the order passed GULSHAN KUMAR ARORA the complaint which seeks to invoke Sections 120B, 500 and 501 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’, for short). THE COMPLAINT

2.The complainant is 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. It is further, inter alia, stated that the product is manufactured in all its plants in an environment friendly manner. The first accused is alleged to be the Coordinator of Ban Asbestos India, a group hosted by the appellant. Articles are regularly published in the said group. On 21.11.2008, an article was published. It was captioned “Poisoning the system: Hindustan Times”. The complaint targeted renowned politicians of the country who were named and who had nothing to do with the ownership and management of the company. Complainant pleads shock on seeing the article dated 31.07.2008 captioned “Visaka Asbestos Industries making gains”. It is stated that asbestos cement sheets have been manufactured for more than 70 years in India. First accused singled out the complainant though there are other groups manufacturing asbestos cement products. The relevant part, which is pertinent to the appellant is contained in paragraph-11: “11. Complainant most humbly and respectfully submits that the Accused No.1’s statement in the articles in the above mentioned group hosted by the Accused No.2 is filled with hatred towards Complainant which is defamatory in nature, and which a person of ordinary intelligence in society would believe the said statements. Indeed the said statement injured the reputation of Complainant. The act of the accused in posting certain defamatory articles in the cyber space, which is visited by innumerable internet surfers which has vide usage all over the world in who’s mind the complainant company is being caused with such defamatory false statements. The service provider like Accused No.2 has made it easier than ever before to disseminate defamatory statements to the world wide audience without taking any due care and diligence to prevent it. The Accused No.2 has abused the services provided by it, because both the articles in the group hosted by it was targeted towards a particular company which is well within the knowledge of the Accused No.2.”

3.Cause of action is mentioned at paragraph-15 and it reads as follows: “15. CAUSE OF ACTION: Cause of Action for the complainant arose on 31st July, 2008, when an article “Visaka Asbestos Industries making gains” was disseminated by accused no.1 in “Ban asbestos India” group hosted by accused no.2 and 21st November 2008 when the second article “Poisoning the system: Hindustan Times” was disseminated by the accused no.1 in “Bank Asbestos India” group hosted by accused no.2 and on 10.12.2008 when the notice to withdraw such articles was issued by the Complainant and on subsequent dates.”

4.Jurisdiction is indicated in paragraph-16 of the complaint and it read as follows: “16. JURISDICTION: The Corporate Office of the Complainant is situated at “Visaka Towers”, 1-8-303/69/3, S.P. Road, Secunderabad. Since the Corporate Office of the Complainant Company is situated within the limits of P.S. Ramgopalpet, this Hon’ble Court has got jurisdiction to try this complaint.”

5.Deputy Manager (Legal) of the complainant made his statement. Thereafter, the appellant came to be summoned. The summoning order read as follows: “SUMMONS TO AN ACCUSED PERSON (Sec.81 Cr.P.C.) In the Court of the XI A.C.M. Magistrate at Secunderabad c.c. No. 679/2009 Between: M/s. Visaka Industries … Complainant AND Mr. Gopal Krishna & others … Accused To, M/s. Google India Pvt. Ltd., 3rd Floor, Prestige Sigma, No.3, Vittal Mallya Road, Bangalore 560001. Whereas your attendance is necessary answer to Charge of U/s.500, 501 of I.P.C. r/w 34 you are hereby directed to appear in person or by pleader before the Hon’ble XI A.C.M.M. Court on the day 09.09.2009 10.30 A.M. Dated this……… day ……………… Seal Sd/-Magistrate”

6.It is the said order which came to be challenged before the High Court.

7.By the impugned judgment, the High Court has dismissed the petition. FINDINGS OF THE HIGH COURT

8.Section 79 of The Information Technology Act, 2000 (hereinafter referred to as ‘the Act’, for short), which appears to have been relied on by the appellant was found to not exempt a network service provider from liability much less criminal liability for the offences under other laws or, more particularly, under the IPC. It was further found that the above provision 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. Proof, in that regard, can be let in by leading evidence by the accused. This is a question of fact which the High Court may not go into in the petition under Section 482 of the Cr.PC.. The Court later notices the amended Section 79 of the Act which came into being with effect from 27.10.2009. It was noted that it is only under the said amendment that a non obstante clause was incorporated keeping the application of other laws outside the purview in a fact situation covered by the said provision. Under the amended Section 79, in case the intermediary enters into any conspiracy, the exemption under Section 79 of the Act could not be claimed. So also, the intermediary could not claim exemption in case he fails to expeditiously remove or disable access to the objectionable material or unlawful activity, even after receiving actual knowledge thereof.

9.The appellant, it was found, did not move its little finger to block the material or to stop dissemination of the unlawful and objectionable material in spite of the complainant issuing notice about the dissemination of defamatory material and unlawful activity on the part of the first accused. Therefore, it was found that the appellant could not claim any exemption under Section 79 of the Act, prior to its substitution, or Section 79 of the Act, after its substitution, which took effect from 27.10.2009.

10.The complaint was instituted in January, 2009. It related to an offence which was being perpetuated from 31.07.2008 onwards, i.e., since long before prior to the amendment of the said provision. It was finally found that there was no exemption of any criminal law in respect of a company which is a juristic person and which has no body that can be damned or condemned, in case found guilty. Appellant can be awarded with appropriate punishment though not corporal punishment. Finding no merit, the petition was dismissed.

11.We heard Shri Sajan Poovayya, learned senior counsel appearing on behalf of the appellant, Shri Sridhar Potaraju the learned Counsel for the complainant/first respondent-M/s. Visakha Industries and Ms. Madhavi Divan, learned Additional Solicitor General appearing on behalf of the respondents.

12.Shri Sajan Poovayya would contend that services on google groups is not provided by the appellant. In other words, the basis of the complainant that appellant is the intermediary, is completely erroneous. The legal notice sent by the complainant, did not make reference to any specific URL. The expansion of URL is Unique Reference Locator which is the address of the content on web to identify or locate the objectionable post. Therefore, the notice was invalid. The appellant, however, as a gesture, made over the said notice dated 09.12.2008 to its parent entity, i.e., Google Inc. presently Google LLC. It is Google LLC which owns the Google Group platforms. Google LLC replied to the legal notice and requested the complainant to provide specific URLs. It is without responding to the same that the complaint came to be filed. It is contended that the complaint proceeds on a mistaken premise that the appellant hosts and provides services on Google Groups. A further fallacious basis is that the intermediary and hosting service provider is expected to monitor and pre-censor publication of content on its platform. Error is alleged to underlie the assumption that hosting of services involves the fact that the intermediary host has knowledge of the content posted on a hosting platform. An independent publication by an author of any content by itself again demonstrates absence of any connivance between the author and the intermediary host. There is no case for the complainant that the appellant is the author or publisher of the allegedly defamatory articles. On the other hand, the complaint itself proceeds on the basis that it is the first accused who is the author of the articles.

13.The appellant lay store by the parallel civil proceedings between the parties. Following the legal notice issue to the appellant and to Google LLC on 21.01.2009, a civil suit was instituted against the first accused, Google LLC and the appellant.

14.The suit filed by the complainant came to be dismissed by judgment dated 17.02.2014. The complainant succeeded in the first appeal and the court decreed the suit on 29.01.2016. The appellants preferred a second appeal. The appeal came to be allowed by the High Court on 18.01.2016 by which the suit came to be dismissed against the appellant which was the second defendant. It is pointed out that the appellant has filed a review confined in nature against the same. The complainant has also filed a review.

15.Google LLC is a company incorporated under the laws of United States of America. Google LLC owns and operates the Google Groups Platforms. The appellant is the subsidiary of the Google LLC Group. Appellant has its own separate legal identity. The High Court has ignored that control over the Google Group platform was of Google LLC.

16.The learned senior counsel for the appellant drew our attention to the primary terms upon which service is rendered by Google LLC. An agreement is contemplated between a user and Google LLC. Appellant is a company registered under the Indian Companies Act having its office at Bangalore. Appellant is appointed as a nonexclusive reseller of Google LLC Ads program in India on a principal to principal basis. The appellant is engaged in business development and promotional activity for certain limited products and does not play any role in providing or administering services as regards Google Groups. It is contended that appellant is not an agent of Google LLC and it enjoys autonomy in its functions.

17.The terms of service regarding Google Groups clearly indicate that the services are provided by Google LLC and not by the appellant. It is contended that publicly available documents of an unimpeachable character or any incontrovertible evidence may be considered by the High Court in deciding a matter under Section 482 of the Cr.PC.. The Google Groups terms of service is pressed as one such document. Reliance is placed on decisions of this Court including Rajiv Thapar and others v. Madan Lal Kapoor1 and HMT Watches Limited v. M.A. Abida and another2. Such judicial notice has been taken in the civil proceedings, it is pointed out.

18.Next, it contended that the ingredients of the offence of defamation under Section 499 of the IPC have not been made out. The first ingredient being publication of an imputation has not been satisfied qua the appellant but only as against the first accused. An intermediary is neither a publisher of third-party content nor does it have knowledge of any content unless it is notified through an order of an appropriate court or a Government agency. No provision of the Act has been invoked. Relying on Sharat Babu Digumarti v. Government (NCT of Delhi)3 and Shreya Singhal v. Union of India4, it is sought to be contended that since no provisions of the Act are invoked, the complaint is vitiated. It is still further contended that there is no complaint against the actual intermediary, viz., Google LLC. It is further contended that in the context of digital platform, where millions of posts are made, no editorial control of any sort is exercised by an intermediary in the publication of any content on such platforms.

19.It is contended that mere hosting of content would be insufficient to attribute knowledge, and if does not amount to publication of content. Appellant cannot be attributed with actual knowledge to ascribe a mental element. The role is passive. The author originates the material and the author is the originator and not the intermediary. The person who accesses or reads the content again is not an intermediary but the addressee. Unless the content is brought to the actual knowledge of the intermediary, taking down the material, cannot be imposed upon the intermediary. Actual knowledge must be that which is conveyed through a court order or through an appropriate Government agency. The intermediary cannot become a private censor or arbiter of content. The appellant seeks to emphasise upon the adverse impact it would have on freedom of Online Speech and Expression guaranteed under Article 19(1)(A) of the Constitution of India.

20.The appellant also makes the point that the mandatory inquiry under Section 202 of the Cr.PC has not been made. The appellant stood arrayed as an accused denoting its office at Hyderabad, Bengaluru and Gurugram whereas the ACJM, whose territorial jurisdiction is limited to Secunderabad, is the court where the complaint was filed. Section 202 of the Cr.PC, has been observed, in its breach by the Magistrate. The decision in Abhijit Pawar v. Hemant Madhukar Nimbalkar and another5, has been enlisted in support in this regard.

21.A subsidiary does not become liable for the acts of its parent company, is another contention. It is also contended that a person cannot be compelled to perform an impossible act. CONTENTIONS OF THE COMPLAINANT

22.It is not open to the appellants to have invoked powers under Section 482 of the Cr.PC. The matter involves investigation of allegations relating to facts. It is pointed out as to whether the appellant is hosting the google group wherein the first accused has published defamatory articles is a question of fact. The question as to whether the appellant is or not an intermediary, is a question of fact. As to whether the appellant and Google LLC are managed by different entities or the same entity, is another question of fact. The respondent would dispute the contention that the documents produced by the appellant are of an unimpeachable character. The documents are sought to be relied on without complying with the mandate of Section 65B of The Indian Evidence Act, 1872. Reliance in this regard Anvar P.V. v. P.K. Basheer and others6.

23.It is further submitted that the Magistrate has a judicial discretion upon examining the complainant to proceed without recourse to the procedure under Section 202 of Cr.PC. There is no pleading of any prejudice by the appellant nor proof adduced about the same. Regarding this, reliance is placed on judgment of this Court in Shivjee Singh v. Nagendra Tiwari and others7.

24.Google hosts the Google Groups. The only question of fact is whether the appellant is in control of the said Group or it is, as claimed, controlled by its Parent Company. Hence, the issue is limited as to the role of appellant and its participation in the business of providing Google Groups platform and raising revenues for the same through advertisements, etc. apart from marketing it. The appellant, it is contended, cannot be allowed to disown its role in Google Groups. The appellant has withheld the actual nature of the activities it is carrying on in India. A party must come to court with clean hands. The Memorandum of Association itself, prima facie, shows that their main objects include providing internet related projects and/or services and applications. There is a common economic entity wherein the users are provided digital space purportedly free but are made to part with their personal data as consideration. The said data is used for generating advertisement revenues which are targeted as user profile and geographical location.

