Code of Criminal Procedure, 1973: s.482 – Scope of interference – Complaint instituted by first respondent company in January, 2009 under ss.120B, 500 and 501 r/w s.34 IPC and it related to an offence which perpetuated from 31.07.2008 onwards – Case of complainant was that it was engaged in the business of cement sheets – The first accused was the Coordinator of a group hosted by the appellant which allegedly published an article defaming the complainant – Summoning order by Magistrate – Appellant-second accused filed petition under s.482 seeking to quash the summoning order – High Court held that s.79 of the Information Technology Act, 2000 exempted the Network Service Provider from liability only when it proved that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence and that this being a question of fact cannot be decided by High Court in s.482 petition – High Court also noted that 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 and that since in this case appellant did not take a single step to block the material or to stop dissemination of objectionable material in spite of the notice issued by complainant to that effect, appellant was not entitled to exemption under s.79 of the Act, prior to its substitution, or s.79 of the Act, after its substitution, which took effect from 27.10.2009 – Aggrieved appellant filed instant appeal – Held: As to whether the appellant was justified in not complying with the request for removal of objectionable posts, involves question as to whether the appellant was the intermediary, which is not permissible in proceedings under s.482 – The question whether being a subsidiary of Google LLC, the appellant is an independent body which is not to be mulcted with liability, is not to be gone into in s.482 petition – Also 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 could not be gone into the proceedings under s.482 – Magistrate to proceed with the complaint – Information Technology Act, 2000 – s.79 – Penal Code, 1860 – ss.499/500.
Penal Code, 1860: ss.499 and 450 – Law of defamation – Discussed.
Disposing of the appeal, the Court
HELD: 1. CONTOURS OF THE JURISDICTION OF
THE HIGH COURT UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE, 1973
1. 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 as the it is the case of a complaint and not of a Police Report. It does not appear to be a case where it could be held 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. [Para 43] [685-D-E] State of Haryana and Others v. Bhajan Lal and others (1992) Suppl. SCC 335 : [1991] 1 Suppl. SCR 387 – referred to.
2. Whether Section 79 of the Information Technology Act, 2000, as it stood prior to the substitution, would provide a shield to an intermediary.
2.1 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 third-party information or data made available by him provided the Service Provider: Proves that the offence or contravention was committed without his knowledge and that the Service Provider proves that he had exercised all due diligence to prevent the commissioning of such offences or contraventions. 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. [Paras 59, 61] [691E-H; 692-A]
2.2 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 and it was not a bar to the complaint under Section 500 of the IPC being launched or prosecuted. The complaint relates 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. Assuming for the purpose of argument 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. 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. [Paras 63-64] [692-B-D-E-H; 693-A-C]
3. Whether this court is obliged to decide the question that the appellant is an intermediary or it is Google LLC which is the intermediary.
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 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 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 play 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. This is not a case where the High Court could be invited particularly in the light of the stand of the complainant to decide in favour of the appellant by holding that it is the parent company which is the actual intermediary and not appellant. 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. However, it is common case that both parties have filed Review Petitions. In other words, the matter has not yet attained finality. [Paras 80, 81, 83] [702-H; 703-A-E-H; 704A-C-D] Rajiv Thapar and Others v. Madan Lal Kapoor (2013)
3 SCC 330 : [2013] 3 SCR 52 – referred to.
4. ASSUMING APPELLANT IS AN INTERMEDIARY: A
BRIEF OVERVIEW OF THE LAW OF DEFAMATION
4.1 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. [Para 98] [710-AB]
4.2 It is undoubtedly true that the first Exception exempts from criminal liability, statements which are true and which are required for public good. It would not 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. [Paras 99, 101] [710-DE; 711-D-E]
5. Under Section 499 of the IPC, 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. [Para 104] [713-B]
Mohd. Abdulla Khan v. Prakash K. (2018) 1 SCC
615 : [2017] 12 SCR 9 – relied on.
6. The criminal offence of defamation under Section 499 of the IPC is committed when a person makes a defamatory imputation which, 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. [Para 107] [715-C-D]
M.C. Verghese v. T.J. Poonan and Another (1969) 1 SCC 37 : [1969] 2 SCR 692 – referred to.
