GOOGLE INDIA PRIVATE LIMITED versus M/S. VISAKHA INDUSTRIES on 10 December 2019

1. As far as the offence of defamation is concerned, eventhough the offence under Section 500 is non-cognizable underDthe First Schedule to the Cr.PC, the matter would not begoverned by paragraph 2 of the judgment of this Court in BhajanLal 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 thatproceeding is manifestly attended with mala fide and/or wherethe proceeding is maliciously instituted with an ulterior motiveEfor wrecking vengeance on the appellant with a view to spitehim 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.F

2. Whether Section 79 of the Information Technology Act,2000, as it stood prior to the substitution, would provide a shieldto an intermediary.

2.1 Section 79, before its substitution, exempted theNetwork Service Provider, which is defined as an intermediary,Gfrom liability under the Act, Rules or Regulations madethereunder in regard to any third-party information or data madeavailable by him provided the Service Provider: Proves that theoffence or contravention was committed without his knowledgeand that the Service Provider proves that he had exercised allHdue diligence to prevent the commissioning of such offences or contraventions. This provision may be contrasted with the lateravtar of Section 79 of the Act consequent upon substitution witheffect from 27.10.2009. Sub-Section (1) of Section 79, inunambiguous words, declares by way of a non-obstante clausethat in spite of anything contained in any law which is in force,though subject to the provisions of sub-Sections (2) and (3), anintermediary would not be liable for any third-party information,data or communication link hosted by him. [Paras 59, 61] [691-E-H; 692-A]

2.2 The scope of Section 79, before its substitution, wasconfined to confer immunity from liability in regard to an offenceunder the Act or the Rules or Regulations qua third- party actionor data made available and it was not a bar to the complaintunder Section 500 of the IPC being launched or prosecuted. Thecomplaint relates to a period, much prior to the substitution ofSection 79 of the Act, which ultimately took place only with effectfrom 27.10.2009. Assuming for the purpose of argument that theoffence or contravention could relate to even Section 500 of theIPC, even then, for the protection given by the provisions, as itstood at the time when the offence alleged against the appellantwas allegedly committed by it, to apply, it would becomeincumbent upon the appellant to prove that the offence or thecontravention was committed without its knowledge and that ithad taken all due diligence to prevent the commission of suchoffence or contravention. However, it is undoubtedly true thatthe scope of the protection afforded to the intermediary standsremarkably expanded with the substituted provisions of Section79 coming into force, no doubt, subject to the conditionsattached thereunder. [Paras 63-64] [692-B-D-E-H; 693-A-C]

3. Whether this court is obliged to decide the questionthat the appellant is an intermediary or it is Google LLC whichis the intermediary.

It is true that a perusal of the petition before the HighCourt reveals that appellant has purported to take up thecontention that the website is the service offered by the GoogleInc, the parent company of the appellant and that the servicesare provided by the parent company directly to the users. It iscontended by the complainant that the appellant did not clarifyby way of answer to the query by the court as to what activities AB

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Athey indulge in India. The Memorandum of Association isreferred to contend that the main objects include providingnetwork related products or services and applications. It is thecase of the complainant further that in fact the entire operationsof Google Economic Entity, the users are provided digital spacepurportedly free but are made to part with their personal dataBas consideration. The onus would be on the appellant if it seeksto dispel this fact to lead evidence to show that the appellantdoes not have any role to play in the activities of Google. As towhether, it is Google INC, which is responsible for the GoogleGroups and the appellant is not, it is contended by theCcomplainant, is a matter for evidence. It cannot be determinedon the basis of photocopies of documents filed with the paperbooks before this Court. This is not a case where the High Courtcould be invited particularly in the light of the stand of thecomplainant to decide in favour of the appellant by holding thatit is the parent company which is the actual intermediary andDnot appellant. The proceedings are at the stage where the HighCourt appear to have entered a finding in favour of the appellantin the Second Appeal filed under Section 100 of the Code of CivilProcedure, 1908. However, it is common case that both partieshave filed Review Petitions. In other words, the matter has notEyet attained finality. [Paras 80, 81, 83] [702-H; 703-A-E-H; 704-A-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: AFBRIEF OVERVIEW OF THE LAW OF DEFAMATION

4.1 The essence of the offence of defamation, as definedin Section 499, would consist of words either spoken or intendedto be read or by signs or by visible representations making orpublishing any imputation concerning any person with theGintention to harm or knowing or having reason to believe thatsuch imputation will harm the reputation of that person subjectto the Exceptions and Explanations which follow the mainprovision. Explanation II declares that it may amount todefamation to make an imputation concerning a company or anassociation or collection of persons as such. [Para 98] [710-A-HB]

4.2 It is undoubtedly true that the first Exception exemptsfrom criminal liability, statements which are true and which arerequired for public good. It would not be appropriate, proper orlegal for the court to accept the submission of the appellant thatthe post in question do not constitute defamation. This is for thereason that such an exercise would be out of bounds in the factsof this case, in particular, in a petition filed under Section 482of the Cr.PC. As to whether it constitute defamation and as towhether it falls in any of the Explanations/Exceptions, would beall matters to be decided by the court. [Paras 99, 101] [710-D-E; 711-D-E]

5. Under Section 499 of the IPC, the Law Giver has madethe making or publishing of any imputation with a requisiteintention or knowledge or reason to believe, as providedtherein, that the imputation will harm the reputation of anyperson, the essential ingredients of the offence of defamation.[Para 104] [713-B]

Mohd. Abdulla Khan v. Prakash K. (2018) 1 SCC615 : [2017] 12 SCR 9 – relied on.

6. The criminal offence of defamation under Section 499of the IPC is committed when a person makes a defamatoryimputation which, would consist of the imputation being conveyedto the person about whom the imputation is made. A publication,on the other hand, is made when the imputation is communicatedto persons other than the persons about whom the defamatoryimputation is conveyed. A person, who makes the defamatoryimputation, could also publish the imputation and thus could bethe maker and the publisher of a defamatory imputation. On theother hand, a person may be liable though he may not have madethe statement but he publishes it. [Para 107] [715-C-D]

M.C. Verghese v. T.J. Poonan and Another (1969) 1SCC 37 : [1969] 2 SCR 692 – referred to.

Google Spain SL, Google Inc. v. Agencia Espanola deProteccion de Datos (AEPD), Mario Costeja GonzalezECLI : EU : C : 2014 : 317 ; Byrne v. Deane (1937)1 KB 818 ; Payam Tamiz v. Google Inc. (2013) EWCACB 68 ; Bunt v. Tilley (2006) EWHC 407 ; Godfrey v.Demon Internet Limited (2001) QB 201 – referred to.

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A7. EFFECT OF SUBSTITUTION OF SECTION 79 OFTHE ACT

Section 79 of the Act came to be substituted with effectfrom 27.10.2009.In this case, the complaint itself is dated21.01.2009. The Magistrate has issued summons to theBappellant calling upon him to appear before the Court on09.09.2009. If that be so, not only was the complaint filed at thetime when Section 79, in its erstwhile avtar, was in force beforethe present provision was enforced, cognizance thereunder wasalso taken. If that be so, the question of exemption from liabilitymay fall to be decided under Section 79 of the Act as it stoodCand not under the substituted provision.[Paras 133-135] [730-H; 731-E-F; 733-G-H]

8. WHETHER APPELLANT NOT LIABLE AS IT ISONLY A SUBSIDIARY

DThe question whether being a subsidiary of Google LLC,the appellant is an independent body which is not to be mulctedwith 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 proceededEto refer to the notices, which was, according to the complaint,issued, calling upon the appellant to remove the objectionablepost. It is found that the appellant did not move its little fingerto stop dissemination of the unlawful and objectionable material.This finding is afflicted with two flaws. In the first place, the HighCourt itself has found that Section 79, as it originally wasFenacted, had nothing to do with offences with laws other thanthe Act. Section 79, as originally enacted, did not deal with theeffect of other laws. In short, since defamation is an offenceunder Section 499 of the IPC, Section 79, as it stood beforesubstitution, had nothing to do with freeing of the appellant fromGliability under the said provision. Secondly, there is a case forthe appellant that on receipt of notice, the appellant, as a gesture,forwarded its complaint to its Parent Company which called forthe details on 06.01.2009. The complaint came to be filed on21.01.2009. The High Court was not justified, therefore, inentering findings in the manner it was done. Even Section 79,Has substituted with effect from 27.10.2009, denies the benefit of the exemption in a case where there is a conspiracy betweenthe intermediary or abetting or aiding or inducing or otherwisein the commission of the unlawful act. Again, the case in thecomplaint is that there was connivance between the accused.This is not a matter to be proceeded under Section 482 of theCr.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 asto who published it, is a question of fact. Publication involvesbringing defamatory matter to the knowledge of a person orpersons other than the one who is defamed. Whether there ispublication, indeed involves asking the question as to whetherthere was power and the right to remove any such matter. Ifdespite such power, and also, ability to remove the matter, if theperson does not respond, it would amount to publication. Thesaid principle, would hold good even to determine whether thereis publication under Section 499 of the IPC. The furtherrequirement is it must contain imputations with the intention toharm or with knowledge or having reasons to believe that it willharm the reputation of the person concerned. In this case, thesubstantial complaint appears to be based on the refusal by theappellant to remove the matter after being notified. Publicationwould be the result even in the context of a medium like theinternet by the intermediary if it defies a court order and refusesto takedown the matter. [Paras 141, 142] [734-H; 735-A-E]

11. What is declared a crime in Section 499 of the IPC isthe making or publishing of matter which defames, as describedin the Section. The making or publication must be alsoaccompanied with the intention or knowledge requisite asmentioned in the Section to constitute that act a crime. Therewas a notice, admittedly received from the complainant by theappellant, dated 09.12.2008, calling upon the appellant to, interalia, remove the controversial post. It is the appellant’s case thatsince it did not control the services and as the notice did notconcern its activities, the appellant forwarded the legal noticeto its Parent Company for its response. Appellant furthercontended before the High Court that the Parent Company, in A

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Aturn, responded to the complainant on 06.01.2009. Since, thenotice issued by the complainant did not denote the space andservices which allegedly host the defamatory articles, thecomplainant was asked to provide the exact details. As towhether there is justification for the Parent Company in requiringthe complainant to provide the URL so that the offending postBcould be identified and dealt with and dehors it whether it couldremove the post, is again a matter, which it may not be possibleto 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 AnotherC(2015) 11 SCC 776 : [2015] 3 SCR 719 ; SharatBabu Digumarti v. Government (NCT of Delhi) (2017)2 SCC 18 : [2016] 8 SCR 1015 ; Abhijit Pawar v.Hemant Madhukar Nimbalkar and Another (2017) 3SCC 528 : [2016] 9 SCR 475; Anvar P.V. v. P.K.DBasheer and Others (2014) 10 SCC 473 : [2014] 11SCR 399 ; Shivjee Singh v. Nagendra Tiwari andOthers (2010) 7 SCC 578 : [2010] 7 SCR 667 ;Secretary, Ministry of Information and Broadcasting,Government of India and Others v. Cricket AssociationEof Bengal and Others (1995) 2 SCC 161 : [1995] 1SCR 1036 ; Gambhirsinh R. Dekare v. FalgunbhaiChimabhai Patel and Another (2013) 3 SCC 697 :[2013] 4 SCR 719 ; Avnish Bajaj v. State (N.C.T. ofDelhi) 116 (2005) DLT 427 ; New Horizons Limitedand Another v. Union of India and Others (1995) 1FSCC 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 ; JeffreyJ. Diermeier and Another v. State of West Bengal andAnother (2010) 6 SCC 243 : [2010] 7 SCR 128 ; SomGMittal v. Govt. of Karnataka (2008) 3 SCC 753 :[2008] 2 SCR 323 ; State of Rajasthan v. MangilalPindwal (1996) 5 SCC 60 : [1996] 3 Suppl. SCR 98– referred to.