25.The role of appellant is a question of fact. Once it is put on notice, Google cannot be heard to say that it is not aware of the content. If it chooses to perpetuate the content as publisher of defamatory content, consequences under law must follow. Appellant plays a very active role in controlling advertisement. Google is an active publisher as it provides various tools to users for enabling them to create content online. STAND OF THE GOVERNMENT OF INDIA

26.Internet is an important means of expression and communication. Internet offers information on a mindboggling variety of subjects. Right to Information is part of Article 19(1)(A) of the Constitution of India. Internet has come to be recognised as a genuinely democratic medium. Communication takes place at virtually no cost. Internet also is a market place for commodities and services. The United Nations Human Rights Council passed a non-binding Resolution in June, 2016 recognizing internet as a basic Human Right. It is pointed out that Finland became the first country in 2010 which made broadband a legal right for every citizen.

27.There is distinction between publication on the internet and publication in the print media. Reference was made to the judgment of this Court in Shreya Singhal v. Union of India8, which has recognised this distinction. It is contended that there are infinite challenges that internet poses. The high speed and the high volumes render pre-censorship highly difficult. There is automatic uploading without any application of mind on the part of the website/platform.

28.In the year 2015, there were 3.5 billion people in the world who accessed the internet. On Facebook, there were three million photographs updated per day. In every minute, 510 comments and 293000 statuses are posted. In 2013, there were 200 billion tweets on Twitter. In the traditional television programmes, films and newspapers, the content is pushed to the viewer or the reader. The choice of the reader or the viewer is limited to viewing the content or reading the same. Internet, it is pointed out, works on the pull principle where it is the viewer who has complete control and he exercises his choice as to what content he would wish to view or read.

29.The internet uses public spectrum and airwaves to transmit signal. In Secretary, Ministry of Information and Broadcasting, Government of India and others v. Cricket Association of Bengal and others9, this Court took the view that the right of the listeners and the viewers and not the broadcasters, is paramount. Airwaves and frequencies are public property. Monopoly by either Government or anyone else would not square with the free speech interest of citizens.

30.The distinction between the pre-amendment and the after-amendment versions of Section 79 of the Act is highlighted. It is contended that the very definition of intermediary would reveal that it is not an editor or a publisher as understood in the context of the print media. What flows from the definition points to the role being that of a facilitator or conduit rather than a selector or editor of information. Light is sought to be sourced from the views of this Court in the decision in Gambhirsinh R. Dekare v. Falgunbhai Chimabhai Patel and another10: “18. Therefore, from the scheme of the Act it is evident that it is the Editor who controls the selection of the matter that is published in a newspaper. Further, every copy of the newspaper is required to contain the names of the owner and the Editor and once the name of the Editor is shown, he shall be held responsible in any civil and criminal proceeding. Further, in view of the interpretation clause, the presumption would be that he was the person who controlled the selection of the matter that was published in the newspaper. However, we hasten to add that this presumption under Section 7 of the Act is a rebuttable presumption and it would be deemed a sufficient evidence unless the contrary is proved. The view which we have taken finds support from the judgment of this Court in K.M. Mathew v. K.A. Abraham [(2002) 6 SCC 670 : 2002 SCC (Cri) 1480] , in which it has been held as follows: (SCC p. 676, para 20) “20. The provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than editor can also be held responsible for selecting the matter for publication in a newspaper.””

31.The aforesaid discussion was in the context of an editor under the Press and Registration of Books Act, 1867.

32.Still further, reference is made about the role attributable to the service provider of internet platforms and that of an originator in the judgment of this Court in Sharat Babu Digumarti v. Government N.C.T. of Delhi11 in Criminal Appeal No. 1222 of 2016.

33.Internet is a free platform. This is on account of free open democratic nature of the internet.

34.It is contended that there will be a chilling effect on free speech if one were to allow intermediaries to intervene merely on complaints by individuals about being defamed or being at the receiving end of the unfair reporting. If permitted, such intervention would result in privatisation of censorship which would be hazardous for free expression of ideas.

35.Regarding the extent of the liability of an intermediary, it is contended that after the amendment in 2008, intermediary’s role as a mere facilitator of exchanging information or sales, is recognised. According to Government of India, the pre-amendment situation is exemplified by the subject matter of the decision of the Delhi High Court in Avnish Bajaj v. State (N.C.T. of Delhi)12. 116 (2005) DLT 427

36.Anybody aggrieved by the posting of any defamatory matter on the internet can make a takedown reference under Section 79 of the Act. Section 69A of the Act is relied on. Section 69A gives power to the Central Government to block access by giving directions to any intermediary on being satisfied of there being need to do so in the interest of sovereignty among other factors. The matter is governed under the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009.

37.As far as the stand of the Union regarding the liability of the subsidiary of a foreign intermediary is concerned, reliance is placed on the decision of the Court of Justice of the European Union (ECJ).

38.The case of In Google Spain SL, Google Inc. v. Agencia Espanola de Proteccion de Datos (AEPD), Mario Costeja Gonzalez13, Case C-131/12, Court of Justice of European Union (ECJ), is important in this regard. In Google Spain, the ECJ recognized an individual’s right to be forgotten, enabling a person to obtain removal of 13 ECLI:EU:C:2014:317 search results which violated his/her privacy interests. The case has geographical implications: first, would such removal of content be restricted to an EU-audience, and two, does the EU court have the authority to direct foreign intermediaries to takedown content. The Court embraced the arguments put forth by Google’s opponents: (i) That Google’s search engine activities are closely related to the activity of selling advertising space, which is precisely what subsidiaries such as Google’s establishment in Spain are engaged. (ii) As a result, the processing activities related to the search engine service are also being carried out “in the context of the activities” of Google’s Spanish subsidiary. (iii) The counsels for the plaintiff, Spain and Austria, likewise emphasised the link between the search engine service and the selling of advertising space from a business model perspective; arguing that the activity of Google’s establishment in Spain should not be regarded as an ancillary activity, but rather as an integral part of the primary activity (i.e. the selling of advertisement space)(paragraphs 46 to 52).

39.The ECJ therefore considered that the activities of the search engine operator and those of its establishment are “inextricably linked”, as Google’s search engine service is closely related to the activity of selling advertisement space (paragraph 56). Specifically, the Court reasoned that, “the activities relating to the advertising space constitute the means of rendering the search engine at issue economically profitable and engine is, at the same time, the means enabling those activities to be performed.”(paragraph 56). The Court in paragraphs 53 and 54 noted that, the EU’s Data Protection Directive 95/46 “sought to prevent individuals from being deprived of the protection guaranteed by the directive and that protection from being circumvented, by prescribing a particularly broad territorial scope.” Based on these observations, the ECJ concluded that the processing relating to the search engine service should be viewed as taking place “in the context of the activities of an establishment” located on EU territory (see paragraphs 53, 54). This case recognizes that the domestic subsidiary responsible for advertising and attracting a user base could be held liable for the acts of the parent.

40.Our attention is also drawn to the decision in Richardson v. Facebook14. It is contended that however given that the foreign body may not have Indian presence, the corporate veil may be lifted to fix liability on the subsidiary, if it is established that the latter is an alter ego of the foreign company and support is sought to be drawn from the judgments of this Court in New Horizons Limited and another v. Union of India and others15 and State of U.P. and others v. Renusagar Power Company and others16. 14 (2015) EWHC 3154 (QB) CONTOURS OF THE JURISDICTION OF THE HIGH COURT UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE, 1973

41.The contours of the jurisdiction of the High Court under Section 482 is no longer res integra. We would think that it is sufficient if we only advert to the judgment of this Court in State of Haryana and others v. Bhajan Lal and others17. This Court held as follows: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 17 (1992) Supp (1) SCC 335 (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

42.As to what is the scope of the expression “rarest of rare cases” indicated in paragraph 103, we may only refer to the judgment of this Court in Jeffrey J. Diermeier and another v. State of West Bengal and another18 wherein the law laid down by a Bench of three Judges in Som Mittal v. Govt. of Karnataka19 has been referred to: “23. The purport of the expression “rarest of rare cases”, to which reference was made by Shri Venugopal, has been explained recently in Som Mittal (2) v. Govt. of Karnataka [(2008) 3 SCC 574 : (2008) 1 SCC (L&S) 910 : (2008) 2 SCC (Cri) 1] . Speaking for a Bench of three Judges, the Hon'ble the Chief Justice said: (SCC pp. 580-81, para 9) “9. When the words ‘rarest of rare cases’ are used after the words ‘sparingly and with circumspection’ while describing the scope of Section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words ‘sparingly and with circumspection’. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression ‘rarest of rare cases’ is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasise that the power under Section 482 CrPC to quash the FIR or criminal proceedings should be used sparingly and with circumspection.”

43.Applying the principles, the question would be whether the appellant had made out a case for granting relief in proceedings under Section 482 of the Cr.PC. As far as the offence of defamation is concerned, even though the offence under Section 500 is non-cognizable under the First Schedule to the Cr.PC, the matter would not be governed by paragraph 2 of the judgment of this Court in Bhajan Lal (supra) as the it is the case of a complaint and not of a Police Report. Equally, paragraph 4 of Bhajan Lal (supra) is for the same reason inapplicable. We do not think that it is a case where we could hold that proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the appellant with a view to spite him due to private and personal grudge.

44.Next, we must consider whether there is any express legal bar engrafted in any provisions of the Code or the Act governing the field to the institution and continuance of the proceedings. It is here that provisions of Section 79 of Information Technology Act, 2000 would assume significance.

45.Section 79 of the Information Technology Act, as it was enacted originally, read as follows: “Chapter XII NETWORK SERVICE PROVIDERS NOT TO BE LIABLE IN CERTAIN CASES 79. Network Service Providers not to be liable in certain cases: For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rule or regulations made thereunder for any third party information or data made available by him if he proves 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. Explanation. For the purpose of this Section, (a) “network service provider” means an intermediary; (b) “third party information” means any information dealt with by a network service provider in his capacity as an intermediary.”

46.The said provision was substituted by the Information Technology (Amendment) Act of 2008. It came into force on 27.10.2009. It reads as follows: “79 Exemption from liability of intermediary in certain cases: (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of subsections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link hosted by him. (2) The provisions of sub-section (1) shall apply if(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored; or (b) the intermediary does not(i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission (c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf (Inserted Vide ITAA 2008) (3) The provisions of sub-section (1) shall not apply if(a) the intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act (ITAA 2008) (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. Explanation:- For the purpose of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary.”

47.The High Court has contrasted the earlier avtar of Section 79 with the newly inserted provisions and held “4. … In the case on hand, in spite of the 1st respondent issuing notice bringing the petition about dissemination of defamatory material and unlawful activity on the part of A-1 through the medium of A-2, the petitioner/A-2 did not move its little finger to block the said material or to stop dissemination of the unlawful and objectionable material. Therefore, the petitioner/A-2 cannot claim any exemption either under Section 79 of the Act as it stood originally or Section 79 of the Act after the amendment which took effect from 27.10.2009. the present case in the lower court was instituted in January, 2009 relating to the offences which are being perpetrated from 31.07.2009 onwards, i.e., since long prior to the amendment of the said provision.”

48.The discussion of the High Court regarding Section 79 reveals the following findings: a. The earlier version of Section 79 kept at bay the impact of other laws. After the amendment, Section 79 affords exemption from any other law in respect of the third-party information subject to sub-Section (2) of Section 79. b. Intermediary under the extant provisions of Section 79 cannot seek refuge in Section 79 if it failed to expeditiously remove or disable access to the objectionable material or unlawful activity even after receiving actual knowledge thereof. c. In the case, it is found that in spite of the first respondent complaint issuing notice about dissemination of defamatory information on the part of A1-accused no.1-appellant did not move its little finger to block the material or to stop dissemination of unlawful and objectionable material. This conduct of the appellant disentitles it from claiming protection either under the provisions of the unamended Section 79 or under Section 79 after substitution. The offence in this case was perpetuated from 31.07.2008 onwards since long prior to the substitution.

49.At this juncture, it is apposite that we took a deeper look at what the Government of India has to say about Section 79.

50.Section 79 is a safe harbour provision. Internet intermediaries give access to host, disseminate and index content, products and services originated by third parties on the internet. There are different kinds of intermediaries. They include: i. Internet Access and Service Provider (ISP). Examples are given in this category of Airtel, Vodafone, BSNL among others; ii. Data Processing and Web Hosting Providers. Examples include Godaddy and Bigrock; iii. Internet Search Engines and Portals like Google, Yahoo and Binge; iv. E-mail hosts like gmail (Google) and yahoomail; v. Then there are instant messaging platforms such as Whatsapp, Facebook Messenger, Skype, etc.; vi. E-commerce intermediaries where the platforms do not take title to the goods being sold like Amazon India, Flipkart, etc.; vii. Internet Payment Systems and Mobile Walleters like Paytm, etc.; viii. There are also participative internet platforms.

51.The 2008 amendment introduced Chapter XII to the Information Technology Act. The amendment was in the background of the decision of the Delhi High Court in Avinash Bajaj v. State (NCT of Delhi)20.