Google Spain SL, Google Inc. v. Agencia Espanola de Proteccion de Datos (AEPD), Mario Costeja Gonzalez ECLI : EU : C : 2014 : 317 ; Byrne v. Deane (1937)
1 KB 818 ; Payam Tamiz v. Google Inc. (2013) EWCA CB 68 ; Bunt v. Tilley (2006) EWHC 407 ; Godfrey v. Demon Internet Limited (2001) QB 201 – referred to.
7. EFFECT OF SUBSTITUTION OF SECTION 79 OF
THE ACT
Section 79 of the Act came to be substituted with effect from 27.10.2009.In this case, the complaint itself is dated 21.01.2009. The Magistrate has issued summons to the appellant 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.[Paras 133-135] [730H; 731-E-F; 733-G-H]
8. WHETHER APPELLANT NOT LIABLE AS IT IS
ONLY A SUBSIDIARY
The question whether being a subsidiary of Google LLC, the appellant is an independent body which is not to be mulcted with liability, is not to be gone into in Section 482 of the Cr.PC. [Para 136] [733-B]
9. In the impugned judgment, the 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. This finding 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. 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 which called for the details on 06.01.2009. The complaint came to be filed on 21.01.2009. The High Court was not justified, therefore, in entering findings in the manner it was done. 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, the case in the complaint is that there was connivance between the accused. This is not a matter to be proceeded under Section 482 of the Cr.P.C. [Paras 137-139] [733-C-D; 734-A-F]
Shreya Singhal v. Union of India (2015) 5 SCC 1: [2015] 5 SCR 963 – relied on.
10. PUBLICATION: If defamatory matter is published as to who published it, is a question of fact. Publication involves bringing defamatory matter to the knowledge of a person or persons other than the one who is defamed. Whether there is publication, indeed involves asking the question 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, would hold good even to determine whether there is publication under Section 499 of the IPC. The further requirement is 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. In this case, the substantial complaint 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. [Paras 141, 142] [734-H; 735-A-E]
11. 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. 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. 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. 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 it may not be possible to be gone into the proceedings under Section 482 of the Cr.PC. [Paras 146, 147, 149] [737-B-D; 738-B-C]
HMT Watches Limited v. M.A. Abida and Another (2015) 11 SCC 776 : [2015] 3 SCR 719 ; Sharat Babu Digumarti v. Government (NCT of Delhi) (2017)
2 SCC 18 : [2016] 8 SCR 1015 ; Abhijit Pawar v. Hemant Madhukar Nimbalkar and Another (2017) 3 SCC 528 : [2016] 9 SCR 475; Anvar P.V. v. P.K. Basheer and Others (2014) 10 SCC 473 : [2014] 11 SCR 399 ; Shivjee Singh v. Nagendra Tiwari and Others (2010) 7 SCC 578 : [2010] 7 SCR 667 ; Secretary, Ministry of Information and Broadcasting, Government of India and Others v. Cricket Association of Bengal and Others (1995) 2 SCC 161 : [1995] 1 SCR 1036 ; Gambhirsinh R. Dekare v. Falgunbhai Chimabhai Patel and Another (2013) 3 SCC 697 : [2013] 4 SCR 719 ; Avnish Bajaj v. State (N.C.T. of Delhi) 116 (2005) DLT 427 ; New Horizons Limited and Another v. Union of India and Others (1995) 1 SCC 478 : [1994] 5 Suppl. SCR 310 ; State of U.P. and others v. Renusagar Power Company and others (1988) 4 SCC 59 : [1988] 1 Suppl. SCR 627 ; Jeffrey J. Diermeier and Another v. State of West Bengal and Another (2010) 6 SCC 243 : [2010] 7 SCR 128 ; Som Mittal v. Govt. of Karnataka (2008) 3 SCC 753 : [2008] 2 SCR 323 ; State of Rajasthan v. Mangilal Pindwal (1996) 5 SCC 60 : [1996] 3 Suppl. SCR 98 – referred to.
Richardson v. Facebook (2015) EWHC 3154 (QB) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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