Richardson v. Facebook (2015) EWHC 3154 (QB) –Hreferred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1987 of 2014.

From the Judgment and Order dated 19.04.2011 of the HighCourt of Judicature of Andhra Pradesh at Hyderabad in CriminalPetition No. 7207 of 2009

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Sajan Poovayya, Sr. Adv., Ms. Priyadarshi Banerjee, PratibhanuSingh Kharola, Mahesh Agarwal, Ankur Saigal, Nishant Rao, SaranshJain, Madhavan Sharma, Divyang Gobind Chandiramani, E. C.Agrawala, Advs. for the Appellant.

Ms. Madhavi Divan, ASG, P.S. Narasimha, Sr. Adv. SridharBPotaraju, Ms. Shiwani T., Ms. Sindoora V.N.G., Ms. Shweta Parihar,Rahul G. Tanwani, V.C. Shukla, Ms. Nisha Bagchi, Ms. Vimla Sinha,Rajat Nair, G.S. Makker, Advs. for the Respondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.C

1. The appellant is the second accused in criminal complaint filedby the first respondent (hereinafter referred to as ‘complainant’, forshort). The appellant filed a Petition under Section 482 The Code ofCriminal Procedure, 1973 (hereinafter referred to as ‘the Cr.PC’, forDshort), seeking to quash the order passed by the Magistrate summoningthe appellant pursuant to the complaint which seeks to invoke Sections120B, 500 and 501 read with Section 34 of the Indian Penal Code, 1860(hereinafter referred to as ‘the IPC’, for short).

THE COMPLAINTE

2. The complainant is a public limited company engaged in thebusiness of manufacturing and selling asbestos cement sheets with sevenmanufacturing plants and more than twenty-five marketing offices allover India. It is further, inter alia, stated that the product ismanufactured in all its plants in an environment friendly manner. TheFfirst accused is alleged to be the Coordinator of Ban Asbestos India, agroup hosted by the appellant. Articles are regularly published in thesaid group. On 21.11.2008, an article was published. It was captioned“Poisoning the system: Hindustan Times”. The complaint targetedrenowned politicians of the country who were named and who hadnothing to do with the ownership and management of the company.GComplainant pleads shock on seeing the article dated 31.07.2008captioned “Visaka Asbestos Industries making gains”. It is stated thatasbestos cement sheets have been manufactured for more than 70years in India. First accused singled out the complainant though thereare other groups manufacturing asbestos cement products. The relevantHpart, which is pertinent to the appellant is contained in paragraph-11:

“11. Complainant most humbly and respectfully submits that theAccused No.1’s statement in the articles in the above mentionedgroup hosted by the Accused No.2 is filled with hatred towardsComplainant which is defamatory in nature, and which a personof ordinary intelligence in society would believe the saidstatements. Indeed the said statement injured the reputation ofComplainant. The act of the accused in posting certaindefamatory articles in the cyber space, which is visited byinnumerable internet surfers which has vide usage all over theworld in who’s mind the complainant company is being causedwith such defamatory false statements. The service provider likeAccused No.2 has made it easier than ever before to disseminatedefamatory statements to the world wide audience without takingany due care and diligence to prevent it. The Accused No.2 hasabused the services provided by it, because both the articles inthe group hosted by it was targeted towards a particular companywhich is well within the knowledge of the Accused No.2.”

3. Cause of action is mentioned at paragraph-15 and it reads asfollows:

“15. CAUSE OF ACTION: Cause of Action for the complainantarose on 31[st] July, 2008, when an article “Visaka AsbestosIndustries making gains” was disseminated by accused no.1 in“Ban asbestos India” group hosted by accused no.2 and 21[st]November 2008 when the second article “Poisoning the system:Hindustan Times” was disseminated by the accused no.1 in “BankAsbestos India” group hosted by accused no.2 and on 10.12.2008when the notice to withdraw such articles was issued by theComplainant and on subsequent dates.”

4. Jurisdiction is indicated in paragraph-16 of the complaint andit read as follows:

“16. JURISDICTION: The Corporate Office of the Complainantis situated at “Visaka Towers”, 1-8-303/69/3, S.P. Road,Secunderabad. Since the Corporate Office of the ComplainantCompany is situated within the limits of P.S. Ramgopalpet, thisHon’ble Court has got jurisdiction to try this complaint.”

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672SUPREME COURT REPORTS

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5. Deputy Manager (Legal) of the complainant made hisstatement. Thereafter, the appellant came to be summoned. Thesummoning order read as follows:

“SUMMONS TO AN ACCUSED PERSON

(Sec.81 Cr.P.C.)

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In the Court of the XI A.C.M. Magistrate at Secunderabad

c.c. No. 679/2009

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Between:

M/s. Visaka Industries

… Complainant

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Mr. Gopal Krishna & others… Accused

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To,

M/s. Google India Pvt. Ltd.,

3[rd] Floor, Prestige Sigma,

No.3, Vittal Mallya Road,

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Bangalore 560001.

Whereas your attendance is necessary answer to Charge ofU/s.500, 501 of I.P.C. r/w 34 you are hereby directed to appearin person or by pleader before the Hon’ble XI A.C.M.M. CourtFon the day 09.09.2009 10.30 A.M.

Dated this……… day ………………

Seal

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Magistrate”

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

7. By the impugned judgment, the High Court has dismissed theHpetition.

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 havebeen relied on by the appellant was found to not exempt a networkservice provider from liability much less criminal liability for the offencesunder other laws or, more particularly, under the IPC. It was furtherfound that the above provision exempted Network Service Providerfrom liability only on proving that the offence or contravention wascommitted without its knowledge or that he had exercised all duediligence 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 thepetition under Section 482 of the Cr.PC.. The Court later notices theamended Section 79 of the Act which came into being with effect from27.10.2009. It was noted that it is only under the said amendment thata non obstante clause was incorporated keeping the application ofother laws outside the purview in a fact situation covered by the saidprovision. Under the amended Section 79, in case the intermediary entersinto any conspiracy, the exemption under Section 79 of the Act couldnot be claimed. So also, the intermediary could not claim exemption incase he fails to expeditiously remove or disable access to theobjectionable material or unlawful activity, even after receiving actualknowledge thereof.

9. The appellant, it was found, did not move its little finger toblock the material or to stop dissemination of the unlawful andobjectionable material in spite of the complainant issuing notice aboutthe dissemination of defamatory material and unlawful activity on thepart of the first accused. Therefore, it was found that the appellantcould not claim any exemption under Section 79 of the Act, prior to itssubstitution, or Section 79 of the Act, after its substitution, which tookeffect from 27.10.2009.

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

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11. We heard Shri Sajan Poovayya, learned senior counselappearing on behalf of the appellant, Shri Sridhar Potaraju the learnedCounsel for the complainant/first respondent-M/s. Visakha Industriesand Ms. Madhavi Divan, learned Additional Solicitor General appearingon behalf of the Union of India.

B12. Shri Sajan Poovayya would contend that services on googlegroups is not provided by the appellant. In other words, the basis ofthe complainant that appellant is the intermediary, is completelyerroneous. The legal notice sent by the complainant, did not makereference to any specific URL. The expansion of URL is UniqueReference Locator which is the address of the content on web to identifyCor locate the objectionable post. Therefore, the notice was invalid. Theappellant, however, as a gesture, made over the said notice dated09.12.2008 to its parent entity, i.e., Google Inc. presently Google LLC.It is Google LLC which owns the Google Group platforms. Google LLCreplied to the legal notice and requested the complainant to provideDspecific URLs. It is without responding to the same that the complaintcame to be filed. It is contended that the complaint proceeds on amistaken premise that the appellant hosts and provides services onGoogle Groups. A further fallacious basis is that the intermediary andhosting service provider is expected to monitor and pre-censorpublication of content on its platform. Error is alleged to underlie theEassumption that hosting of services involves the fact that the intermediaryhost has knowledge of the content posted on a hosting platform. Anindependent publication by an author of any content by itself againdemonstrates absence of any connivance between the author and theintermediary host. There is no case for the complainant that the appellantFis the author or publisher of the allegedly defamatory articles. On theother hand, the complaint itself proceeds on the basis that it is the firstaccused who is the author of the articles.

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

14. The suit filed by the complainant came to be dismissed byjudgment dated 17.02.2014. The complainant succeeded in the firstappeal and the court decreed the suit on 29.01.2016. The appellantsHpreferred 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 againstthe appellant which was the second defendant. It is pointed out thatthe 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 ofUnited States of America. Google LLC owns and operates the GoogleGroups Platforms. The appellant is the subsidiary of the Google LLCGroup. Appellant has its own separate legal identity. The High Courthas ignored that control over the Google Group platform was of GoogleLLC.

16. The learned senior counsel for the appellant drew our attentionto 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 Acthaving its office at Bangalore. Appellant is appointed as a non-exclusivereseller of Google LLC Ads program in India on a principal to principalbasis. The appellant is engaged in business development and promotionalactivity for certain limited products and does not play any role inproviding or administering services as regards Google Groups. It iscontended that appellant is not an agent of Google LLC and it enjoysautonomy in its functions.