52.Intermediaries stand on a different footing being only facilitators of exchanges of information or sales. Prior to the amendment, the exemption provision under Section 79 did not exist and, therefore, an intermediary would have been liable for any third-party information or data made available by him as seen in the Bazeed (supra). After the amendment, intermediary is not liable under any Act if it satisfied certain requirements as detailed in Section 79.

53.After referring to the decision in Shreya Singhal (supra), the Government of India has understood the position at law to be that Section 79 stands read down to mean that an intermediary would need to takedown information only upon receiving actual knowledge that a court order has been passed to remove or disable certain material and not otherwise. The further stand of the Government of India is thus there is a recognition that intermediaries and neutral 20 116/2005 DLT 427 platforms are only facilitating information. It is further pointed out on behalf of the Government of India that the interpretation placed by this Court in Shreya Singhal (supra) was not available to the High Court when it passed the impugned order in this case. Shreya Singhal makes it clear that an intermediary’s liability will not arise unless it failed to take down material upon there being actual knowledge by court order or government communication. This safeguard has been put in place to avoid chilling affect on free speech. The intermediaries would, if a contrary view is taken, stand elevated to the status of super censors and denude the internet of it unique feature of a democratic medium for all to publish, access and read any and all kinds of information.

54.Owing to the special unique characteristic of the internet, intermediaries are not in a position to know about a content which is posted on its platforms by itself and, therefore, the strict liability principle cannot be made applicable to internet intermediaries. It is the specific stand of the Government of India that even pre-amendment, an intermediary could not know the contents of what is posted on its website and, therefore, be held liable in the absence of a takedown order by a court or Governmental Agency.

55.The Government of India, it is also noticed, has perceived a distinction between blocking under Section 69A of the Information Technology Act and takedown under Section 79 of the Information Technology Act. Section 69A reads as follows: “69A, Power to issue directions for blocking for public access of any information through any computer resource (1) Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of subsections (2) for reasons to be recorded in writing, by order direct any agency of the Government or intermediary to block access by the public or cause to be blocked for access by public any information generated, transmitted, received, stored or hosted in any computer resource. (2) The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed. 3) The intermediary who fails to comply with the direction issued under subsection (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.”

56.It is pointed out that the grounds under which Government issues directions for blocking information are limited and confined to matters relating to national security, public order and the like. The power does not expand to blocking any case of defamation, contempt of court, etc. A blocking order under Section 69A cannot be passed for criminal defamation as it does not fall under the scope of Section 69A. Therefore, if a party is aggrieved by posting of a defamatory content on website, he must seek recourse to the court process for adjudication. The matter can be directed to be removed or access disabled under Section 79(3) of the Information Technology Act. Since, the Court process can be long drawn, the aggrieved party may seek an interim order before a competent court.

57.In fact, the learned Senior Counsel for the appellant did not, as such, canvass the matter on the basis of Section 79 before it was substituted. However, we deem it proper to delineate its scope in view of the fact that if there is an express legal bar to attach criminal liability upon the appellant under the Act, it would become a matter of jurisdiction. It is also the stand taken by the Government of India that there be no liability on the intermediary under Section 79 of the Act prior to the substitution as we have set out herein before.

58.It must be noted that stand of the appellant primarily has been that the appellant is not the intermediary in this case and the intermediary in this case is Google LLC. The arguments have been otherwise addressed by the appellant on the basis though that even proceeding on the basis that the appellant is treated as an intermediary, the complaint against the appellant, cannot be allowed to proceed.

59.On the question as to whether Section 79, as it stood prior to the substitution, would provide a shield to an intermediary, we would enter the following findings.

60.In our view, Section 79, before its substitution, exempted the Network Service Provider, which is defined as an intermediary, from liability under the Act, Rules or Regulations made thereunder in regard to any thirdparty information or data made available by him provided the Service Provider: 1. Proves that the offence or contravention was committed without his knowledge; 2. The Service Provider proves that he had exercised all due diligence to prevent the commissioning of such offences or contraventions.

61.This provision may be contrasted with the later avtar of Section 79 of the Act consequent upon substitution with effect from 27.10.2009. Sub-Section (1) of Section 79, in unambiguous words, declares by way of a non-obstante clause that in spite of anything contained in any law which is in force, though subject to the provisions of sub-Sections (2) and (3), an intermediary would not be liable for any third-party information, data or communication link hosted by him. The conditions are set out in sub-Section (2).

62.As we have noticed, the scope of Section 79, before its substitution, was confined to confer immunity from liability in regard to an offence under the Act or the Rules or Regulations qua third-party action or data made available. In this regard, it must be noticed that Chapter XI of the Act deals with the offences. Sections 65 to 67B deals with various offences under the Act. This is besides Sections 71, 72A, 73 and 74 of the Act. Section 79 falls under Chapter XII. Therefore, the scheme of the Act would also indicate that Section 79, as it was prior to the substitution, was indeed confined to the liability of the Network Service Provider arising out of the provisions of the Act besides, no doubt, Rules and Regulations, and it was not, in short, a bar to the complaint under Section 500 of the IPC being launched or prosecuted.

63.The complaint relates, in short, to a period, much prior to the substitution of Section 79 of the Act, which ultimately took place only with effect from 27.10.2009. The court, in Shreya Singhal (supra), was not considering the provisions of Section 79 as it stood before the substitution on 27.10.2009 which is what the High Court has focussed on to find that it was not open to the appellant to seek shelter under Section 79. No doubt, there are certain observations which have been made by the High Court regarding notice to the petitioner, which we will dwell upon.

64.We may, in fact, notice another aspect of the matter. Even, proceeding on the basis that Section 79 should engage us any further, we cannot be oblivious to an integral feature of Section 79 prior to its substitution. As we have noted, the Law Giver has given protection from liability not unconditionally. It is for the Service Provider to prove that the offence or contravention was committed without his knowledge. He is also to prove that he has exercised all due diligence to prevent the commission of such offence or contravention. We will, for the purpose of argument, assume that the offence or contravention could relate to even Section 500 of the IPC. Even then, for the protection given by the provisions, as it stood at the time when the offence alleged against the appellant was allegedly committed by it, to apply, it would become incumbent upon the appellant to prove that the offence or the contravention was committed without its knowledge and that it had taken all due diligence to prevent the commission of such offence or contravention. It may be at once noticed that in reality the scope of Section 79 of the Act, prior to the substitution, was limited to granting exemption to the Network Service Provider from any liability under the Act, Rules or Regulations made thereunder, no doubt, in regard to third-party information or data available by him. The commission of an offence under Section 500 of the IPC, would not be a liability under the Act or a Rules, or Regulations made under the Act. However, it is undoubtedly true that the scope of the protection afforded to the intermediary stands remarkably expanded with the substituted provisions of Section 79 coming into force, no doubt, subject to the conditions attached thereunder and as explained by this Court in Shreya Singhal (supra).

65.The Government of India, no doubt, has contended that the High Court did not have the benefit of judgment of this Court in Shreya Singhal (supra). We may notice that what is considered in Shreya Singhal (supra) was Section 79 after substitution. There was a challenge mounted to the constitutionality of Section 79. This Court held as follows, inter alia: “120. One of the petitioners' counsel also assailed Section 79(3)(b) to the extent that it makes the intermediary exercise its own judgment upon receiving actual knowledge that any information is being used to commit unlawful acts. Further, the expression “unlawful acts” also goes way beyond the specified subjects delineated in Article 19(2). 121. It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69-A. We have seen how under Section 69-A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary. We have also seen how there are only two ways in which a blocking order can be passed— one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court. The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69-A read with the 2009 Rules. 122. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject-matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b). 123. The learned Additional Solicitor General informed us that it is a common practice worldwide for intermediaries to have user agreements containing what is stated in Rule 3(2). However, Rule 3(4) needs to be read down in the same manner as Section 79(3)(b). The knowledge spoken of in the said sub-rule must only be through the medium of a court order. Subject to this, the Information Technology (Intermediaries Guidelines) Rules, 2011 are valid. 124.3. Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.”

66.The Court also was considering the challenge to the provisions of the Information Technology (Intermediaries Guidelines) Rules, 2011 (hereinafter referred to as ‘the Rules’ for short). The Rules were brought into force after 2011. It was made under Section 87 of the Act. Rule 3 provides for due diligence to be observed by the intermediary. It is obliged to publish the Rules and Regulations and the Privacy Policy and User Agreement. The intermediary is to intimate the user not to use certain matter which include defamatory matter. Rule 3(3) of the Rules provided that the intermediary was not to knowingly host or publish any information, inter alia, contained, as specified in sub-Rule (2). Thus, under the Rules, the intermediary could not knowingly host or publish information which was, inter alia, defamatory. Rule 3(4) of the Rules, read as follows: “3. Due diligence to he observed by intermediary — The intermediary shall observe following due diligence while discharging his duties, namely : — (4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes,”

67.It is clear that the entire discussion came to be made in the context of the challenge to the provisions of Section 79 after substitution. No doubt, there are observations, which have been made, the effect of which we shall deal with to the extent that is relevant to this case. What is relevant is, for the purpose of deciding this case, we are of the view that this may not be the case where there is an express legal bar in the form of Section 79 of the Act prior to its substitution. We cannot be unmindful of the fact that we are dealing with a criminal complaint and the question to be considered is whether the offence, as alleged in the complaint, was committed or not. WHETHER “ RAJIV THAPAR AND OTHERS V. MADAN LAL KAPOOR” WOULD APPLY?

68.The next question, which we must address is, whether the appellant can persuade us to decide the question as to whether the appellant is an intermediary and it is Google LLC which is the intermediary.

69.“Intermediary” has been defined in the Act in Section 2(1)(ua)(w), which reads as follows: “2(1)(ua)(w). "intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;”

70.Section 2(1)(ua)(za) defines the word “originator”: “2(1)(ua)(za) "originator" means a person who sends, generates, stores or transmits any electronic message; or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary;”

71.Section 2(1)(b) defines the word ‘addressee’ and it reads as follows: “(b) "addressee" means a person who is intended by the originator to receive the electronic record but does not include any intermediary;”

72.According to the appellant, this is a case where the High Court erred in not considering and answering the question as to whether the appellant is an intermediary or not. It is the case of the appellant that the appellant is only the subsidiary of Google LLC which is its parent company. It is his further submission that the High Court ought to have permitted the appellant to draw support from terms of service regarding Google Groups which convincingly establishes that the services were provided by Google LLC and not the appellant. In this regard, reliance is placed on judgments of this Court in Rajiv Thapar and others v. Madan Lal Kapoor21 and HMT Watches Ltd. v. M.A. Abida and another22. It is contended that Google Groups terms of service is a document of sterling value being of indisputable character. What is produced before us is last update seen dated 10.12.2010. Under the same, there was reference to responsibilities of the originator under the head ‘content’ your responsibilities. It is submitted that the originator, not Google, which will be liable for the content that will be uploaded, posted, disseminated, etc., which is collectively said to be posted via the service. Under appropriate conduct, it is stated as follows: “5. Appropriate Conduct You agree that you are responsible for your own conduct and communications while using the Service and for any consequences thereof. You agree to use the Service only to send and receive messages and material that are legal, proper and related to the particular Group. By way of example, and not as limitation, you agree that when using the Service, you will not:  defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;  post any inappropriate, defamatory, infringing, obscene, or unlawful Content;  post any Content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party (the “Rights”), unless you are owner of the Rights or have the permission of the owner to Post such Content;  post messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by the Group owner;  download any file Posted by another user of a Group that you know, or reasonably should know, that cannot be legally distributed in such manner;  impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is Posted;  restrict or inhibit any other user from using and enjoying the Service;  use the Service for any illegal or unauthorised purpose;  remove any copyright, trademark or other proprietary rights notices contained in or on the Service;  interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;  use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Service or collect information about users for any unauthorised purpose;  submit Content that falsely expresses or implies that such Content is sponsored or endorsed by Google;  create user accounts by automated means or under false or fraudulent pretenses;  promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or  transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature. International users agree to comply with their own local rules regarding online conduct and acceptable content, including laws regulating the export of data to the United States or your country of residence. While Google prohibits such conduct and Content in connection with the Service, you understand and agree that you nonetheless may be exposed to such conduct and/or Content and that you use the Service at your own risk.”

73.We may also notice, under the head “Propriety Rights”, “Google’s Rights”, it is mentioned as follows: “6. Proprietary Rights Google’s Rights Google and its affiliates and licensors own and retain all rights in the Service, which contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorised by Google, you may not copy, modify, publish, transmit, distribute, perform, display or sell any of Google’s proprietary information. “GOOGLE GROUPS”, are trademarks of Google.”

74.We may also notice the following under head “Advertisements”: “9. Advertisements Google Groups is an ad-supported service. As such, we display advertisements and promotions on the Service. The manner, mode and extent of advertising by Google on the Service are subject to change. You agree that Google shall not be responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such advertisers on the Service.”

