Note: This case originated in July 2008 and is based on the Intermediary Liability framework prior to the 2008 Amendment to the Information Technology Act, 2000. The 2008 Amendment had granted safe harbour protection to intermediaries under Section 79 of the Act. Thus, the findings of intermediary liability are applicable only to cases where the cause of action arose prior to December 2008.
On December 10, 2019, the Supreme Court of India declined to quash defamation proceedings against Google for its failure to expeditiously remove a defamatory article against the defendant from its Google Group service. The case is significant since it holds that in cases that originated prior to December 2008, intermediaries may be liable as ‘publishers’ in defamation proceedings under Section 499 of the Indian Penal Code, 1860.
The case originated in 2008 when two user articles containing defamatory statements alleging M/s Visakha Industries, a prominent asbestos manufacturer, indulged in corruption were posted on a Google Group. Visakha sent a takedown notice to Google India and later filed criminal complaints against Google for criminal defamation.
The Supreme Court held that since the complaint was filed prior to the substitution of Section 79 with the current version that provides expanded safe harbour protection, the extent of intermediary liability needed to be assessed as per the unamended Section 79 in existence in mid-2008. The question before the Court was whether Google had ‘published’ the articles to meet the threshold laid down in Section 499 of the Penal Code. The Court held that there may be publication if an intermediary capable of removing content, refuses to do so. Accordingly, the Court ordered that Google did not take down the content and thus the case was not liable to be quashed. It directed that the trial must proceed in the lower Court.
In conclusion, while the judgment does not have any immediate consequences given that Section 79 of the Act now specifically exempts intermediaries, it is relevant for internet service providers who are now capable of being considered ‘publishers’ under the criminal defamation law in India.