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

18. Next, it contended that the ingredients of the offence ofdefamation under Section 499 of the IPC have not been made out. Thefirst ingredient being publication of an imputation has not been satisfiedqua the appellant but only as against the first accused. An intermediary 1 (2013) 3 SCC 330

2 (2015) 11 SCC 776

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Ais neither a publisher of third-party content nor does it have knowledgeof any content unless it is notified through an order of an appropriatecourt or a Government agency. No provision of the Act has beeninvoked. Relying on Sharat Babu Digumartiv. Government (NCT ofDelhi)3and Shreya Singhalv. Union of India4, it is sought to becontended that since no provisions of the Act are invoked, the complaintBis vitiated. It is still further contended that there is no complaint againstthe actual intermediary, viz., Google LLC. It is further contended thatin the context of digital platform, where millions of posts are made, noeditorial control of any sort is exercised by an intermediary in thepublication of any content on such platforms.C19. It is contended that mere hosting of content would beinsufficient to attribute knowledge, and if does not amount to publicationof content. Appellant cannot be attributed with actual knowledge toascribe a mental element. The role is passive. The author originatesthe material and the author is the originator and not the intermediary.DThe person who accesses or reads the content again is not anintermediary but the addressee. Unless the content is brought to theactual knowledge of the intermediary, taking down the material, cannotbe imposed upon the intermediary. Actual knowledge must be that whichis conveyed through a court order or through an appropriateEGovernment agency. The intermediary cannot become a private censoror arbiter of content. The appellant seeks to emphasise upon theadverse impact it would have on freedom of Online Speech andExpression guaranteed under Article 19(1)(A) of the Constitution ofIndia.

F20. The appellant also makes the point that the mandatory inquiryunder Section 202 of the Cr.PC has not been made. The appellant stoodarrayed as an accused denoting its office at Hyderabad, Bengaluru andGurugram whereas the ACJM, whose territorial jurisdiction is limitedto Secunderabad, is the court where the complaint was filed. Section202 of the Cr.PC, has been observed, in its breach by the Magistrate.GThe decision in Abhijit Pawarv. Hemant Madhukar Nimbalkar andanother5, has been enlisted in support in this regard.

3 (2017) 2 SCC 184 (2015) 5 SCC 1H5 (2017) 3 SCC 528

21. A subsidiary does not become liable for the acts of its parentcompany, is another contention. It is also contended that a person cannotbe compelled to perform an impossible act.

CONTENTIONS OF THE COMPLAINANT

22. It is not open to the appellants to have invoked powers underSection 482 of the Cr.PC. The matter involves investigation ofallegations relating to facts. It is pointed out as to whether the appellantis hosting the google group wherein the first accused has publisheddefamatory articles is a question of fact. The question as to whetherthe appellant is or not an intermediary, is a question of fact. As towhether the appellant and Google LLC are managed by different entitiesor the same entity, is another question of fact. The respondent woulddispute the contention that the documents produced by the appellantare of an unimpeachable character. The documents are sought to berelied on without complying with the mandate of Section 65B of TheIndian 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 judicialdiscretion upon examining the complainant to proceed without recourseto the procedure under Section 202 of Cr.PC. There is no pleading ofany prejudice by the appellant nor proof adduced about the same.Regarding this, reliance is placed on judgment of this Court in ShivjeeSinghv. Nagendra Tiwari and others7.

24. Google hosts the Google Groups. The only question of factis whether the appellant is in control of the said Group or it is, asclaimed, controlled by its Parent Company. Hence, the issue is limitedas to the role of appellant and its participation in the business ofproviding Google Groups platform and raising revenues for the samethrough advertisements, etc. apart from marketing it. The appellant, itis contended, cannot be allowed to disown its role in Google Groups.The appellant has withheld the actual nature of the activities it iscarrying on in India. A party must come to court with clean hands. TheMemorandum of Association itself, prima facie, shows that their mainobjects include providing internet related projects and/or services andapplications. There is a common economic entity wherein the users are 6 (2014) 10 SCC 473

7 (2010) 7 SCC 578

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Aprovided digital space purportedly free but are made to part with theirpersonal data as consideration. The said data is used for generatingadvertisement revenues which are targeted as user profile andgeographical location.

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

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

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

28. In the year 2015, there were 3.5 billion people in the worldwho accessed the internet. On Facebook, there were three millionGphotographs updated per day. In every minute, 510 comments and293000 statuses are posted. In 2013, there were 200 billion tweets onTwitter. 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 thesame. Internet, it is pointed out, works on the pull principle where it isthe viewer who has complete control and he exercises his choice as towhat content he would wish to view or read.

29. The internet uses public spectrum and airwaves to transmitsignal. In Secretary, Ministry of Information and Broadcasting,Government of India and othersv. Cricket Association of Bengal andothers9, this Court took the view that the right of the listeners and theviewers and not the broadcasters, is paramount. Airwaves andfrequencies are public property. Monopoly by either Government oranyone 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 iscontended that the very definition of intermediary would reveal that itis not an editor or a publisher as understood in the context of the printmedia. What flows from the definition points to the role being that of afacilitator or conduit rather than a selector or editor of information. Lightis sought to be sourced from the views of this Court in the decision inGambhirsinh R. Dekarev. Falgunbhai Chimabhai Patel and another10 :

“18. Therefore, from the scheme of the Act it is evident that itis the Editor who controls the selection of the matter that ispublished in a newspaper. Further, every copy of the newspaperis required to contain the names of the owner and the Editor andonce the name of the Editor is shown, he shall be held responsiblein any civil and criminal proceeding. Further, in view of theinterpretation clause, the presumption would be that he was theperson who controlled the selection of the matter that waspublished in the newspaper. However, we hasten to add that thispresumption under Section 7 of the Act is a rebuttablepresumption and it would be deemed a sufficient evidence unlessthe contrary is proved. The view which we have taken findssupport from the judgment of this Court in K.M. Mathew v. K.A.Abraham [(2002) 6 SCC 670 : 2002 SCC (Cri) 1480] , in whichit has been held as follows: (SCC p. 676, para 20)

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A“20. The provisions contained in the Act clearly go to show thatthere could be a presumption against the Editor whose name isprinted in the newspaper to the effect that he is the Editor ofsuch publication and that he is responsible for selecting the matterfor publication. Though, a similar presumption cannot be drawnBagainst the Chief Editor, Resident Editor or Managing Editor,nevertheless, the complainant can still allege and prove that theyhad knowledge and they were responsible for the publication ofthe defamatory news item. Even the presumption under Section7 is a rebuttable presumption and the same could be provedotherwise. That by itself indicates that somebody other than editorCcan also be held responsible for selecting the matter forpublication in a newspaper.””

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

D32. Still further, reference is made about the role attributable tothe service provider of internet platforms and that of an originator inthe judgment of this Court in Sharat Babu Digumartiv. GovernmentN.C.T. of Delhi11 in Criminal Appeal No. 1222 of 2016.

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

34. It is contended that there will be a chilling effect on freespeech if one were to allow intermediaries to intervene merely oncomplaints by individuals about being defamed or being at the receivingend of the unfair reporting. If permitted, such intervention would resultFin privatisation of censorship which would be hazardous for freeexpression of ideas.

35. Regarding the extent of the liability of an intermediary, it iscontended that after the amendment in 2008, intermediary’s role as amere facilitator of exchanging information or sales, is recognised.GAccording to Government of India, the pre-amendment situation isexemplified by the subject matter of the decision of the Delhi High Courtin Avnish Bajajv. State (N.C.T. of Delhi)12.

11 (2017) 2 SCC 18H12 116 (2005) DLT 427

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

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

38. The case of In Google Spain SL, Google Inc. v. Agencia13Espanola de Proteccion de Datos (AEPD), Mario Costeja Gonzalez,Case C-131/12, Court of Justice of European Union (ECJ), is importantin this regard. In Google Spain, the ECJ recognized an individual’s rightto be forgotten, enabling a person to obtain removal of search resultswhich violated his/her privacy interests. The case has geographicalimplications: first, would such removal of content be restricted to anEU-audience, and two, does the EU court have the authority to directforeign intermediaries to takedown content. The Court embraced thearguments put forth by Google’s opponents:

(i) That Google’s search engine activities are closely relatedto the activity of selling advertising space, which isprecisely what subsidiaries such as Google’sestablishment in Spain are engaged.

(ii) As a result, the processing activities related to thesearch engine service are also being carried out “in thecontext of the activities” of Google’s Spanish subsidiary.

(iii) The counsels for the plaintiff, Spain and Austria, likewiseemphasised the link between the search engine serviceand the selling of advertising space from a businessmodel perspective; arguing that the activity of Google’sestablishment in Spain should not be regarded as anancillary activity, but rather as an integral part of theprimary activity (i.e. the selling of advertisementspace)(paragraphs 46 to 52).

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A39. The ECJ therefore considered that the activities of the searchengine operator and those of its establishment are “inextricably linked”,as Google’s search engine service is closely related to the activity ofselling advertisement space (paragraph 56). Specifically, the Courtreasoned that, “the activities relating to the advertising space constituteBthe means of rendering the search engine at issue economicallyprofitable and engine is, at the same time, the means enabling thoseactivities to be performed.”(paragraph 56). The Court in paragraphs53 and 54 noted that, the EU’s Data Protection Directive 95/46 “soughtto prevent individuals from being deprived of the protection guaranteedby the directive and that protection from being circumvented, byCprescribing a particularly broad territorial scope.” Based on theseobservations, the ECJ concluded that the processing relating to thesearch engine service should be viewed as taking place “in the contextof the activities of an establishment” located on EU territory (seeparagraphs 53, 54). This case recognizes that the domestic subsidiaryDresponsible for advertising and attracting a user base could be held liablefor the acts of the parent.

40. Our attention is also drawn to the decision in Richardsonv.Facebook14. It is contended that however given that the foreign bodymay not have Indian presence, the corporate veil may be lifted to fixEliability on the subsidiary, if it is established that the latter is an alterego of the foreign company and support is sought to be drawn fromthe judgments of this Court in New Horizons Limited and anotherv.Union of India and others15 and State of U.P. and othersv. Renusagar16Power Company and others.FCONTOURS OF THE JURISDICTION OF THE HIGH COURTUNDER SECTION 482 OF CRIMINAL PROCEDURE CODE, 1973

41. The contours of the jurisdiction of the High Court underSection 482 is no longer res integra. We would think that it is sufficientGif we only advert to the judgment of this Court in State of Haryanaand othersv. Bhajan Lal and others17. This Court held as follows:

14 (2015) EWHC 3154 (QB)15 (1995) 1 SCC 47816 (1988) 4 SCC 59H17 (1992) Supp (1) SCC 335

“102. In the backdrop of the interpretation of the various relevantprovisions of the Code under Chapter XIV and of the principlesof law enunciated by this Court in a series of decisions relatingto the exercise of the extraordinary power under Article 226 orthe inherent powers under Section 482 of the Code which wehave extracted and reproduced above, we give the followingcategories of cases by way of illustration wherein such powercould be exercised either to prevent abuse of the process of anycourt or otherwise to secure the ends of justice, though it maynot be possible to lay down any precise, clearly defined andsufficiently channelised and inflexible guidelines or rigid formulaeand to give an exhaustive list of myriad kinds of cases whereinsuch power should be exercised.