75.Also, we noticed the conditions under the heading “Disclaimer of Warranties”: “11. Disclaimer of Warranties Google and its affiliates, licensors, partners, suppliers, consultants and agents (“Google Entities”) disclaim any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or Content displayed on the Service. The Google Entities disclaim any and all responsibility and liability for your conduct and for the conduct of others using the Service. THE SERVICE, AND ALL CONTENT, INFORMATION (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION OR CONTENT OBTAINED OR ACCESSED THROUGH THE SERVICE), PRODUCTS AND SERVICES INCLUDED THEREIN ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. THE GOOGLE ENTITIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW AND EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERHCNTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. Some states do not allow the exclusion or limitation of implied warranties, so the above disclaimers and exclusions may not apply to you. YOU AGREE THAT YOUR USE OF THE SERVICES ARE ENTIERLY AT YOUR OWN RISK”

76.It is further submitted that the terms of service would constitute the entire agreement between the party and Google. Under the “Google Groups Content Policy”, it was brought to our notice by the learned Counsel for the appellant that Google has a zero-tolerance policy towards the content that exploits children. Google retains the power to remove hate speech which is explained as content that promotes hate or violence towards groups based on race, ethnicity, religion, disability, gender, age, veteran status, or sexual orientation/gender identity. There is an exhortation against threatening, harassing or bullying other people using Groups. There is again the condition that groups cannot be used to encourage any illegal activities or to promote dangerous and illegal activities.

77.As far as decision in Rajiv Thapar(supra), relied upon by appellant, is concerned, it involved the following facts. The appellant therein was married to the deceased. The deceased fell ill and was admitted in the hospital. She was diagnosed with as suffering from malaria. After she was discharged, she again fell ill. The Echocardiography confirmed presence of a large hole in her heart. She succumbed to a massive heart attack. Suspecting poisoning, father of the deceased filed the complaint. The Medical Board found death due to cardiac decompensation. The CFSL Report also indicated no common poison. The Metropolitan Magistrate, who was approached by the father of the deceased, committed the case to the Sessions Court who discharged the appellant-accused. The High Court, however, set aside the order. It was in these circumstances, this Court took the following view in regard to the manner in which the matter must be approached when a party approaches High Court under Section 482 of the Cr.PC: “28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1.Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2.Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3.Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/ complainant? 30.4.Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”

78.The court also declared that the High Court must be fully satisfied about the material and that material produced by the accused must be such that the defence is based on sound, reasonable and indisputable facts.

79.In HMT Watches (supra), the complaint was one under Section 138 of the Negotiable Instruments Act, 1881. In the said case, this Court faulted the High Court in having expressed its view on disputed questions of fact in a petition under Section 482 to conclude that an offence was not made out. Factual matters which were not admitted between the parties could not form the basis for the High Court to interfere.

80.In regard to the attempt, on the part of the appellant, to persuade us to follow the judgment of this Court in Rajiv Thapar (supra), we felt dissuaded from undertaking the said course on the following reasoning. It is true that a perusal of the petition before the High Court reveals that appellant has purported to take up the contention that the website is the service offered by the Google Inc, the parent company of the appellant and that the services are provided by the parent company directly to the users. It is also the case of the appellant that service provided on the website is free and the end user can post a blog without making any payment. The terms of service and content policy on the website is also seen produced. Impugned order of the High Court, however, reveals that the court understood the arguments apparently of the appellant as follows: “2) It is contended by the senior counsel appearing for the petitioner/A-2 that 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. Senior counsel appearing for the petitioner placed reliance on Section 79 of the Information Technology Act, 2000 (in short, the Act) in support of this contention.”

81.The defence raised by the appellant, which, according to him, consisted of documents in the form of the conditions stipulated by the parent company in its conditions, are disputed. To expatiate, according to the respondent, the said contention is factual. There is a case also that they are produced without complying with the mandate of Section 65B of the Indian Evidence Act, 1872. In this regard, reliance is placed on Anvar P.V. v. P.K. Basheer and others23. There is also definite case for the respondent that appellant cannot be allowed to disown its role in the Google Groups being part of the common economic entity. It is contended by the complainant that the appellant did not clarify by way of answer to the query by the court as to what activities they indulge in India. The Memorandum of Association is referred to contend that the main objects include providing network related products or services and applications. It is the case of the complainant further that in fact the entire operations of Google Economic Entity, the users are provided digital space purportedly free but are made to part with their personal data as consideration. The said data is used for generating advertisement revenues. The onus would be on the appellant if it seeks to dispel this fact to lead evidence to show that the appellant does not have any role to plea in the activities of Google. As to whether, it is Google INC, which is responsible for the Google Groups and the appellant is not, it is contended by the complainant, is a matter for evidence. It cannot be determined on the basis of photocopies of documents filed with the paper books before this Court.

82.We have noticed that the appellant appears to have produced the Google Groups conditions even before the High Court. It is also appeared to have taken the contention that it is Google Groups which is an intermediary.

83.In this connection, it is our view that this is not a case where the High Court could be invited particularly in the light of the stand of the complainant, as noticed, to decide in favour of the appellant by holding that it is the parent company which is the actual intermediary and not appellant. We are not inclined in this regard to borrow any findings from the Civil Court in proceedings under Section 482 of the Cr.PC. We must remind ourselves also that the proceedings are at the stage where the High Court appear to have entered a finding in favour of the appellant in the Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’, for short). However, it is common case that both parties have filed Review Petitions. In other words, the matter has not yet attained finality.

84.In this regard, the question, however, arises whether the complainant accepts this version of the appellant or disputes it. We would think that the complainant does not accepts the actual role of the appellant. The nature of operations of the appellant, according to the appellant, is not clear. What is the actual relationship between the Parent Company and appellant, is, according to the complainant, a matter for decision on evidence being taken. In other words, the contention of the appellant that appellant is not an intermediary and, hence, cannot be fastened, at any rate, with criminal liability, is subject matter of dispute. WHETHER “ SHARAT BABU DIGUMARTI V. GOVERNMENT (NCT OF DELHI)” COMES TO THE RESCUE OF THE APPELLANT?

85.There is need to also address an argument based on the decision of this Court in Sharat Babu Digumarti v. Government (NCT of Delhi)24.

86.Section 81 of the Act reads as follows: “81. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.”

87.This Court, in Sharat Babu (supra), was dealing with a complaint under Sections 292 and 294 of the IPC and Section 67 of the Act. The central issue which arose for consideration was, whether the appellant therein, who stood discharged under Section 67 of the Act, could be proceeded under Section 292 of the IPC. Section 292 of the Code makes it an offence to sell, hire, distribute, etc., any obscene object, whatsoever. Other offences relating to dealing in obscene objects, also form the subject matter of the Section. The court referred to the definition of “electronic record” under Section 2(1)(t) of the Act and found it was a question relating to electronic record. Thereafter, the court referred to Section 67 of the Act which penalises publishing or transmitting obscene material in electronic form. Section 67B punishes and penalises publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.

88.The argument of the appellant, thus, is seen noted as hereunder: “29. We have referred to the aforesaid aspect as it has been argued by Dr Singhvi that the appellant is protected under the said provision, even if the entire allegations are accepted. According to him, once the factum of electronic record is admitted, Section 79 of the IT Act must apply ipso facto and ipso jure. The learned Senior Counsel has urged Section 79, as the language would suggest and keeping in view the paradigm of internet world where service providers of platforms do not control and indeed cannot control the acts/omissions of primary, secondary and tertiary users of such internet platforms, protects the intermediary till he has the actual knowledge. He would contend that the Act has created a separate and distinct category called “originator” in terms of Section 2(1)(z)(a) under the IT Act to which the protection under Section 79 of the IT Act has been consciously not extended. Relying on the decision in Shreya Singhal [Shreya Singhal v. Union of India, (2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449] , he has urged that the horizon has been expanded and the effect of Section 79 of the IT Act provides protection to the individual since the provision has been read down emphasising on the conception of actual knowledge. Relying on the said provision, it is further canvassed by him that Section 79 of the IT Act gets automatically attracted to electronic forms of publication and transmission by intermediaries, since it explicitly uses the non obstante clauses and has an overriding effect on any other law in force. Thus, the emphasis is on the three provisions, namely, Sections 67, 79 and 81, and the three provisions, according to Dr Singhvi, constitute a holistic trinity.”

89.Thereafter, the court referred to Section 81 which we have extracted, and finally, the court held as follows: “32. Section 81 of the IT Act also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.”

90.We are not inclined to accept this argument based on the dicta laid down in Sharat Babu (supra). It is true that the offences were alleged to have been committed at a time when Section 79 had not been substituted, as we notice that cognizance was taken on 14.02.2006. We may notice the reasoning in paragraph 37, which reads as follows: “37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.”

91.We, in fact, notice that this Court was persuaded to place reliance on Section 79 of the Act which was inserted as a result of the substitution with effect from 27.10.2009. The provisions of Section 79 are not seen expressly extracted or referred to by the court.

92.Section 79, even prior to its substitution, did protect the intermediary from liability for offences under the Act. This was a case where the appellant was sought to be prosecuted under Section 292 of the IPC even though he had been discharged under Section 67 of the Act. The offence was one which properly fell within the scope of Section 67 in so far as the offending matter, was contained in an electronic record, as defined. Therefore, it could be reasoned that it having been found, he had not committed the offence under Section 67 of the Act, having regard to Section 81, the prosecution under Section 292 of the IPC, may not stand since special provisions have overriding effect. That explains the statement of the law contained in paragraph 37 of the judgment, viz., “when the Act in various provisions deals in obscenity in other forms, it covers the offence under Section 292 of the IPC.

93.The premise of the judgment of this Court in Sharat Babu (supra) was that what was involved was an electronic record within the meaning of the Act. The appellant in the said case stood discharged under Section 67 of the Act. The reasoning, which has been upheld by the Court, was that the special provisions contained in the Act would override and cover a criminal act and he would get out of the net of the IPC which in the said case was Section 292. To repeat, the appellant stood discharged under Section 67 of the Act, and therefore, could not be prosecuted under Section 292 of the IPC.

94.In this context, we must examine whether there is any provision in the Act which deals with the offence of defamation committed in the electronic form. In fact, in this regard, it is relevant to notice the judgment of this Court in Shreya Singhal (supra).

95.Incidentally, the learned Senior Counsel who appeared for the appellant also appeared in the said case for some of the parties and in the summary of arguments raised by him wherein, inter alia, he contended that the existing provisions of the IPC and of the Act, i.e., Section 67, 66B, 66C, 66D, 66E and 66F adequately covers various offences. In regard to sending defamatory messages by e-mail, the provision under the Act was shown as Section 66A and it was contended that the provision in the IPC corresponding to Section 66A was Section 500 of the IPC. This Court dealt with the matter and held, inter alia, as follows: “45. “Defamation” is defined in Section 499 of the Penal Code as follows: “499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.” 46. It will be noticed that for something to be defamatory, injury to reputation is a basic ingredient. Section 66-A does not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation. It is clear, therefore, that the section is not aimed at defamatory statements at all.”

96.At any rate, Section 66A has been declared unconstitutional by this Court. Apart from Section 66A, there is obviously no other provision in the Act which deals with defamation in the electronic form. In that way, the subject of defamation would be governed by Section 500 of the IPC. Therefore, the reliance placed on Shreya Singhal (supra) is without any basis. ASSUMING APPELLANT IS AN INTERMEDIARY: A BRIEF OVERVIEW OF THE LAW OF DEFAMATION

97.The next question is proceeding on the basis that it is the appellant which is the intermediary within the meaning of the Act whether the appellant could be foisted with liability in a case where appellant is being proceeded against in a criminal case for having committed the offence under Section 500 read with Section 120B of the IPC. In this regard, let us consider the contentions of the complainant. It is first contended that the appellant’s role in the control of Google Groups as publisher is a question of fact. It is pointed out that Google has control on the content being uploaded by the authors. It has full freedom to remove any content without reference to anyone much less court orders. Google itself recognizes that defamation is not an accepted conduct and takes an undertaking from its users. Google cannot claim to be mere passive technology service provider which is promoting free speech. It provides various tools to create/edit/modify the content apart from uploading the content. It is contended that for the purpose of defamation, Google may have some defence till such time till they are not aware of the defamatory content. However, once they are made aware of the defamatory content, then, by allowing the same to continue, refusing to exercise control as platform provider, it becomes fully liable for the consequences of publishing defamatory material. Being a technology giant, is not a license to break laws. It does not provide immunity from the liability under the IPC.

98.There is an attempt by the appellant before us to contend that even taking the averments in the posts which have been uploaded by the first accused, it would not amount to defamation. The essence of the offence of defamation, as defined in Section 499, would consist of words either spoken or intended to be read or by signs or by visible representations making or publishing any imputation concerning any person with the intention to harm or knowing or having reason to believe that such imputation will harm the reputation of that person subject to the Exceptions and Explanations which follow the main provision. Explanation II declares that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation IV reads as follows: “Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.”