(1) Where the allegations made in the first information reportor the complaint, even if they are taken at their facevalue and accepted in their entirety do not prima facieconstitute any offence or make out a case against theaccused.

(2) Where the allegations in the first information report andother materials, if any, accompanying the FIR do notdisclose a cognizable offence, justifying an investigationby police officers under Section 156(1) of the Codeexcept under an order of a Magistrate within thepurview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIRor complaint and the evidence collected in support ofthe same do not disclose the commission of any offenceand make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute acognizable offence but constitute only a non-cognizableoffence, no investigation is permitted by a police officerwithout an order of a Magistrate as contemplated underSection 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint areso absurd and inherently improbable on the basis ofwhich no prudent person can ever reach a justconclusion that there is sufficient ground for proceedingagainst the accused.

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A(6) Where there is an express legal bar engrafted in any ofthe provisions of the Code or the concerned Act (underwhich a criminal proceeding is instituted) to theinstitution and continuance of the proceedings and/orwhere there is a specific provision in the Code or theconcerned Act, providing efficacious redress for theBgrievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended withmala fide and/or where the proceeding is maliciouslyinstituted with an ulterior motive for wreaking vengeanceon the accused and with a view to spite him due toCprivate and personal grudge.

103. We also give a note of caution to the effect that the powerof quashing a criminal proceeding should be exercised verysparingly and with circumspection and that too in the rarest ofrare cases; that the court will not be justified in embarking uponDan enquiry as to the reliability or genuineness or otherwise ofthe allegations made in the FIR or the complaint and that theextraordinary or inherent powers do not confer an arbitraryjurisdiction on the court to act according to its whim or caprice.”

42. As to what is the scope of the expression “rarest of rareEcases” indicated in paragraph 103, we may only refer to the judgmentof this Court in Jeffrey J. Diermeier and anotherv. State of West Bengaland another18 wherein the law laid down by a Bench of three Judgesin Som Mittalv. Govt. of Karnataka19 has been referred to:

“23. The purport of the expression “rarest of rare cases”, toFwhich reference was made by Shri Venugopal, has beenexplained recently in Som Mittal (2) v. Govt. ofKarnataka [(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)

G“9. When the words ‘rarest of rare cases’ are used after thewords ‘sparingly and with circumspection’ while describing thescope of Section 482, those words merely emphasise and reiteratewhat is intended to be conveyed by the words ‘sparingly and with 18 (2010) 6 SCC 243H19 (2008) 3 SCC 753

circumspection’. They mean that the power under Section 482to quash proceedings should not be used mechanically orroutinely, but with care and caution, only when a clear case forquashing is made out and failure to interfere would lead to amiscarriage of justice. The expression ‘rarest of rare cases’ isnot used in the sense in which it is used with reference topunishment for offences under Section 302 IPC, but to emphasisethat the power under Section 482 CrPC to quash the FIR orcriminal proceedings should be used sparingly and withcircumspection.”

43. Applying the principles, the question would be whether theappellant had made out a case for granting relief in proceedings underSection 482 of the Cr.PC. As far as the offence of defamation isconcerned, even though the offence under Section 500 is non-cognizableunder the First Schedule to the Cr.PC, the matter would not be governedby paragraph 2 of the judgment of this Court in Bhajan Lal(supra) asthe 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 proceedingis manifestly attended with mala fide and/or where the proceeding ismaliciously instituted with an ulterior motive for wrecking vengeanceon the appellant with a view to spite him due to private and personalgrudge.

44. Next, we must consider whether there is any express legalbar engrafted in any provisions of the Code or the Act governing thefield to the institution and continuance of the proceedings. It is herethat provisions of Section 79 of Information Technology Act, 2000 wouldassume significance.

45. Section 79 of the Information Technology Act, as it wasenacted originally, read as follows:

“Chapter XII

NETWORK SERVICE PROVIDERS NOT TO BE LIABLEIN CERTAIN CASES

79. Network Service Providers not to be liable in certain cases:

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AFor the removal of doubts, it is hereby declared that no personproviding any service as a network service provider shall be liableunder this Act, rule or regulations made thereunder for any thirdparty information or data made available by him if he proves thatthe offence or contravention was committed without hisknowledge or that he had exercised all due diligence to preventBthe 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 dealtCwith by a network service provider in his capacity asan intermediary.”

46. The said provision was substituted by the InformationTechnology (Amendment) Act of 2008. It came into force onD27.10.2009. It reads as follows:

“79 Exemption from liability of intermediary in certain cases:

(1) Notwithstanding anything contained in any law for the timebeing in force but subject to the provisions of sub-sections (2)and (3), an intermediary shall not be liable for any third partyinformation, data, or communication link hosted by him.

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(2) The provisions of sub-section (1) shall apply if- (a) the function of the intermediary is limited to providingaccess to a communication system over whichinformation made available by third parties is transmittedor temporarily stored; or F

(b) the intermediary does not-

(i) initiate the transmission,

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(iii) select or modify the information contained in thetransmission

(c) the intermediary observes due diligence whiledischarging his duties under this Act and also observessuch other guidelines as the Central Government mayprescribe in this behalf (Inserted Vide ITAA 2008)

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(3) The provisions of sub-section (1) shall not apply if- (a) the intermediary has conspired or abetted or aided orinduced whether by threats or promise or otherwise inthe commission of the unlawful act (ITAA 2008)

(b) upon receiving actual knowledge, or on being notifiedby the appropriate Government or its agency that anyinformation, data or communication link residing in orconnected to a computer resource controlled by theintermediary is being used to commit the unlawful act,the intermediary fails to expeditiously remove or disableaccess to that material on that resource without vitiatingthe evidence in any manner.

Explanation:- For the purpose of this section, the expression “thirdparty information” means any information dealt with by anintermediary in his capacity as an intermediary.”

47. The High Court has contrasted the earlier avtar of Section79 with the newly inserted provisions and held as follows:

“4. … In the case on hand, in spite of the 1[st] respondent issuingnotice bringing the petition about dissemination of defamatorymaterial and unlawful activity on the part of A-1 through themedium of A-2, the petitioner/A-2 did not move its little fingerto block the said material or to stop dissemination of the unlawfuland objectionable material. Therefore, the petitioner/A-2 cannotclaim any exemption either under Section 79 of the Act as it stoodoriginally or Section 79 of the Act after the amendment whichtook effect from 27.10.2009. the present case in the lower courtwas instituted in January, 2009 relating to the offences which arebeing perpetrated from 31.07.2009 onwards, i.e., since long priorto the amendment of the said provision.”

48. The discussion of the High Court regarding Section 79 revealsthe following findings:

a. The earlier version of Section 79 kept at bay the impactof other laws. After the amendment, Section 79 affordsexemption from any other law in respect of the third-party information subject to sub-Section (2) of Section79.

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Ab. Intermediary under the extant provisions of Section 79cannot seek refuge in Section 79 if it failed toexpeditiously remove or disable access to theobjectionable material or unlawful activity even afterreceiving actual knowledge thereof.

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c. In the case, it is found that in spite of the first respondentcomplaint issuing notice about dissemination ofdefamatory information on the part of A1-accused no.1-appellant did not move its little finger to block thematerial or to stop dissemination of unlawful andobjectionable material. This conduct of the appellantdisentitles it from claiming protection either under theprovisions of the unamended Section 79 or under Section79 after substitution. The offence in this case wasperpetuated from 31.07.2008 onwards since long priorto the substitution.

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

50. Section 79 is a safe harbour provision. Internet intermediariesgive access to host, disseminate and index content, products andEservices originated by third parties on the internet. There are differentkinds of intermediaries. They include:

i. Internet Access and Service Provider (ISP). Examplesare given in this category of Airtel, Vodafone, BSNLamong others; F

ii. Data Processing and Web Hosting Providers. Examplesinclude Godaddy and Bigrock;

iii. Internet Search Engines and Portals like Google, Yahooand Binge; Giv. E-mail hosts like gmail (Google) and yahoomail;

v. Then there are instant messaging platforms such asWhatsapp, Facebook Messenger, Skype, etc.;

vi. E-commerce intermediaries where the platforms do nottake title to the goods being sold like Amazon India,HFlipkart, etc.;

vii. Internet Payment Systems and Mobile Walleters likePaytm, etc.;

viii. There are also participative internet platforms.

51. The 2008 amendment introduced Chapter XII to theInformation Technology Act. The amendment was in the backgroundof the decision of the Delhi High Court in Avinash Bajajv. State (NCT20of Delhi).

52. Intermediaries stand on a different footing being onlyfacilitators 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 informationor data made available by him as seen in the Bazeed(supra). Afterthe amendment, intermediary is not liable under any Act if it satisfiedcertain requirements as detailed in Section 79.

53. After referring to the decision in Shreya Singhal(supra), theGovernment of India has understood the position at law to be thatSection 79 stands read down to mean that an intermediary would needto takedown information only upon receiving actual knowledge that acourt order has been passed to remove or disable certain material andnot otherwise. The further stand of the Government of India is thusthere is a recognition that intermediaries and neutral platforms are onlyfacilitating information. It is further pointed out on behalf of theGovernment of India that the interpretation placed by this Court in ShreyaSinghal(supra) was not available to the High Court when it passed theimpugned order in this case. Shreya Singhalmakes it clear that anintermediary’s liability will not arise unless it failed to take down materialupon there being actual knowledge by court order or governmentcommunication. This safeguard has been put in place to avoid chillingaffect on free speech. The intermediaries would, if a contrary view istaken, stand elevated to the status of super censors and denude theinternet 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 isposted on its platforms by itself and, therefore, the strict liability principle 20 116/2005 DLT 427

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Acannot be made applicable to internet intermediaries. It is the specific-stand of the Government of India that even preamendment, anintermediary could not know the contents of what is posted on itswebsite and, therefore, be held liable in the absence of a takedown orderby a court or Governmental Agency.

B55. The Government of India, it is also noticed, has perceived adistinction between blocking under Section 69A of the InformationTechnology Act and takedown under Section 79 of the InformationTechnology Act. Section 69A reads as follows:

“69A, Power to issue directions for blocking for public accessCof any information through any computer resource

(1) Where the Central Government or any of its officerspecially authorized by it in this behalf is satisfied thatit is necessary or expedient so to do in the interest ofsovereignty and integrity of India, defence of India,Dsecurity of the State, friendly relations with foreign statesor public order or for preventing incitement to thecommission of any cognizable offence relating to above,it may subject to the provisions of sub-sections (2) forreasons to be recorded in writing, by order direct anyagency of the Government or intermediary to blockEaccess by the public or cause to be blocked for accessby public any information generated, transmitted,received, stored or hosted in any computer resource.

(2) The procedure and safeguards subject to which suchblocking for access by the public may be carried outFshall be such as may be prescribed.

3) The intermediary who fails to comply with the directionissued under sub-section (1) shall be punished with animprisonment for a term which may extend to sevenyears and also be liable to fine.”

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56. It is pointed out that the grounds under which Governmentissues directions for blocking information are limited and confined tomatters relating to national security, public order and the like. The powerdoes not expand to blocking any case of defamation, contempt of court,etc. A blocking order under Section 69A cannot be passed for criminalHdefamation as it does not fall under the scope of Section 69A.

Therefore, if a party is aggrieved by posting of a defamatory contenton website, he must seek recourse to the court process for adjudication.The matter can be directed to be removed or access disabled underSection 79(3) of the Information Technology Act. Since, the Courtprocess can be long drawn, the aggrieved party may seek an interimorder 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 wassubstituted. However, we deem it proper to delineate its scope in viewof the fact that if there is an express legal bar to attach criminal liabilityupon the appellant under the Act, it would become a matter ofjurisdiction. It is also the stand taken by the Government of India thatthere be no liability on the intermediary under Section 79 of the Actprior to the substitution as we have set out herein before.

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

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

60. In our view, Section 79, before its substitution, exempted theNetwork Service Provider, which is defined as an intermediary, fromliability under the Act, Rules or Regulations made thereunder in regardto any third-party information or data made available by him providedthe Service Provider:

1. Proves that the offence or contravention was committedwithout his knowledge;

2. The Service Provider proves that he had exercised alldue diligence to prevent the commissioning of suchoffences or contraventions.

61. This provision may be contrasted with the later avtar ofSection 79 of the Act consequent upon substitution with effect from27.10.2009. Sub-Section (1) of Section 79, in unambiguous words, AB

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Adeclares by way of a non-obstante clause that in spite of anythingcontained in any law which is in force, though subject to the provisionsof sub-Sections (2) and (3), an intermediary would not be liable for anythird-party information, data or communication link hosted by him. Theconditions are set out in sub-Section (2).B62. As we have noticed, the scope of Section 79, before its B62. As we have noticed, the scope of Section 79, before itssubstitution, was confined to confer immunity from liability in regard toan offence under the Act or the Rules or Regulations qua third-partyaction or data made available. In this regard, it must be noticed thatChapter XI of the Act deals with the offences. Sections 65 to 67B dealswith various offences under the Act. This is besides Sections 71, 72A,C73 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 wasprior to the substitution, was indeed confined to the liability of theNetwork Service Provider arising out of the provisions of the Actbesides, no doubt, Rules and Regulations, and it was not, in short, aDbar to the complaint under Section 500 of the IPC being launched orprosecuted.

63. The complaint relates, in short, to a period, much prior to thesubstitution of Section 79 of the Act, which ultimately took place onlywith effect from 27.10.2009. The court, in Shreya Singhal(supra), wasEnot considering the provisions of Section 79 as it stood before thesubstitution on 27.10.2009 which is what the High Court has focussedon to find that it was not open to the appellant to seek shelter underSection 79. No doubt, there are certain observations which have beenmade by the High Court regarding notice to the petitioner, which wewill dwell upon.F

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 itssubstitution. As we have noted, the Law Giver has given protection fromliability not unconditionally. It is for the Service Provider to prove thatGthe offence or contravention was committed without his knowledge.He is also to prove that he has exercised all due diligence to preventthe commission of such offence or contravention. We will, for thepurpose of argument, assume that the offence or contravention couldrelate to even Section 500 of the IPC. Even then, for the protectionHgiven by the provisions, as it stood at the time when the offence alleged against the appellant was allegedly committed by it, to apply, it wouldbecome incumbent upon the appellant to prove that the offence or thecontravention was committed without its knowledge and that it had takenall due diligence to prevent the commission of such offence orcontravention. It may be at once noticed that in reality the scope ofSection 79 of the Act, prior to the substitution, was limited to grantingexemption to the Network Service Provider from any liability under theAct, Rules or Regulations made thereunder, no doubt, in regard to third-party information or data available by him. The commission of anoffence under Section 500 of the IPC, would not be a liability underthe Act or a Rules, or Regulations made under the Act. However, it isundoubtedly true that the scope of the protection afforded to theintermediary stands remarkably expanded with the substituted provisionsof Section 79 coming into force, no doubt, subject to the conditionsattached thereunder and as explained by this Court in Shreya Singhal(supra).

65. The Government of India, no doubt, has contended that theHigh Court did not have the benefit of judgment of this Court in ShreyaSinghal(supra). We may notice that what is considered in ShreyaSinghal(supra) was Section 79 after substitution. There was a challengemounted to the constitutionality of Section 79. This Court held as follows,inter alia:

“120. One of the petitioners’ counsel also assailed Section79(3)(b) to the extent that it makes the intermediary exercise itsown judgment upon receiving actual knowledge that anyinformation is being used to commit unlawful acts. Further, theexpression “unlawful acts” also goes way beyond the specifiedsubjects delineated in Article 19(2).

121. It must first be appreciated that Section 79 is an exemptionprovision. Being an exemption provision, it is closely related toprovisions which provide for offences including Section 69-A. Wehave seen how under Section 69-A blocking can take place onlyby a reasoned order after complying with several proceduralsafeguards including a hearing to the originator and intermediary.We have also seen how there are only two ways in which ablocking order can be passed—one by the Designated Officerafter complying with the 2009 Rules and the other by theDesignated Officer when he has to follow an order passed by a AB

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competent court. The intermediary applying its own mind towhether information should or should not be blocked is noticeablyabsent in Section 69-A read with the 2009 Rules.

122. Section 79(3)(b) has to be read down to mean that theintermediary upon receiving actual knowledge that a court orderhas been passed asking it to expeditiously remove or disableaccess to certain material must then fail to expeditiously removeor disable access to that material. This is for the reason thatotherwise it would be very difficult for intermediaries like Google,Facebook, etc. to act when millions of requests are made andthe intermediary is then to judge as to which of such requestsare legitimate and which are not. We have been informed thatin other countries worldwide this view has gained acceptance,Argentina being in the forefront. Also, the Court order and/orthe notification by the appropriate Government or its agency muststrictly conform to the subject-matters laid down in Article 19(2).Unlawful acts beyond what is laid down in Article 19(2) obviouslycannot form any part of Section 79. With these two caveats, werefrain from striking down Section 79(3)(b).

123. The learned Additional Solicitor General informed us that itis a common practice worldwide for intermediaries to have useragreements containing what is stated in Rule 3(2). However, Rule3(4) needs to be read down in the same manner as Section79(3)(b). The knowledge spoken of in the said sub-rule must onlybe through the medium of a court order. Subject to this, theInformation Technology (Intermediaries Guidelines) Rules, 2011are valid.

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124.3. Section 79 is valid subject to Section 79(3)(b) being readdown to mean that an intermediary upon receiving actualknowledge from a court order or on being notified by theappropriate government or its agency that unlawful acts relatableto Article 19(2) are going to be committed then fails toexpeditiously 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 inthe same manner as indicated in the judgment.”

66. The Court also was considering the challenge to the provisionsof the Information Technology (Intermediaries Guidelines) Rules, 2011(hereinafter referred to as ‘the Rules’ for short). The Rules werebrought 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 Policyand User Agreement. The intermediary is to intimate the user not touse certain matter which include defamatory matter. Rule 3(3) of theRules provided that the intermediary was not to knowingly host orpublish any information, inter alia, contained, as specified in sub-Rule(2). Thus, under the Rules, the intermediary could not knowingly hostor publish information which was, inter alia, defamatory. Rule 3(4) ofthe Rules, read as follows:

“3. Due diligence to he observed by intermediary — Theintermediary shall observe following due diligence whiledischarging his duties, namely : —

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(4) The intermediary, on whose computer system the informationis stored or hosted or published, upon obtaining knowledge byitself or been brought to actual knowledge by an affected personin writing or through email signed with electronic signature aboutany such information as mentioned in sub-rule (2) above, shallact within thirty six hours and where applicable, work with useror owner of such information to disable such information that isin contravention of sub-rule (2). Further the intermediary shallpreserve such information and associated records for at leastninety days for investigation purposes,”

67. It is clear that the entire discussion came to be made in thecontext of the challenge to the provisions of Section 79 aftersubstitution. No doubt, there are observations, which have been made,the effect of which we shall deal with to the extent that is relevant tothis case. What is relevant is, for the purpose of deciding this case, weare of the view that this may not be the case where there is an expresslegal 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 criminalcomplaint and the question to be considered is whether the offence, asalleged in the complaint, was committed or not.

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AWHETHER “RAJIV THAPAR AND OTHERS V. MADAN LALKAPOOR” WOULD APPLY?

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

69. “Intermediary” has been defined in the Act in Section2(1)(ua)(w), which reads as follows:

“2(1)(ua)(w). “intermediary”, with respect to any particularCelectronic records, means any person who on behalf of anotherperson receives, stores or transmits that record or provides anyservice with respect to that record and includes telecom serviceproviders, network service providers, internet service providers,web-hosting service providers, search engines, online paymentDsites, 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 anyelectronic message to be sent, generated, stored or transmittedEto any other person but does not include an intermediary;”71. Section 2(1)(b) defines the word ‘addressee’ and it reads asfollows:

“(b) “addressee” means a person who is intended by theForiginator to receive the electronic record but does not includeany intermediary;”

72. According to the appellant, this is a case where the HighCourt erred in not considering and answering the question as to whetherthe appellant is an intermediary or not. It is the case of the appellantGthat the appellant is only the subsidiary of Google LLC which is its parentcompany. It is his further submission that the High Court ought to havepermitted the appellant to draw support from terms of service regardingGoogle Groups which convincingly establishes that the services wereprovided by Google LLC and not the appellant. In this regard, relianceHis placed on judgments of this Court in Rajiv Thapar and othersv.