99.It is undoubtedly true that the first Exception

exempts from criminal liability, statements which are

true and which are required for public good. It reads

“First Exception.—Imputation of truth

which public good requires to be made or

published.—It is not defamation to impute

anything which is true concerning any

person, if it be for the public good that

the imputation should be made or

published. Whether or not it is for the

public good is a question of fact.”

100.The 9th Exception may be relevant. It reads as

follows:

“Ninth Exception.—Imputation made in

good faith by person for protection of his

or other’s interests.—It is not defamation

to make an imputation on the character of

another provided that the imputation be

made in good faith for the protection of

the interests of the person making it, or

of any other person, or for the public

good. Illustrations

(a) A, a shopkeeper, says to B, who

manages his business—“Sell nothing to Z

unless he pays you ready money, for I have

no opinion of his honesty”. A is within

the exception, if he has made this

imputation on Z in good faith for the

protection of his own interests.

(b) A, a Magistrate, in making a report of

his own superior officer, casts an

imputation on the character of Z. Here, if

the imputation is made in good faith, and

for the public good, A is within the

exception. Tenth Exception.—Caution

intended for good of person to whom

conveyed or for public good.—It is not

defamation to convey a caution, in good

faith, to one person against another,

provided that such caution be intended for

the good of the person to whom it is

conveyed, or of some person in whom that

person is interested, or for the public

good. COMMENTS Imputation without

publication In section 499 the words

“makes or publishes any imputation” should

be interpreted as words supplementing to

each other. A maker of imputation without

publication is not liable to be punished

under that section; Bilal Ahmed Kaloo v.

State of Andhra Pradesh, (1997) 7 Supreme

Today 127.”

101.We would not think that it would be appropriate,

proper or legal for the court to accept the submission

of the appellant that the post in question do not

constitute defamation. This is for the reason that such

an exercise would be out of bounds in the facts of this

case, in particular, in a petition filed under Section

482 of the Cr.PC. As to whether it constitute

defamation and as to whether it falls in any of the

Explanations/Exceptions, would be all matters to be

decided by the court.

102.The question which remains is everything being

assumed in favour of the complainant, viz., that the

first accused has posted defamatory material by

uploading it on the platform and the appellant is an

intermediary providing the said platform, the argument

of the appellant is that even then, the appellant is

not liable. We have noticed the stand of the Government

of India also. An intermediary provides a platform.

Millions of posts are uploaded every day. We have

noticed the definition of words “originator” and

“addressee”. The case of the appellant is that the

originator in this case, the first accused, is the

author of the alleged defamatory material. Unlike an

article which is written by person ‘A’ and which is got

published in a newspaper or publication which is

brought out by a person ‘B’, the case of the appellant

is that the first accused is both the originator, and

therefore, the author and he is also the publisher.

Assuming everything against the appellant as aforesaid,

the offence if at all has been committed, may have been

committed by the first accused. The appellant seeks to

wash its hands off the contents of the article as also

the publication. The responsibility for authoring the

material and publishing(uploading) lies at the doorstep

of the fist accused. The appellant has no role at all

in this matter. In such circumstances, it is the case

of the appellant that having regard to the role played

by the appellant, again assuming that it is the

intermediary, involved in this case, it cannot be made

liable. It is the further case of the appellant that at

the most, liability may arise, if a party aggrieved by

material, which can be understood as electronic record

under the Act, approaches the appellant armed with a

court order or an authority directing it to remove the

offending posts. Till then, the appellant is not

liable, in law, to take steps against the material.

This is apart from pointing out that it is incumbent

upon the complaining party to assist the intermediary

by providing it with the URL so that the matter could

be located and action taken. In fact, in this case, it

is pointed out that the appellant, as a good gesture,

upon receipt of complaint, written to parent company,

which, in fact, is the intermediary and the parent

company wrote back seeking URL. The actions of the

appellant have been bonafide. It has no role to play in

the commission of the alleged offence. It is in this

context that appellant would contend that in law an

intermediary cannot and should not be designated as the

Competent Authority to decide upon the question as to

whether any material falls foul of the law of

defamation leading to the unilateral interference with

the free exchange of ideas though the internet.

Internet, it is pointed out, is universal, and in the

words of the Government of India, which supports the

appellant in this Court, a democratic medium for the

free exchange of ideas. Any conferment of unilateral

power upon the intermediary would introduce what is

called the chilling effect.

SECTION 499 OF THE IPC: “MAKES OR PUBLISHES”:

103.It is important that we notice the indispensable

ingredients of the offence under Section 499 of the

IPC. Section 499 reads as follows:

“499. Defamation.—Whoever, by words either

spoken or intended to be read, or by signs

or by visible representations, makes or

publishes any imputation concerning any

person intending to harm, or knowing or

having reason to believe that such

imputation will harm, the reputation of

such person, is said, except in the cases

hereinafter expected, to defame that

person.”

104.Under the said provision, the Law Giver has made

the making or publishing of any imputation with a

requisite intention or knowledge or reason to believe,

as provided therein, that the imputation will harm the

reputation of any person, the essential ingredients of

the offence of defamation. What is the meaning to be

attached to the words “making of an imputation” and

“publishing of an imputation”? This question has been

set out with clarity in a recent judgment which is

reported in Mohd. Abdulla Khan v. Prakash K.25. It was

held as follows:

“10. An analysis of the above reveals

that to constitute an offence of

defamation it requires a person to make

some imputation concerning any other

person;

(i) Such imputation must be made

either

(a) With intention, or

(b) Knowledge, or

(c) Having a reason to believe

that such an imputation will harm the

reputation of the person against whom

the imputation is made.

(ii) Imputation could be, by

(a) Words, either spoken or

written, or

(b) By making signs, or

(c) Visible representations

(iii) Imputation could be either made

or published.

The difference between making of an

imputation and publishing the same

is:

If ‘X’ tells ‘Y’ that ‘Y’ is a

criminal — ‘X’ makes an imputation.

If ‘X’ tells ‘Z’ that ‘Y’ is a

criminal — ‘X’ publishes the

imputation.

The essence of publication in the

context of Section 499 is the

communication of defamatory imputation

to persons other than the persons

against whom the imputation is made.

[Khima Nand v. Emperor, 1936 SCC OnLine

All 307 : 1937 Cri LJ 806; Amar

Singh v. K.S. Badalia, 1964 SCC OnLine

Pat 186 : (1965) 2 Cri LJ 693]”

LIBEL?

105.We may incidentally also notice an earlier judgment

of this Court in this context reported in M.C. Verghese

v. T.J. Poonan and another26. The daughter of the

appellant therein, who was married to the respondent

(T.J. Poonan), received certain letters from her

husband which the appellant-father-in-law complained as

containing defamatory statements against him. The

Magistrate took the view that being a communication

between husband and wife, it did not amount to

defamation as there was no publication since in the eye

of law, as the husband and wife are one. He also took

the view that the communication between the spouses was

privileged under Section 122 of the Indian Evidence

Act, 1872. This Court reversed the view taken by the

High Court which had upheld the view of the Magistrate

though in the interregnum the Magistrate’s view did not

find favour with the learned Sessions Judge. This Court

took the view that the principle, the husband and wife

are one in the eye of law, has not been adopted in its

full force under our system and certainly not in our

criminal jurisprudence (see paragraph 7). It is,

thereafter, that the Court made following observations:

“10. It must be remembered that the

Penal Code, 1860 exhaustively codifies the

law relating to offences with which it

deals and the rules of the common law

cannot be resorted to for inventing

exemptions which are not expressly

enacted.

11. In Tiruvengadda Mudali v.

Tripurasundari Ammal [ILR 49 Mad

728] a Full Bench of the Madras High

Court observed that the exceptions to

Section 499 IPC, must be regarded as

exhaustive as to the cases which they

purport to cover and recourse can be had

to the English common law to add new

grounds of exception to those contained

in the statute. A person making libellous

statements in his complaint filed in

Court is not absolutely protected in a

criminal proceeding for defamation, for

under the Eighth Exception and the

illustration to Section 499 the

statements are privileged only when they

are made in good faith. There is

therefore authority for the proposition

that in determining the criminality of an

act under the Penal Code, 1860 the Courts

will not extend the scope of special

exceptions by resorting to the rule

peculiar to English common law that the

husband and wife are regarded as one.”

106.No doubt, the Court did not express a final

opinion.

107.In the light of this discussion, we may only

reiterate that the criminal offence of defamation under

Section 499 of the IPC is committed when a person makes

a defamatory imputation which, as explained in Mohd.

Abdulla Khan (supra), would consist of the imputation

being conveyed to the person about whom the imputation

is made. A publication, on the other hand, is made when

the imputation is communicated to persons other than

the persons about whom the defamatory imputation is

conveyed. A person, who makes the defamatory

imputation, could also publish the imputation and thus

could be the maker and the publisher of a defamatory

imputation. On the other hand, a person may be liable

though he may not have made the statement but he

publishes it.

108.In this case, the case of the appellant appears to

be that it is indisputable that it is the first

defendant who has not only authored the statements

containing imputations which are allegedly defamatory

but it is he who has also published it. In this regard,

the parties before us have drawn our attention to case

law emanating from courts other than in India.

THE DEFAMATION ACTS IN ENGLAND: A LOOK AT SOME DECISIONS UNDER THE SAME

109.Before we proceed to consider the case law, a

bird’s overview of the law of defamation, as contained

in United Kingdom, may be appreciated. The Defamation

Act of 1952, as contained in Sections 4,7,8,9(2) and

9(3) and Sections 16(2) and 16(3) came to be repealed

by the Defamation Act of 1996. The Defamation Act of

2013 further amended the law by declaring that a

statement is not defamatory unless its publication has

caused or is likely to cause serious harm to the

reputation of the claimant which, in the case of body

that trades for profit, it was made clear that the

serious harm would not arise unless there is caused

serious financial loss or likelihood of such loss.

Truth was declared as a defence. Certain defences were

introduced. Considerations of public interest was

introduced in regard to operators of website. Section 5

was enacted, which reads as follows:

“5. Operators of websites

(1) This section applies where an action

for defamation is brought against the

operator of a website in respect of a

statement posted on the website.

(2) It is a defence for the operator to

show that it was not the operator who

posted the statement on the website.

(3) The defence is defeated if the

claimant shows that—

(a) it was not possible for the

claimant to identify the person

who posted the statement,

(b) the claimant gave the operator a

notice of complaint in relation

to the statement, and

(c) the operator failed to respond to

the notice of complaint in

accordance with any provision

contained in regulations.

(4) For the purposes of subsection (3)

(a), it is possible for a claimant to

“identify” a person only if the

claimant has sufficient information

to bring proceedings against the

person.

(5)Regulations may—

(a) make provision as to the action

required to be taken by an

operator of a website in response

to a notice of complaint (which

may in particular include action

relating to the identity or

contact details of the person who

posted the statement and action

relating to its removal);

(b) make provision specifying a time

limit for the taking of any such

action;

(c) make provision conferring on the

court a discretion to treat

action taken after the expiry of

a time limit as having been taken

before the expiry;

(d) make any other provision for the

purposes of this section.

(6) Subject to any provision made by

virtue of subsection (7), a notice of

complaint is a notice which—

(a) specifies the complainant’s name,

(b) sets out the statement concerned

and explains why it is defamatory

of the complainant,

(c) specifies where on the website

the statement was posted, and

(d) contains such other information

as may be specified in

regulations.

(7) Regulations may make provision about

the circumstances in which a notice

which is not a notice of complaint is

to be treated as a notice of

complaint for the purposes of this

section or any provision made under

it.

(8) Regulations under this section—

(a) may make different provision for

different circumstances;

(b) are to be made by statutory

instrument.

(9) A statutory instrument containing

regulations under this section may

not be made unless a draft of the

instrument has been laid before, and

approved by a resolution of, each

House of Parliament.

(10) In this section “regulations” means

regulations made by the Secretary of

State.

(11) The defence under this section is

defeated if the claimant shows that

the operator of the website has acted

with malice in relation to the

posting of the statement concerned.

(12) The defence under this section is not

defeated by reason only of the fact

that the operator of the website

moderates the statements posted on it

by others.”

110.There are other provisions which need not detain

us. We may, no doubt, also notice the meaning of the

word “publish”, inter alia, as contained in Section 15

of the Defamation Act, 2013:

“15. … “publish” and “publication”, in

relation to a statement, have the meaning they

have for the purposes of the law of defamation

generally;”

111.The Act was to apply only to England and Wales.

Certain provisions were to apply to Scotland also.

112.It may be noticed, however, that the Defamation

Act, 1996, as indeed the Defamation Act, 1952, provided

113.In Section 20(2) of the Defamation Act, 1996, it is

stated that nothing in the said Act affected the law

relating to criminal libel. There is a similar

provision in the Defamation Act, 1952. Section 17(2) of

the Defamation Act, 1952 also declared that nothing in

the Act affected the law relating to criminal libel.