Madan Lal Kapoor21 and HMT Watches Ltd.v. M.A. Abida andanother22. It is contended that Google Groups terms of service is adocument of sterling value being of indisputable character. What isproduced before us is last update seen dated 10.12.2010. Under thesame, there was reference to responsibilities of the originator under thehead ‘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 viathe service. Under appropriate conduct, it is stated as follows:

“5. Appropriate Conduct

You agree that you are responsible for your own conduct andcommunications while using the Service and for anyconsequences thereof. You agree to use the Service only to sendand receive messages and material that are legal, proper andrelated to the particular Group. By way of example, and not aslimitation, you agree that when using the Service, you will not:

defame, abuse, harass, stalk, threaten or otherwiseviolate the legal rights (such as rights of privacy andpublicity) 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 anyparty (the “Rights”), unless you are owner of the Rightsor have the permission of the owner to Post suchContent;

post messages that promote pyramid schemes, chainletters or disruptive commercial messages oradvertisements, or anything else prohibited by the Groupowner; download any file Posted by another user of a Groupthat you know, or reasonably should know, that cannotbe legally distributed in such manner; 21 (2013) 3 SCC 330

22 (2015) 11 SCC 776

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impersonate another person or entity, or falsify or deleteany author attributions, legal or other proper notices orproprietary designations or labels of the origin or sourceof software or other material contained in a file that isPosted; restrict or inhibit any other user from using and enjoyingthe Service; B

use the Service for any illegal or unauthorised purpose; remove any copyright, trademark or other proprietaryrights notices contained in or on the Service; C

interfere with or disrupt the Service or servers ornetworks connected to the Service, or disobey anyrequirements, procedures, policies or regulations ofnetworks connected to the Service; use any robot, spider, site search/retrieval application,or other device to retrieve or index any portion of theService or collect information about users for anyunauthorised purpose; D

submit Content that falsely expresses or implies thatsuch Content is sponsored or endorsed by Google; E

create user accounts by automated means or under falseor fraudulent pretenses; promote or provide instructional information about illegalactivities or promote physical harm or injury against anyFgroup or individual; or transmit any viruses, worms, defects, Trojan horses, orany items of a destructive nature.

International users agree to comply with their own local rulesregarding online conduct and acceptable content, including lawsregulating the export of data to the United States or your countryof residence.

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While Google prohibits such conduct and Content in connectionwith the Service, you understand and agree that you nonetheless H

may be exposed to such conduct and/or Content and that youuse the Service at your own risk.”

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73. We may also notice, under the head “Propriety Rights”,“Google’s Rights”, it is mentioned as follows:

“6. Proprietary Rights

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Google’s Rights

Google and its affiliates and licensors own and retain all rightsin the Service, which contains proprietary and confidentialinformation that is protected by applicable intellectual propertyand other laws. Except as expressly authorised by Google, youmay not copy, modify, publish, transmit, distribute, perform, displayor sell any of Google’s proprietary information. “GOOGLEGROUPS”, are trademarks of Google.”

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74. We may also notice the following under head“Advertisements”:

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“9. Advertisements

Google Groups is an ad-supported service. As such, we displayadvertisements and promotions on the Service. The manner,mode and extent of advertising by Google on the Service aresubject to change. You agree that Google shall not be responsibleor liable for any loss or damage of any sort incurred as a resultof any such dealings or as the result of the presence of suchadvertisers on the Service.”

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75. Also, we noticed the conditions under the heading “Disclaimerof Warranties”:

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“11. Disclaimer of Warranties

Google and its affiliates, licensors, partners, suppliers, consultantsand agents (“Google Entities”) disclaim any and all responsibilityor liability for the accuracy, content, completeness, legality,reliability, or operability or availability of information or Contentdisplayed on the Service. The Google Entities disclaim any andall responsibility and liability for your conduct and for the conductof others using the Service.

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THE SERVICE, AND ALL CONTENT, INFORMATION(INCLUDING, WITHOUT LIMITATION, ANYH

700SUPREME COURT REPORTS

[2019] 17 S.C.R.

AINFORMATION OR CONTENT OBTAINED ORACCESSED THROUGH THE SERVICE), PRODUCTS ANDSERVICES INCLUDED THEREIN ARE PROVIDED “ASIS,” WITH NO WARRANTIES WHATSOEVER. THEGOOGLE ENTITIES EXPRESSLY DISCLAIM TO THEFULLEST EXTENT PERMITTED BY LAW AND EXPRESS,BIMPLIED AND STATUTORY WARRANTIES, INCLUDING,WITHOUT LIMITATION, THE WARRANTIES OFMERHCNTABILITY, FITNESS FOR A PARTICULARPURPOSE, AND NON-INFRINGEMENT OFPROPRIETARY RIGHTS. SOME STATES DO NOT ALLOWCTHE EXCLUSION OR LIMITATION OF IMPLIEDWARRANTIES, SO THE ABOVE DISCLAIMERS ANDEXCLUSIONS MAY NOT APPLY TO YOU.

YOU AGREE THAT YOUR USE OF THE SERVICES AREENTIERLY AT YOUR OWN RISK”

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76. It is further submitted that the terms of service wouldconstitute the entire agreement between the party and Google. Underthe “Google Groups Content Policy”, it was brought to our notice bythe learned Counsel for the appellant that Google has a zero-tolerancepolicy towards the content that exploits children. Google retains theEpower to remove hate speech which is explained as content thatpromotes 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, harassingor bullying other people using Groups. There is again the condition thatgroups cannot be used to encourage any illegal activities or to promoteFdangerous and illegal activities.

77. As far as decision in Rajiv Thapar(supra), relied upon byappellant, is concerned, it involved the following facts. The appellanttherein was married to the deceased. The deceased fell ill and wasadmitted in the hospital. She was diagnosed with as suffering fromGmalaria. After she was discharged, she again fell ill. TheEchocardiography confirmed presence of a large hole in her heart. Shesuccumbed to a massive heart attack. Suspecting poisoning, father ofthe deceased filed the complaint. The Medical Board found death dueto cardiac decompensation. The CFSL Report also indicated noHcommon poison. The Metropolitan Magistrate, who was approached by the father of the deceased, committed the case to the Sessions Courtwho discharged the appellant-accused. The High Court, however, setaside the order. It was in these circumstances, this Court took thefollowing view in regard to the manner in which the matter must beapproached when a party approaches High Court under Section 482of the Cr.PC:

“28. The High Court, in exercise of its jurisdiction under Section482 CrPC, must make a just and rightful choice. This is not astage of evaluating the truthfulness or otherwise of the allegationslevelled by the prosecution/complainant against the accused.Likewise, it is not a stage for determining how weighty thedefences raised on behalf of the accused are. Even if the accused

is successful in showing some suspicion or doubt, in theallegations levelled by the prosecution/complainant, it would beimpermissible to discharge the accused before trial. This is sobecause it would result in giving finality to the accusations levelledby the prosecution/complainant, without allowing the prosecutionor the complainant to adduce evidence to substantiate the same.The converse is, however, not true, because even if trial isproceeded with, the accused is not subjected to any irreparableconsequences. The accused would still be in a position to succeedby establishing his defences by producing evidence in accordancewith law. There is an endless list of judgments rendered by thisCourt declaring the legal position that in a case where theprosecution/complainant has levelled allegations bringing out allingredients of the charge(s) levelled, and have placed materialbefore the Court, prima facie evidencing the truthfulness of theallegations levelled, trial must be held.

30. Based on the factors canvassed in the foregoing paragraphs,we would delineate the following steps to determine the veracityof a prayer for quashment raised by an accused by invoking thepower vested in the High Court under Section 482 CrPC:

30.1. Step one: whether the material relied upon by the accusedis sound, reasonable, and indubitable i.e. the material is of sterlingand impeccable quality?

30.2. Step two: whether the material relied upon by the accusedwould rule out the assertions contained in the charges levelledagainst the accused i.e. the material is sufficient to reject and A

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overrule the factual assertions contained in the complaint i.e. thematerial is such as would persuade a reasonable person to dismissand condemn the factual basis of the accusations as false?

30.3. Step three: whether the material relied upon by the accusedhas not been refuted by the prosecution/complainant; and/or theBmaterial is such that it cannot be justifiably refuted by theprosecution/complainant?

30.4. Step four: whether proceeding with the trial would resultin an abuse of process of the court, and would not serve the endsof justice?

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30.5. If the answer to all the steps is in the affirmative, the judicialconscience of the High Court should persuade it to quash suchcriminal proceedings in exercise of power vested in it underSection 482 CrPC. Such exercise of power, besides doing justiceto the accused, would save precious court time, which wouldDotherwise be wasted in holding such a trial (as well asproceedings arising therefrom) specially when it is clear that thesame would not conclude in the conviction of the accused.”

78. The court also declared that the High Court must be fullyEsatisfied about the material and that material produced by the accusedmust be such that the defence is based on sound, reasonable andindisputable facts.

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

80. In regard to the attempt, on the part of the appellant, topersuade us to follow the judgment of this Court in Rajiv Thapar(supra),we felt dissuaded from undertaking the said course on the followingreasoning. It is true that a perusal of the petition before the High Courtreveals that appellant has purported to take up the contention that theHwebsite is the service offered by the Google Inc, the parent company of the appellant and that the services are provided by the parentcompany directly to the users. It is also the case of the appellant thatservice provided on the website is free and the end user can post ablog without making any payment. The terms of service and contentpolicy on the website is also seen produced. Impugned order of theHigh Court, however, reveals that the court understood the argumentsapparently of the appellant as follows:

“2) It is contended by the senior counsel appearing for thepetitioner/A-2 that actions of intermediaries such as Google Inc.,which is a service provider providing platform for end users toupload content, does not amount to publication in law andconsequently the question of holding such intermediaries liablefor defamation does not arise. Senior counsel appearing for thepetitioner placed reliance on Section 79 of the InformationTechnology Act, 2000 (in short, the Act) in support of thiscontention.”

81. The defence raised by the appellant, which, according to him,consisted of documents in the form of the conditions stipulated by theparent company in its conditions, are disputed. To expatiate, accordingto the respondent, the said contention is factual. There is a case alsothat they are produced without complying with the mandate of Section65B of the Indian Evidence Act, 1872. In this regard, reliance is placedon Anvar P.V.v. P.K. Basheer and others23. There is also definite casefor the respondent that appellant cannot be allowed to disown its rolein the Google Groups being part of the common economic entity. It iscontended by the complainant that the appellant did not clarify by wayof answer to the query by the court as to what activities they indulgein India. The Memorandum of Association is referred to contend thatthe main objects include providing network related products or servicesand applications. It is the case of the complainant further that in factthe entire operations of Google Economic Entity, the users are provideddigital space purportedly free but are made to part with their personaldata as consideration. The said data is used for generating advertisementrevenues. The onus would be on the appellant if it seeks to dispel thisfact to lead evidence to show that the appellant does not have any roleto 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 A

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Ais contended by the complainant, is a matter for evidence. It cannot bedetermined on the basis of photocopies of documents filed with thepaper books before this Court.

82. We have noticed that the appellant appears to have producedthe Google Groups conditions even before the High Court. It is alsoBappeared to have taken the contention that it is Google Groups whichis an intermediary.

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

84. In this regard, the question, however, arises whether thecomplainant accepts this version of the appellant or disputes it. WeEwould think that the complainant does not accepts the actual role ofthe appellant. The nature of operations of the appellant, according tothe appellant, is not clear. What is the actual relationship between theParent Company and appellant, is, according to the complainant, a matterfor decision on evidence being taken. In other words, the contention ofFthe appellant that appellant is not an intermediary and, hence, cannotbe fastened, at any rate, with criminal liability, is subject matter ofdispute.

WHETHER “SHARAT BABU DIGUMARTI V. GOVERNMENT(NCT OF DELHI)” COMES TO THE RESCUE OF THEAPPELLANT?G85. There is need to also address an argument based on thedecision of this Court in Sharat Babu Digumartiv. Government (NCT24of Delhi).

H24 (2017) 2 SCC 18

86. Section 81 of the Act reads as follows:

“81. Act to have overriding effect.-The provisions of this Act shallhave effect notwithstanding anything inconsistent therewithcontained in any other law for the time being in force.”

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

88. The argument of the appellant, thus, is seen noted ashereunder:

88. The argument of the appellant, thus, is seen noted ashereunder:

“29. We have referred to the aforesaid aspect as it has beenargued by Dr Singhvi that the appellant is protected under thesaid provision, even if the entire allegations are accepted.According to him, once the factum of electronic record isadmitted, Section 79 of the IT Act must apply ipso facto and ipsojure. The learned Senior Counsel has urged Section 79, as thelanguage would suggest and keeping in view the paradigm ofinternet world where service providers of platforms do not controland indeed cannot control the acts/omissions of primary,secondary and tertiary users of such internet platforms, protectsthe intermediary till he has the actual knowledge. He wouldcontend that the Act has created a separate and distinct categorycalled “originator” in terms of Section 2(1)(z)(a) under the ITAct to which the protection under Section 79 of the IT Act hasbeen consciously not extended. Relying on the decision in ShreyaSinghal [Shreya Singhal v. Union of India, (2015) 5 SCC 1 :(2015) 2 SCC (Cri) 449] , he has urged that the horizon has beenexpanded and the effect of Section 79 of the IT Act provides A

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Aprotection to the individual since the provision has been read downemphasising on the conception of actual knowledge. Relying onthe said provision, it is further canvassed by him that Section 79of the IT Act gets automatically attracted to electronic forms ofpublication and transmission by intermediaries, since it explicitlyuses the non obstante clauses and has an overriding effect onBany other law in force. Thus, the emphasis is on the threeprovisions, namely, Sections 67, 79 and 81, and the threeprovisions, according to Dr Singhvi, constitute a holistic trinity.”

89. Thereafter, the court referred to Section 81 which we haveextracted, and finally, the court held as follows:C

“32. Section 81 of the IT Act also specifically provides that theprovisions of the Act shall have effect notwithstanding anythinginconsistent therewith contained in any other law for the timebeing in force. All provisions will have their play and significance,if the alleged offence pertains to offence of electronic record. ItDhas to be borne in mind that IT Act is a special enactment. Ithas special provisions. Section 292 IPC makes offence sale ofobscene books, etc. but once the offence has a nexus orconnection with the electronic record the protection and effectof Section 79 cannot be ignored and negated. We are inclined toEthink so as it is a special provision for a specific purpose andthe Act has to be given effect to so as to make the protectioneffective and true to the legislative intent. This is the mandatebehind Section 81 of the IT Act. The additional protection grantedby the IT Act would apply.”F90. We are not inclined to accept this argument based on thedicta laid down in Sharat Babu(supra). It is true that the offences werealleged to have been committed at a time when Section 79 had not beensubstituted, as we notice that cognizance was taken on 14.02.2006. Wemay notice the reasoning in paragraph 37, which reads as follows:

G“37. The aforesaid passage clearly shows that if legislativeintendment is discernible that a latter enactment shall prevail, thesame is to be interpreted in accord with the said intention. Wehave already referred to the scheme of the IT Act and howobscenity pertaining to electronic record falls under the schemeof the Act. We have also referred to Sections 79 and 81 of theHIT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the netof IPC and in this case, Section 292. It is apt to note here thatelectronic forms of transmission are covered by the IT Act,which is a special law. It is settled position in law that a speciallaw shall prevail over the general and prior laws. When the Actin various provisions deals with obscenity in electronic form, itcovers the offence under Section 292 IPC.”

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

92. Section 79, even prior to its substitution, did protect theintermediary from liability for offences under the Act. This was a casewhere the appellant was sought to be prosecuted under Section 292 ofthe IPC even though he had been discharged under Section 67 of theAct. The offence was one which properly fell within the scope ofSection 67 in so far as the offending matter, was contained in anelectronic record, as defined. Therefore, it could be reasoned that ithaving been found, he had not committed the offence under Section67 of the Act, having regard to Section 81, the prosecution under Section292 of the IPC, may not stand since special provisions have overridingeffect. That explains the statement of the law contained in paragraph37 of the judgment, viz., “when the Act in various provisions deals inobscenity in other forms, it covers the offence under Section 292 ofthe IPC.

93. The premise of the judgment of this Court in Sharat Babu(supra) was that what was involved was an electronic record withinthe meaning of the Act. The appellant in the said case stood dischargedunder Section 67 of the Act. The reasoning, which has been upheld bythe Court, was that the special provisions contained in the Act wouldoverride and cover a criminal act and he would get out of the net ofthe IPC which in the said case was Section 292. To repeat, the appellantstood discharged under Section 67 of the Act, and therefore, could notbe prosecuted under Section 292 of the IPC.

94. In this context, we must examine whether there is anyprovision in the Act which deals with the offence of defamationcommitted in the electronic form. In fact, in this regard, it is relevantto notice the judgment of this Court in Shreya Singhal(supra).

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A95. Incidentally, the learned Senior Counsel who appeared forthe appellant also appeared in the said case for some of the partiesand 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 variousoffences. In regard to sending defamatory messages by e-mail, theBprovision under the Act was shown as Section 66A and it was contendedthat the provision in the IPC corresponding to Section 66A was Section500 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 CodeCas follows:

“499. Defamation.—Whoever, by words either spoken orintended to be read, or by signs or by visible representations,makes or publishes any imputation concerning any personDintending to harm, or knowing or having reason to believe thatsuch 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 anythingto a deceased person, if the imputation would harm the reputationEof that person if living, and is intended to be hurtful to the feelingsof his family or other near relatives.

Explanation 2.—It may amount to defamation to make animputation concerning a company or an association or collectionof persons as such.

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Explanation 3.—An imputation in the form of an alternative orexpressed ironically, may amount to defamation.

Explanation 4.—No imputation is said to harm a person’sreputation, unless that imputation directly or indirectly, in theestimation of others, lowers the moral or intellectual characterGof that person, or lowers the character of that person in respectof 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 aloathsome state, or in a state generally considered as disgraceful.”

46. It will be noticed that for something to be defamatory, injuryHto reputation is a basic ingredient. Section 66-A does not concern itself with injury to reputation. Something may be grossly offensiveand may annoy or be inconvenient to somebody without at allaffecting his reputation. It is clear, therefore, that the section isnot aimed at defamatory statements at all.”

96. At any rate, Section 66A has been declared unconstitutionalby this Court. Apart from Section 66A, there is obviously no otherprovision in the Act which deals with defamation in the electronic form.In that way, the subject of defamation would be governed by Section500 of the IPC. Therefore, the reliance placed on ShreyaSinghal(supra) is without any basis.

ASSUMING APPELLANT IS AN INTERMEDIARY: A BRIEFOVERVIEW OF THE LAW OF DEFAMATION

97. The next question is proceeding on the basis that it is theappellant which is the intermediary within the meaning of the Actwhether the appellant could be foisted with liability in a case whereappellant is being proceeded against in a criminal case for havingcommitted the offence under Section 500 read with Section 120B ofthe 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 GoogleGroups as publisher is a question of fact. It is pointed out that Googlehas control on the content being uploaded by the authors. It has fullfreedom to remove any content without reference to anyone much lesscourt orders. Google itself recognizes that defamation is not an acceptedconduct and takes an undertaking from its users. Google cannot claimto be mere passive technology service provider which is promoting freespeech. It provides various tools to create/edit/modify the content apartfrom uploading the content. It is contended that for the purpose ofdefamation, Google may have some defence till such time till they arenot aware of the defamatory content. However, once they are madeaware of the defamatory content, then, by allowing the same to continue,refusing to exercise control as platform provider, it becomes fully liablefor the consequences of publishing defamatory material. Being atechnology giant, is not a license to break laws. It does not provideimmunity from the liability under the IPC.

98. There is an attempt by the appellant before us to contendthat even taking the averments in the posts which have been uploaded A

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Aby the first accused, it would not amount to defamation. The essenceof the offence of defamation, as defined in Section 499, would consistof words either spoken or intended to be read or by signs or by visiblerepresentations making or publishing any imputation concerning anyperson with the intention to harm or knowing or having reason to believethat such imputation will harm the reputation of that person subject toBthe Exceptions and Explanations which follow the main provision.Explanation II declares that it may amount to defamation to make animputation concerning a company or an association or collection ofpersons as such. Explanation IV reads as follows:

“Explanation 4.—No imputation is said to harm a person’sCreputation, unless that imputation directly or indirectly, in theestimation of others, lowers the moral or intellectual characterof that person, or lowers the character of that person in respectof 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 aDloathsome state, or in a state generally considered as disgraceful.”99. It is undoubtedly true that the first Exception exempts fromcriminal liability, statements which are true and which are required forpublic good. It reads as follows:

“First Exception.—Imputation of truth which public good requiresEto be made or published.—It is not defamation to impute anythingwhich is true concerning any person, if it be for the public goodthat the imputation should be made or published. Whether or notit is for the public good is a question of fact.”