114.Criminal libel, however, came to be repealed by the

Coroners and Justice Act, 2009.

115.The complainant would refer to judgment in Byrne v.

Deane27 as also Payam Tamiz v. Google Inc.28. The

appellant, on the other hand, relied upon the judgment

of the Queens Bench in Bunt v. Tilley29. There is also

reference by the respondent to the judgment in Godfrey

v. Demon Internet Limited30. Let us now take these cases

27 (1937) 1 KB 818

28 (2013) EWCA CB 68

29 (2006) EWHC 407

30 (2001) QB 201

in the chronological order and the context in which the

matter arose and was decided.

116. In Byrne (supra), the facts may be noticed. The

complainant was a member of a Golf Club. The defendants

were the proprietors and the female defendant was also

the Secretary. The rules of the Club, inter alia,

prohibited posting of any notice or placard in the Club

premises without the consent of the Secretary. There

were certain automatic gambling machines kept by the

defendants for the use of the members of the Club. On a

complaint, the machines were removed from the Club

premises. Alleging that a defamatory verse was put up

on the wall of the Club, the plaintiff brought an

action in libel alleging publication by the defendants

of matter defamatory to him. In short, it was his case

that the words were meant to convey that it was the

plaintiff who reported the matter to the Police which

undermined his loyalty to the members of the Club. The

learned Judge, who heard the civil action for damages,

gave judgement to the plaintiff. He came to the

conclusion that the matter complained of was

defamatory. He further found that since the defendants

allowed the notice to remain on the walls of the Club,

over which the defendants have complete control, the

publication of it was made with their approval and they

had, therefore, published that libel. As regards the

question whether there was publication by the

defendants, the Court, by a majority, took the view

that there was publication. Greer L.J. held as follows:

“… It was a proprietary club. The

difference between a proprietary club and

an ordinary club is that in a proprietary

club the proprietor or proprietors remain

in possession of the club. The two

defendants are the lessees of the club and

they are the occupiers of the club

premises, and the walls are their walls,

and in my judgment they allowed a

defamatory statement to be put up on their

walls and to remain on their walls in a

position in which it could be read by

anybody who came into the club.

Undoubtedly it must have been so read not

only by people who were members of the

club but by people who were not members of

the club, and who only came in possibly

for a drink with a member or to play a

game of some sort or another.

Quite a number of illustrations have

been put forward as illustrations which

give rise to similar questions to the

question that arises in this case. In my

judgment the nearest case put forward is

this: assume that a defamatory poster was

hung upon the garden rail of Mr. Smith's

house which adjoins the street so that the

defamatory statement can be read by every

one who passes the house. Could it not be

said that by allowing that poster to

remain hanging upon the garden rail of his

house the occupier of the house was taking

part in the publication of that poster to

people passing his house, when the

simplest operation in the world, namely,

cutting the rope by which the poster was

hung upon the rail and taking the poster

away, would have made the poster from that

time innocuous? In my judgment the two

proprietors of this establishment by

allowing the defamatory statement, if it

be defamatory, to rest upon their wall and

not to remove it, with the knowledge that

they must have had that by not removing it

it would be read by people to whom it

would convey such meaning as it had, were

taking part in the publication of it. …”

117.Slesser L.J. wrote a separate opinion wherein he

took the view that complainant had failed to show

publication against the male defendant. With regard to

the female defendant, it was held as follows:

“… With regard to the female

defendant I think it may be said —

although it is perhaps extending the

evidence of publication rather further

than has ever been done in the past in any

case which I have been able to discover —

that there was some evidence of

publication on the part of the female

defendant. ...”

118.Greer L.J., further held as follows:

“No notice or placard, written or

printed, shall be posted in the club

premises without the consent of the

secretary,” and her evidence is to this

effect, that she knew that this alleged

libel had been placed on the wall of the

club. Her view was that she could see no

harm in it. She said: “I read it. It

seemed to me somebody was rather annoyed

with somebody.” I think having read it,

and having dominion over the walls of the

club as far as the posting of notices was

concerned, it could properly be said that

there was some evidence that she did

promote and associate herself with the

continuance of the publication in the

circumstances after the date when she knew

that the publication had been made.”

119.Greene L.J., took the view that there was evidence

of publication by both the defendants. It was held as

follows:

“Now, on the substantial question of publication, publication, of course, is a question of fact, and it must depend on the circumstances in each case whether or not publication has taken place. It is said that as a general proposition where the act of the person alleged to have published a libel has not been any positive act, but has merely been the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me is this: having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?

I may give as an example of a case which would fall on one side of the line: suppose somebody with a mallet and a chisel carved on the stonework of somebody's house something defamatory, and carved it very deeply so that the removal of it could only be effected by taking down the stonework and replacing it with new stonework. In a case of that kind it appears to me that it would be very difficult, if not indeed impossible, to

draw the inference that the volition of

the owner of the house had anything to do

with the continued presence of that

inscription on his stonework. The

circumstance that to remove it would

require very great trouble and expense

would be sufficient to answer any such

aspersion.

On the other hand you have a case

such as the present where the removal of

this particular notice was a perfectly

simple and easy thing to do involving no

trouble whatsoever. The defendants, having

the power of removing it and the right to

remove it, and being able to do it without

any difficulty at all, and knowing that

members of the club when they came into

the room would see it, I think must be

taken to have elected deliberately to

leave it there. The proper inference,

therefore, in those circumstances it seems

to me is that they were consenting parties

to its continued presence on the spot

where it had been put up. That being so it

seems to me that they must be taken to

have consented to its publication to each

member who saw it. …”

120.In Godfrey (supra), the case was a civil action.

The complainant was a Lecturer in Physics, Mathematics

and Computer Science resident in England. The defendant

was an internet service provider. On the 13th of

January, 1997, some unknown person made a post in the

U.S.A. in news group soc.culture.thai and stores which

was carried on by the defendant. For about a fortnight,

the posting was available to be read by its customers.

According to the complainant, it was defamatory, inter

alia, to him. It purported to emanate from the

complainant though his name was misspelt. Complainant

claimed it to be a forgery. He sent a letter to the

Managing Director of the defendant-company about the

posting being a forgery and disowning responsibility of

the same, he requested removal of the same from the

server. It was not disputed by the defendant that it

could have obliterated the post after receiving the

request. The court examined the matter thereafter, on

the basis of the governing law, viz., Defamation Act,

1996. The following discussion is relevant:

“The law

The governing statute is the Defamation

Act 1996. Section 1, which is headed

“Responsibility for publication”, provides:

(1) In defamation proceedings a

person has a defence if he shows that—

(a) he was not the author, editor or

publisher of the statement complained

of, (b) he took reasonable care in

relation to its publication, and (c) he

did not know, and had no reason to

believe, that what he did caused or

contributed to the publication of a

defamatory statement.”

It should be noted that for the defence to succeed (a) and (b) and (c) have to be established by the defendant. Section 1 continues:

“(2) For this purpose … ‘publisher’

[has] the following meanings, which are

further explained in subsection (3) …

‘publisher’ means a commercial

publisher, that is, a person whose

business is issuing material to the

public, or a section of the public, who

issues material containing the

statement in the course of that

business.

“(3) A person shall not be considered

the author, editor or publisher of a

statement if he is only involved—(a) in

printing, producing, distributing or

selling printed material containing the

statement … (c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form … (e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control. In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement …

“(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be had to—(a) the extent of his responsibility for the content of the statement or the decision to publish it, (b) the nature or circumstances of the publication, and (c) the previous conduct or character of the author, editor or publisher.”

In my judgment the defendants were

clearly not the publisher of the posting

defamatory of the plaintiff within the

meaning of section 1(2) and (3) and

incontrovertibly can avail themselves of

section 1(1)(a). However the difficulty

facing the defendants is section 1(1)(b)

and (c). After 17 January 1997, after

receipt of the plaintiff's fax, the

defendants knew of the defamatory posting

but chose not to remove it from their

Usenet news servers. In my judgment this

places the defendants in an insuperable

difficulty so that they cannot avail

themselves of the defence provided by

section 1.”

121.The court purported to follow the judgment in Byrne

(supra) and held as follows:

“… The defendants chose to store

soc.culture.thai postings within their

computers. Such postings could be accessed

on that newsgroup. The defendants could

obliterate and indeed did so about a

fortnight after receipt.”

122.The court finally concluded that the plaintiffs

summons to strike out parts of the defence as

disclosing no sustainable defence which was to the

effect that in common law, they were not publishers of

the internet posting. The plaintiff’s summons was

allowed to strike out the defence.

123.Now, we may turn to Bunt (supra) decided on

10.03.2006 by the Queen’s Bench Division of the High

Court. Defendants 4 to 6 in the civil proceeding were

internet service providers. The service providers

applied under Civil Procedure Rules (CPR) 3.4(2) and

(CPR) 24 for an order to the High Court. The claim of

the plaintiff was based on the allegation that the

individual defendants published the offending words

through the services provided by the internet service

providers. In paragraph 7, the Court considered it

necessary to consider the defence relied upon by the

parties which, in fact, was admissible for the purpose

of CPR Part 24. The court referred to the decision in

Godfrey (supra). The court also held, inter alia, as

follows:

“15. Publication is a question of fact,

and it must depend on the circumstances of

each case whether or not publication has

taken place: see e g Byrne v Deane [1937]

1 KB 818, 837–838, per Greene LJ. The

analogies that were held to be

inappropriate in Godfrey v Demon Internet

Ltd might yet be upheld where the facts do

not disclose onward transmission with

knowledge of the defamatory content. As Dr

Collins observes in The Law of Defamation

and the Internet, para 15.43:

“Mere conduit intermediaries who

carry particular Internet

communications from one computer to

another … are analogous to postal

services and telephone carriers in

the sense that they facilitate

communications, without playing any

part in the creation or preparation

of their content, and almost always

without actual knowledge of the

content.”

Such an approach would tend to

suggest that at common law such

intermediaries should not be regarded as

responsible for publication. Indeed, that

is consistent with the approach

in Lunney where the New York Court of

Appeals drew an analogy between an ISP and

a telephone company “which one neither

wants nor expects to superintend the

content of his subscriber's conversations”.

22. I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn [1899] AC 549, 562: “A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish.” In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day. It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that “publication”.

23. Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words . It is not enough

that a person merely plays a passive instrumental role in the process. (See also in this context Emmens v Pottle (1885) 16 QBD 354, 357, per Lord Esher MR.)

30. In so far as the claimant seeks support in Godfrey Demon Internet Ltd [2001] QB 201, there are plainly significant distinctions. Morland J deprived the ISP in that case from protection under section 1 of the 1996 Act because it had continued publication of the same defamatory statements after Mr Godfrey's letter had been received, asking for them to be removed from the Usenet news server. Here, by contrast, the claimant is relying upon separate postings. In these there is no reference to batteries, but rather to suggestions of fraud and “kiddie porn”. There are no pleaded facts to suggest any knowing participation by AOL in the publication of these words.

31. Ms Phillips accordingly submits that an ISP should not become liable as a publisher (especially for postings on a site which it does not host) simply because it has been previously told of wholly unrelated allegedly defamatory statements, not necessarily even by the same author. That is a powerful argument which is relevant, as I have said, both to the fundamental issue of publication at

common law and to statutory defences which

I shall have to consider later.

36. In all the circumstances I am

quite prepared to hold that there is no

realistic prospect of the claimant being

able to establish that any of the

corporate defendants, in any meaningful

sense, knowingly participated in the

relevant publications. His own pleaded

case is defective in this respect in any

event. More generally, I am also prepared

to hold as a matter of law that an ISP

which performs no more than a passive role

in facilitating postings on the Internet

cannot be deemed to be a publisher at

common law. I would not accept the

claimant's proposition that this issue

“can only be settled by a trial”, since it

is a question of law which can be

determined without resolving contested

issues of fact.”

124.Thereafter, the Court also referred to the

Electronic Commerce Directive (Regulations), 2002.

Still further, the Court referred in detail to the

witness statement of the Director (Technical and

Operations) in AOL:

“53. There is no expert challenge to that evidence, and I have no reason to doubt that it represents the true position. How then does the claimant propose to overcome the protection claimed by the fourth and fifth defendants under these Regulations? As I have said, he relies on “simple logic”. He does not rely on any expert report. I turn therefore to his case as clarified in the light of the order of Gray J.

54. It is necessary to consider para 19 of the amended particulars of claim which advances a proposition to the effect that there is an obligation to “gatekeep” its conduit. The nub of this submission appears to be contained in sub-paras (i) and (j):

“(i) An ISP providing a leased line

connection to a customer has an

extremely good argument under both the

Defamation Act 1996 and also the

Electronic Commerce Directive 2002 that

it is no more than a ‘conduit’, that it

has no knowledge or control over what

passes through that ‘conduit’, and that

the entire responsibility for what does

pass through that ‘conduit’ rests with

the customer who has purchased it, as

it is the customer and not the ISP who

acts as a ‘gatekeeper’ for that

‘conduit’. An ISP providing a standard

domestic consumer or SOHO Internet access package to a customer has no possible hope of successfully arguing that it is a mere ‘conduit’ and therefore immune from that law, as all content originates from within their own network, instead of merely passing through it in ‘Via’ fashion from one network to another.

“(j) In these circumstances not only is the ISP most definitely acting as sole ‘gatekeeper’ between the source of the defamatory material and the Internet, they also provide a bundle of other services … each of which clearly falls foul of the other provisions of the Electronic Commerce Directive 2002 which, for example, only allows the minimum level of cacheing technically necessary for the underlying technology of message transmission to function.”

The notion of a “gatekeeper” appears to derive from the claimant himself; it is nowhere to be found in the regulations.”

77. In conclusion, I am quite

satisfied that the claims against

these applicants should be struck out

in accordance with CPR Pt 3, and

indeed that there would be no

realistic prospect of success on any

of the causes of action. Thus the

criteria under CPR Pt 24 would also

be fulfilled.”

125.At this juncture, it is necessary also to refer to

CPR 3.4(2):

“Power to strike out a statement of case

3.4.(2) The court may strike out(GL) a

statement of case if it appears to the

court—

(a) that the statement of case discloses

no reasonable grounds for bringing or

defending the claim;

(b) that the statement of case is an

abuse of the court’s process or is

otherwise likely to obstruct the just

disposal of the proceedings; or

(c) that there has been a failure to

comply with a rule, practice

direction or court order.”

126.In Richardson (supra), decided on 02.11.2015, the

claimant sought damages in respect of publication on a

Facebook profile and a blog post on the Google blogger

service. The profile and the blog post were purportedly

created by that claimant but the claimant complained

that they were fake being created by an imposter. She

claimed that both were defamatory and violated her

right to respect for her private life under Article 8

of the European Convention on Human Rights. Proceedings

were commenced against Facebook U.K. in respect of the

profile they described as the Facebook action and

against Google U.K. Limited in respect of the blog

post, shown as the Google action. The action came to be

dismissed. The principle ground was that the suit was

against the company which was not responsible for the

publication which meant that she had prosecuted the

case against the wrong defendant. In appeal, she cited

certain issues to be referred to the Court of Justice

of the European Union. The Court referred to Bunt

(supra), Godfrey (supra) and Byrne (supra). The Court

held as follows:

“32. The underlying rationale of the

decision in Byrne v Deane, that the

defendants were responsible for

publication, was that they were in control

of the notice board and had the power to

act so as to remove a posting by a third

party which was unauthorised and wrongful;

by failing to exercise that power in the

knowledge of the posting they became

liable for its continued publication. This

rationale is plainly capable of applying

to some of those involved in the provision

of internet services and social media

platforms.”

127.Thereafter, the Court went on to notice that the

Defamation Act, 1996, mitigated the rigor of the common

law principles by providing a defence for those who by

application of those principles were publishers of

common law. Court further went on to hold that internet

service providers and others are not responsible for

publication according to the common law principles

discussed, that is to say, who were not publishers at

common law, had no need to take resort under the

Defamation Act. The court went on to refer to

Defamation Act, 2013 which came into force on

01.01.2014. Further, the court held as follows:

“39. The pleading acknowledges on its

face that Facebook Inc "owns" the Facebook

Service and the associated website. It

appears to adopt the statement in the

terms of service that Facebook Ireland Ltd

is, according to the terms of service,

responsible for processing data outside

the US and Canada. So far as FBUK is

concerned, there is an allegation that it

was notified of the offending postings.

However, the pleading wholly fails to

advance against FBUK any clear or coherent

case that it has or had any form of

control over any aspect of the content of

the Facebook Service, let alone the

Profile. The allegation that FBUK was

notified of the claimant's complaint goes

beyond what is alleged earlier in the

pleading, where notification is said to

have been given to "the Facebook Service"

and "Facebook". It also appears to be

factually untenable. But even if it were

true it could not, in the absence of an

allegation that FBUK had the power or

ability to control content, form a proper

basis for the attribution of

responsibility for publication on the

basis of Byrne v Deane principles.”

128.The court further observed that on the evidence,

the claimant had known Byrne (supra) without any

prospect of success. In this regard, the court relied

on the evidence led which was to the effect that the

claim was fundamentally defective because Facebook U.K.

Limited had no involvement or responsibility for the

Facebook service. The material further was to the

effect that the Facebook service was operated by

Facebook Inc., a corporation existing under the laws of

the United States. Facebook Ireland Limited, a company

organized and existing under the laws of the Republic

of Ireland has explained in its terms of service that

users outside of the United States of America and

Canada contracted with the Facebook Ireland Limited ….”

129.The material was to the effect that Facebook U.K.

Limited was a separate and distinct entity. Facebook

U.K. Limited’s sole corporate purpose is public

relation, consultancy, and communications in the United

Kingdom. There was also reference to decisions of

English Courts previously finding that Facebook U.K.

Limited do not control or operate the Facebook

services.

130.The court took the view that Facebook U.K. Limited

persuaded it that if there were a trial, it would

inevitably demonstrate that it was not responsible. An

attempt was made by the claimant to draw support from

Google Spain SL (supra) decision. The argument appears

to have been that on the basis of the said decision,

Facebook Inc. and its subsidiaries were to be treated

as a single economic unit and Facebook U.K. Limited

should also be responsible for the publication of the

profile. The court rejected the contention. One of the

reasons given was that Google Spain SL

(supra) was a decision which was based on the scope and

application of the data protection directions. The

court took the view that the decision in Google

Spain SL (supra) had nothing to say about the domestic

law of responsibility of publication in defamation. It

was a matter to be determined by the common law and the

Defamation Acts. It was further found that claimant had

misunderstood the relevant aspect of the Google Spain

SL (supra) decision. It was found that the Court of

Justice of European Union (CJEU) did not hold

that parent and subsidiary companies are to be treated

as a single unit. Google Spain SL (supra)

revolved around the interpretation and application of

Article 4(1) of the Directive. The court went on to

hold that the controller within the meaning of the

directives was Google Inc.. In Google Spain SL (supra),

court held that Google Spain was not a data controller.

131.On the one hand, the appellant sought to draw

support from Richardson (supra) whereas, on the other

hand, the complainant laid store by Google Spain SL

(supra). We have noticed the context in which the

questions arose. As far as English decision is

concerned, it was a civil action. The material before

the learned Judge who allowed the application by

Facebook U.K. Limited and Google U.K. was apparently in

terms of the procedural laws, perhaps akin to Order VII

Rule 11 of the Code of Civil Procedure, 1908. More

importantly, there was material before the court even

in dismissing the claims on the application of the

defendants.

132.We are, in this case, concerned with the ambit of

jurisdiction under Section 482 of the Cr.PC. We also

notice that the decision rendered in Google Spain SL

(supra) appears to have turned on the scope of the

directive as noticed in Richardson (supra).

133.Section 79 of the Act came to be substituted with

effect from 27.10.2009. In fact, the effect of

substitution of a provision has been dealt with by this

Court in the decision in State of Rajasthan v. Mangilal

Pindwal31:

“10. Similarly in Crawford's

Interpretation of Laws it has been said:

“Effect of Repeal, Generally.— In the

first place, an outright repeal will

destroy the effectiveness of the

repealed act in futuro and operate to

destroy inchoate rights dependent on

it, as a general rule. In many cases,

however, where statutes are repealed,

they continue to be the law of the

period during which they were in force

with reference to numerous matters.”

(pp. 640-641)

11. The observations of Lord

Tenterden and Tindal, C.J. referred in the

above-mentioned passages in Craies on

Statute Law also indicate that the

principle that on repeal a statute is

obliterated is subject to the exception

that it exists in respect of transactions

past and closed. To the same effect is the

law laid down by this Court. (See: Qudrat

Ullah v. Municipal Board [(1974) 1 SCC

202:(1974) 2 SCR 530], SCR at p. 539)

12. This means that as a result of

repeal of a statute the statute as

repealed ceases to exist with effect from

the date of such repeal but the repeal

does not affect the previous operation of

the law which has been repealed during the

period it was operative prior to the date

of such repeal. …”

134.In this case, the complaint itself is dated

21.01.2009. The sworn statement of Deputy Manager

(Legal) of the complainant is recorded on 27.02.2009.

The sworn statement reads as follows:

“I am the complainant herein. I am

working a1s Deputy Manager-legal in the

complainant company. Complainant company

manufactures Asbestos Cement sheets and it

is having various manufacture units throw

out India. Accused No.1 is a coordinator

of Ban Asbestos India a Group hosted by

Accused No.2 and publishes articles in the

group regarding various issues on 21st

November, 2008 an article was published in

A2 group as Poisoning the system:

Hindustan times. Complainant was surprised

to note that article is aimed at

complainant company and also against

renowned politicians of the country i.e.

Mr. G. Venkat Swamy and Smt. Sonia Gandhi

where as these people have nothing to do with the complainant company and again on 31st July, 2008 an article was captioned A2 Group as Visaka Asbestos Industries making gains both articles contains defamatory statements against the complainant which is available in the cyber space in the form of an article for world wide audience. The complainant submits acts and deeds of the accused not only harm the complainant company but also integrity of the working people. Complainant humbly submits that there are other groups like Everest Group, Ramco Group and Birla Group which are also engaged in the same group. But the accused No.1 unnecessarily dragged the complainant and the politicians of the country with malicious intention. The complainant further submits that A1 trying to bring down the complainant image by running hate campaign against the complainant through the above said articles. After seeing this article the complainant has sent notice dated 10.12.2008 through Registered Post which A1 returned unserved and the Fax was received by both the accused. The above article caused damage to the reputation of the complainant. A1 with malafide intention to cause damage to the reputation to complainant has published such articles. I further submit that the acts and deeds of the accused being committed in violation of the fundamental rights and the action on the part of the accused in making such defamatory statements are premeditated and intended to lower the image cause defamation in the eyes of public knowing fully well that the statements made there in are false and the

complainant company and others are being

targeted by the accused with an hidden

agenda. It is therefore pay the Hon’ble

Court to punish the accused according to

law. …”

135.It is seen that the Magistrate has issued summons

to the appellant vide Annexure P5 calling upon him to

appear before the Court on 09.09.2009. If that be so,

not only was the complaint filed at the time when

Section 79, in its erstwhile avtar, was in force before

the present provision was enforced, cognizance

thereunder was also taken. If that be so, the question

of exemption from liability may fall to be decided

under Section 79 of the Act as it stood and not under

the substituted provision.

136. As far as the question whether being a subsidiary

of Google LLC, the appellant is an independent body

which is not to be mulcted with liability, we would

think it is not a matter to be gone into in Section 482

of the Cr.PC. We have noticed the stand of the

Government of India also as also of the complainant.

FINDINGS OF HIGH COURT REGARDING COMPLAINANT’S NOTICE AND CONDUCT OF THE APPELLANT

137.In the impugned judgment, the learned Judge has

proceeded to refer to the notices, which was, according

to the complaint, issued, calling upon the appellant to

remove the objectionable post. It is found that the

appellant did not move its little finger to stop

dissemination of the unlawful and objectionable

material. Therefore, the appellant cannot claim

exemption under either Section 79 of the Act, as it

stood originally, or Section 79 of the Act, after the

amendment which took effect from 27.10.2009. It was

further found that as per Section 79(3), as amended,

the exemption cannot be applied by any court and

claimed by an intermediary in case an intermediary

entered into any conspiracy in respect thereof. It is

in this regard that we may notice that there is a

definite case for the complainant that there was a

conspiracy between the appellant and the first accused

as it is alleged in the complaint that the accused, in

connivance with each other, have disseminated the

information with malafide intention. There is also

reference to Section 120B of the IPC besides Sections

500, 501 read with Section 34 of the IPC. As far as the

view expressed in the impugned order that the appellant

cannot claim any exemption under Section 79 of the Act

after the amendment, is concerned, we are of the view

that it appears to be in the teeth of the pronouncement

of this Court in Shreya Singhal (supra). Section 79, as

substituted, came to be read down to mean that it is

not sufficient if a notice is given to delete a post to

the intermediary. The applicant, who seeks a removal,

must be armed with a court order. In this case, there

is no case for the complainant that when the removal

was sought of the objectionable post, there was any

decision of any competent court or that there was any

directive of a competent authority to remove the post.

Therefore, in the light of Shreya Singhal (supra), the

finding, clearly of the High Court, in this regard,

appears to be unsustainable and we hold so.

138.The finding by the High Court that in the case on

hand, in spite of the complainant issuing notice,

bringing it to the notice of the appellant about the

dissemination of defamatory matter on the part of the

first accused through the medium of appellant,

appellant did not move its little finger to block the

said material to stop dissemination and, therefore,

cannot claim exemption under Section 79 of the Act, as

it originally stood, is afflicted with two flaws. In

the first place, the High Court itself has found that

Section 79, as it originally was enacted, had nothing

to do with offences with laws other than the Act. We

have also found that Section 79, as originally enacted,

did not deal with the effect of other laws. In short,

since defamation is an offence under Section 499 of the

IPC, Section 79, as it stood before substitution, had

nothing to do with freeing of the appellant from

liability under the said provision. Secondly, there is

a case for the appellant that on receipt of notice, the

appellant, as a gesture, forwarded its complaint to its

Parent Company Google LLC which called for the details

by its letter dated 06.01.2009. The complaint came to

be filed on 21.01.2009. We do not think that the High

Court was justified, therefore, in entering findings in

the manner it was done. Further, the High Court has not

taken into consideration the distinction between

blocking and a takedown.

139.Even Section 79, as substituted with effect from

27.10.2009, denies the benefit of the exemption in a

case where there is a conspiracy between the

intermediary or abetting or aiding or inducing or

otherwise in the commission of the unlawful act. Again,

we notice that the case in the complaint is that there

was connivance between the accused. This is not a

matter which we feel could be considered to be

proceeded under Section 482 of the Cr.PC.

140.We may also notice that in the Civil Suit also, the

complainant maintains that the appellant is the service

provider and it has abused the services provided by it

(see paragraph 11 of the plaint). Appellant is,

undoubtedly, the second defendant whereas Google Inc.

has also been made a party as third defendant. We say

this as appellant has a case that in the Civil Suit,

the complainant has set up a case that it is Google LLC

which was the actual service provider.

141.If defamatory matter is published as to who

published it, is a question of fact. As already noted,

publication involves bringing defamatory matter to the

knowledge of a person or persons other than the one who

is defamed. We would approve of the principles laid

down by Greene L.J. in Byrne (supra) that “in some

circumstances, a person by refraining from removing or

obliterating the defamatory matter, is not committing

any publication at all. In other circumstances, he may

be doing so. The test, it appears to me is this: having

regard to all the facts of the case, is the proper

inference that by not removing the defamatory matter,

the defendant really made himself responsible for its

continued presence in the place where it has been put?”

Whether there is publication, indeed involves asking

the question also as noted by the learned Judge, as to

whether there was power and the right to remove any

such matter. If despite such power, and also, ability

to remove the matter, if the person does not respond,

it would amount to publication. The said principle, in

our view, would hold good even to determine whether

there is publication under Section 499 of the IPC. The

further requirement, no doubt, is indispensable, i.e.,

it must contain imputations with the intention to harm

or with knowledge or having reasons to believe that it

will harm the reputation of the person concerned.

142.In this case, the substantial complaint of the

complainant appears to be based on the refusal by the

appellant to remove the matter after being notified.

Publication would be the result even in the context of

a medium like the internet by the intermediary if it

defies a court order and refuses to takedown the

matter. This, undoubtedly, is the position even under

the decision in Shreya Singhal (supra) which has read

down Section 79(3)(b) and the Intermediary Rules

already noted.

143.In this regard, we may notice the following

statement in the complaint: -

“Complainant most humbly and respectfully

submits that a notice to withdraw such

articles was issued by the Complainant

through it counsel on 09/12/2008,

requesting Accused No. 1 & 2 to withdraw

the above said articles and to render

unconditional apology and to pay a

compensation of Rs.20.00 Cr. (Rupees Twenty

Crores only) jointly and severally for the

damage cause to Complainant’s reputation,

within 15 days from the date of the receipt

of the notice. In the said notice the

Complainant also invited Accused No. 1 to

visit the plants of the Complainant and

requested to observe the way in which the

products are manufactured and then come to

a conclusion based on facts and science,

office copy of the notice is filed herewith

for kind perusal of this Hon’ble Court. The

Notice was sent under Registered Post with

Acknowledgment Due (R.P.A.) on 10/12/2008,

the receipt of R.P.A.D. is filed herewith

for kind perusal of this Hon’ble Court.

Complainant most humbly and respectfully

submits that through the said notice, the

accused were reminded that their acts

tantamount to the offence punishable under

Section 1208, 500 & 501 of Indian Penal

Code. The R.P.A.D. Notice sent to Accused

No. 1 returned un-served as the Accused

managed to return the same as “left without

address” and the same is filed herewith for

the kind perusal of this Hon’ble Court. As

a precaution, the complainant on 29.12.2008

faxed the said notice to the accused No.

1’s Office at Delhi, receipt of Fax is

filed herewith for kind perusal of this

Hon’ble Court and complainant on 17.12.2008

faxed the said notice to the accused No.

2’s Office at Bangalore, receipt of the fax

is filed herewith for kind perusal of this

Hon’ble Court. Notice sent to the Bangalore

Office of the Accused No. 2 was duly served

and the acknowledgment card is filed

herewith as a proof of the same for the

kind perusal of this Hon’ble Court.”

We have also noticed that in the statement given by

the Officer of the complaint before the Magistrate,

there is reference to the dispatch of the notice.

144.As noted by us, in answering the question whether

there has been publication for the purpose of criminal

libel also on the basis that despite the defamatory

matter being notified, it is not removed, the analogy

of the wall of a club or notice board of a club may not

be as such available when it comes to medium like the

internet. We have noticed that in Byrne (supra), the

test would also be whether the party having the power

to remove the allegedly defamatory matter and also the

right to remove it and being able to do it without any

difficulty defies and rejects the request. The example

of the notice board or a wall of a club, as was the

case in Byrne (supra), is not strictly available when

we are asked to apply it as such in the case of medium

like internet.

145.As was noted in Bunt (supra), in Godfrey (supra),

the receipt of the letter requesting for obliterating

the post was not in dispute and more importantly that

it could have obliterated the post, was again not in

controversy. For deciding whether there is publication,

we see merit in the exposition of law made by the

English Courts as aforesaid.

146.We have noticed that what is declared a crime in

Section 499 of the IPC is the making or publishing of

matter which defames, as described in the Section. The

making or publication must be also accompanied with the

intention or knowledge requisite as mentioned in the

Section to constitute that act a crime.

147.There was a notice, admittedly received from the

complainant by the appellant, dated 09.12.2008, calling

upon the appellant to, inter alia, remove the

controversial post (See paragraph 9 of the Petition

under Section 482 of the Cr.PC). It is the appellant’s

case that since it did not control the services and as

the notice did not concern its activities, the

appellant forwarded the legal notice to its Parent

Company for its response. Appellant further contended

before the High Court that the Parent Company, in turn,

responded to the complainant on 06.01.2009. Since, the

notice issued by the complainant did not denote the

space and services which allegedly host the defamatory

articles, the complainant was asked to provide the

exact details.

148.It is again the appellant’s case that the

complainant, however, proceeded to file the complaint

on 21.01.2009. We will take the appellant’s case as it

is projected. Thereafter, we will test it with

reference to the jurisdiction under Section 482 of the

Cr.PC as to whether this is a matter which can be gone

into under Section 482. To elaborate, we hold:

As noticed by us, it can be safely concluded

that the argument of the appellant appears to be

acting on the basis of the notice sent by the

complainant to the appellant, appellant did not

proceed to remove the objectionable material from

the internet. The reason for doing this is that

according to the appellant, appellant is not the

intermediary and the intermediary is the Parent

Company and, accordingly, it forwarded the

complaint of the complainant in the notice dated

09.12.2008 to its Parent Company. It may not be

possible for this Court to find that the High Court

was wrong in not proceeding on the basis that the

appellant is not the intermediary. The defence set

up by the appellant in this case, is not a matter

which can be gone into in proceedings under Section

482 of the Cr.PC. As things stand, in other words,

consequent upon the notice sent to the appellant by

the complainant on 09.12.2008, the appellant had

refused to or has not complied with the request on

the part of the complainant. As to whether the

appellant was justified in not complying with the

request, involves answering the question as to

whether the appellant was the intermediary, which

again, in turn, as we have already held, may not be

permissible in proceedings under Section 482 of the

Cr.PC. Therefore, this is not an aspect which can

form the basis for the court interfering in Section

482 of the Cr.PC.

149.As to whether there is justification for the Parent

Company in requiring the complainant to provide the URL

so that the offending post could be identified and

dealt with and dehors it whether it could remove the

post, is again a matter, which in our view, it may not

be possible for the appellant to persuade us to hold,

could be gone into the proceedings under Section 482 of

the Cr.PC. This also is on the basis that the Parent

Company is the intermediary. To make matters even more

clear, 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 on the basis of the principle

enunciated in Bryne (supra) and as applied to medium of

internet in Godfrey (supra), as later explained,

however, in Bunt (supra). In other words, 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. This is, no doubt, subject to Shreya

Singhal (supra)where it applies. It is also clear that

to constitute the offence under Section 500 of the IPC,

mere publication would not suffice. As we have noted,

we cannot go into that aspect on the basis of the

notice sent on 09.12.2008 by the complainant on account

of the obstacles which we have pointed out earlier. In

other words, the disowning of the liability to remove

the post is inextricably intertwined with the

appellant’s denial of it being the intermediary. Also,

the question as to whether the demand for the URL and

justification for not removing, based on the same being

questions essentially relating to the facts, cannot be

gone into in Section 482 proceedings.

150.The only aspect, which really remains, is the

aspect that even accepting that the appellant is an

intermediary and it had the power otherwise to accede

to the request of the appellant to remove the offending

material, the so-called right or power of the appellant

is really not a power and the right, but is nothing but

a mere illusion as assuming such powers or exercising

such a right would involve conferring of unilateral and

impermissible adjudicatory power, contrary to the

regime of fundamental right of free expression so

indispensable to the continued efficacy of the internet

as an open democratic medium. In other words,

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 argument, however, is 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.

151.The problem arises in this way however. It is while

considering a challenge to Section 79 of the Act, after

it was substituted with effect from 27.10.2009 and

considering the Rules made in the year 2011 also, and a

challenge to the same also, that in Shreya Singhal

(supra), 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. To

focus more on the problem, it must be pointed out that

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. It is, undoubtedly, true that Article

19(1)(a) and Article 19(2) of the Constitution of India

were very much available in 2008 and 2009 though

Section 79 was in its erstwhile avtar. In other words,

will it not be open to the appellant, assuming it to be

the intermediary, to contend that it cannot be called

upon to remove, defamatory matter comprised in any

third-party information without there being a court

order?

152.It is here that we would remind ourselves that we

are called upon in this case to decide the correctness

and legality of the order of the High Court passed in

the proceedings under Section 482 of the Cr.PC. This

contention, as such, has not been raised. We notice, in

fact, that in the very first ground, however, before

the High Court, it is contended that the appellant has

no role. It has no control over the services provided

on the website. Thereafter, it is contended that even

the employees of the Parent Company do not have the

ability to remove the content posted on the blog

without an order from a court of competent

jurisdiction. It is the further case before the High

Court that under the law of United States of America

which governed the functioning of the Parent Company,

it is not obliged or required to remove any allegedly

defamatory content without the court order. There was

no contention taken that on the basis that even if

appellant is assumed to be the intermediary, the

continuance of the articles after a request by the

complainant to remove it, would not constitute

publication at the hands of the appellant for the

reason that it will not constitute publication as there

is no court order in India. It was also, no doubt, true

that the decision of this Court in Shreya Singhal

(supra) was rendered nearly five years after the

impugned judgment of the High Court. As already

noticed, what was laid down in Shreya Singhal (supra)

was premised upon the challenge to Section 79(3)(b)

which replaced the erstwhile avtar of Section 79 and

also a challenge to the Intermediary Rules of 2011,

both of which provisions came to be read down by the

court.

153.What appellant is asking this Court to do is to

decide the point which is not even raised as such

before the High Court. Having noticed the exact ground

taken before the High Court, it relates to the

inability of the Parent Company to remove the post

without the court order. However, we feel 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.

This is a matter which we leave it open to the

appellant to urge before the Court.

154.There is a complaint by the appellant that the

Magistrate did not have territorial jurisdiction over

the appellant and the procedure under Section 203 of

the Cr.PC should have been followed. We noticed that

this contention was not raised before the High Court.

We further noticed that on this ground alone, in the

facts of this case, after nearly a decade of the matter

pending in this Court, it would be unjust to remand the

matter back to the Magistrate, which we must indeed

note, was one of the submissions of the appellant.

155.The upshot of the above discussion is as follows:

1. We reject the contention of the appellant that the

High Court should have acted on the Google LLC

conditions and found that the appellant is not the

intermediary. We hold that this is a matter for

trial.

2. 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.

3. We set aside the findings by the High Court regarding

the alleged refusal of the appellant to respond to

the notice to remove. We make it clear, however, that

it is for the Court to decide the matter on the basis

of the materials placed before it, and taking into

consideration, the observations contained in this

judgment.