100. The 9[th] Exception may be relevant. It reads as follows:F“Ninth Exception.—Imputation made in good faith by person forprotection of his or other’s interests.—It is not defamation tomake an imputation on the character of another provided thatthe imputation be made in good faith for the protection of theinterests of the person making it, or of any other person, or forGthe public good. Illustrations (a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays you ready money, forI have no opinion of his honesty”. A is within theexception, if he has made this imputation on Z in goodHfaith for the protection of his own interests.

(b) A, a Magistrate, in making a report of his own superiorofficer, casts an imputation on the character of Z. Here,if the imputation is made in good faith, and for the publicgood, A is within the exception. Tenth Exception.—Caution intended for good of person to whom conveyedor for public good.—It is not defamation to convey acaution, in good faith, to one person against another,provided that such caution be intended for the good ofthe person to whom it is conveyed, or of some personin whom that person is interested, or for the publicgood. COMMENTS Imputation without publication Insection 499 the words “makes or publishes anyimputation” should be interpreted as wordssupplementing to each other. A maker of imputationwithout publication is not liable to be punished under thatsection; Bilal Ahmed Kaloo v. State of Andhra Pradesh,(1997) 7 Supreme Today 127.”

101. We would not think that it would be appropriate, proper orlegal for the court to accept the submission of the appellant that thepost in question do not constitute defamation. This is for the reasonthat 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 towhether it constitute defamation and as to whether it falls in any ofthe Explanations/Exceptions, would be all matters to be decided by thecourt.

102. The question which remains is everything being assumedin favour of the complainant, viz., that the first accused has posteddefamatory material by uploading it on the platform and the appellantis an intermediary providing the said platform, the argument of theappellant is that even then, the appellant is not liable. We have noticedthe stand of the Government of India also. An intermediary provides aplatform. Millions of posts are uploaded every day. We have noticedthe definition of words “originator” and “addressee”. The case of theappellant is that the originator in this case, the first accused, is the authorof the alleged defamatory material. Unlike an article which is writtenby person ‘A’ and which is got published in a newspaper or publicationwhich is brought out by a person ‘B’, the case of the appellant is thatthe first accused is both the originator, and therefore, the author andhe is also the publisher. Assuming everything against the appellant as A

B

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D

E

F

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Aaforesaid, the offence if at all has been committed, may have beencommitted by the first accused. The appellant seeks to wash its handsoff the contents of the article as also the publication. The responsibilityfor authoring the material and publishing(uploading) lies at the doorstepof the fist accused. The appellant has no role at all in this matter. Insuch circumstances, it is the case of the appellant that having regardBto the role played by the appellant, again assuming that it is theintermediary, involved in this case, it cannot be made liable. It is thefurther case of the appellant that at the most, liability may arise, if aparty aggrieved by material, which can be understood as electronicrecord under the Act, approaches the appellant armed with a courtCorder 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. Thisis apart from pointing out that it is incumbent upon the complaining partyto assist the intermediary by providing it with the URL so that the mattercould be located and action taken. In fact, in this case, it is pointed outthat the appellant, as a good gesture, upon receipt of complaint, writtenDto parent company, which, in fact, is the intermediary and the parentcompany wrote back seeking URL. The actions of the appellant havebeen bonafide. It has no role to play in the commission of the allegedoffence. It is in this context that appellant would contend that in lawan intermediary cannot and should not be designated as the CompetentEAuthority to decide upon the question as to whether any material fallsfoul of the law of defamation leading to the unilateral interference withthe free exchange of ideas though the internet. Internet, it is pointedout, is universal, and in the words of the Government of India, whichsupports the appellant in this Court, a democratic medium for the freeexchange of ideas. Any conferment of unilateral power upon theFintermediary would introduce what is called the chilling effect.

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

103. It is important that we notice the indispensable ingredientsGof the offence under Section 499 of the IPC. Section 499 reads asfollows:

“499. Defamation.—Whoever, by words either spoken orintended to be read, or by signs or by visible representations,makes or publishes any imputation concerning any personHintending 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 themaking or publishing of any imputation with a requisite intention orknowledge or reason to believe, as provided therein, that the imputationwill harm the reputation of any person, the essential ingredients of theoffence of defamation. What is the meaning to be attached to the words“making of an imputation” and “publishing of an imputation”? Thisquestion has been set out with clarity in a recent judgment which isreported in Mohd. Abdulla Khan v. Prakash K.25. It was held as follows:

“10. An analysis of the above reveals that to constitute an offenceof defamation it requires a person to make some imputationconcerning 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 personagainst 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 publishingthe 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 theimputation.

The essence of publication in the context of Section 499 is thecommunication of defamatory imputation to persons other than A

B

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D

E

F

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Athe persons against whom the imputation is made. [KhimaNand v. Emperor, 1936 SCC OnLine All 307 : 1937 Cri LJ806; Amar Singh v. K.S. Badalia, 1964 SCC OnLine Pat 186 :(1965) 2 Cri LJ 693]”

WHETHER SECTION 499 OF THE IPC EXHAUSTIVE OFBCRIMINAL LIBEL?

105. We may incidentally also notice an earlier judgment of thisCourt in this context reported in M.C. Verghesev. T.J. Poonan andanother26. The daughter of the appellant therein, who was married tothe respondent (T.J. Poonan), received certain letters from her husbandCwhich the appellant-father-in-law complained as containing defamatorystatements against him. The Magistrate took the view that being acommunication between husband and wife, it did not amount todefamation as there was no publication since in the eye of law, as thehusband and wife are one. He also took the view that thecommunication between the spouses was privileged under Section 122Dof the Indian Evidence Act, 1872. This Court reversed the view takenby the High Court which had upheld the view of the Magistrate thoughin the interregnum the Magistrate’s view did not find favour with thelearned Sessions Judge. This Court took the view that the principle, thehusband and wife are one in the eye of law, has not been adopted inEits full force under our system and certainly not in our criminaljurisprudence (see paragraph 7). It is, thereafter, that the Court madefollowing observations:

“10. It must be remembered that the Penal Code, 1860exhaustively codifies the law relating to offences with which itdeals and the rules of the common law cannot be resorted toFfor inventing exemptions which are not expressly enacted.

11. In Tiruvengadda Mudali v. Tripurasundari Ammal [ILR 49Mad 728] a Full Bench of the Madras High Court observed thatthe exceptions to Section 499 IPC, must be regarded asGexhaustive as to the cases which they purport to cover andrecourse can be had to the English common law to add newgrounds of exception to those contained in the statute. A personmaking libellous statements in his complaint filed in Court is notabsolutely protected in a criminal proceeding for defamation, for under the Eighth Exception and the illustration to Section 499 thestatements are privileged only when they are made in good faith.There is therefore authority for the proposition that in determiningthe criminality of an act under the Penal Code, 1860 the Courtswill not extend the scope of special exceptions by resorting tothe rule peculiar to English common law that the husband andwife 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 thatthe criminal offence of defamation under Section 499 of the IPC iscommitted when a person makes a defamatory imputation which, asexplained in Mohd. Abdulla Khan(supra), would consist of theimputation being conveyed to the person about whom the imputation ismade. A publication, on the other hand, is made when the imputation iscommunicated to persons other than the persons about whom thedefamatory imputation is conveyed. A person, who makes thedefamatory imputation, could also publish the imputation and thus couldbe the maker and the publisher of a defamatory imputation. On the otherhand, a person may be liable though he may not have made thestatement but he publishes it.

108. In this case, the case of the appellant appears to be that itis indisputable that it is the first defendant who has not only authoredthe statements containing imputations which are allegedly defamatorybut it is he who has also published it. In this regard, the parties beforeus have drawn our attention to case law emanating from courts otherthan in India.

THE DEFAMATION ACTS IN ENGLAND: A LOOK AT SOMEDECISIONS UNDER THE SAME

109. Before we proceed to consider the case law, a bird’soverview of the law of defamation, as contained in United Kingdom,may be appreciated. The Defamation Act of 1952, as contained inSections 4,7,8,9(2) and 9(3) and Sections 16(2) and 16(3) came to berepealed by the Defamation Act of 1996. The Defamation Act of 2013further amended the law by declaring that a statement is not defamatoryunless its publication has caused or is likely to cause serious harm tothe reputation of the claimant which, in the case of body that tradesfor profit, it was made clear that the serious harm would not arise unless AB

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Athere is caused serious financial loss or likelihood of such loss. Truthwas declared as a defence. Certain defences were introduced.Considerations of public interest was introduced in regard to operatorsof website. Section 5 was enacted, which reads as follows:

“5. Operators of websites

B

(1) This section applies where an action for defamation isbrought against the operator of a website in respect ofa statement posted on the website.

(2) It is a defence for the operator to show that it was notthe operator who posted the statement on the website.

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(3) The defence is defeated if the claimant shows that—

(a) it was not possible for the claimant to identify theperson who posted the statement, (b) the claimant gave the operator a notice of complaintin relation to the statement, and D

(c) the operator failed to respond to the notice ofcomplaint in accordance with any provisioncontained in regulations.

(4) For the purposes of subsection (3)(a), it is possible fora claimant to “identify” a person only if the claimant hassufficient information to bring proceedings against theperson.

E

(5) Regulations may—

F

(a) make provision as to the action required to be takenby an operator of a website in response to a noticeof complaint (which may in particular include actionrelating to the identity or contact details of the personwho posted the statement and action relating to itsremoval); G

(b) make provision specifying a time limit for the takingof any such action;

(c) make provision conferring on the court a discretionto treat action taken after the expiry of a time limitas having been taken before the expiry; H

(d) make any other provision for the purposes of thissection.

(6) Subject to any provision made by virtue ofsubsection (7), a notice of complaint is a notice which—

(a) specifies the complainant’s name,

(b) sets out the statement concerned and explains whyit is defamatory of the complainant,

(c) specifies where on the website the statement wasposted, and (d) contains such other information as may be specifiedin regulations.

(7) Regulations may make provision about thecircumstances in which a notice which is not a noticeof complaint is to be treated as a notice of complaintfor the purposes of this section or any provision madeunder it.

(8) Regulations under this section—

(a) may make different provision for differentcircumstances; (b) are to be made by statutory instrument.

(9) A statutory instrument containing regulations under thissection may not be made unless a draft of the instrumenthas been laid before, and approved by a resolution of,each House of Parliament.

(10) In this section “regulations” means regulations made bythe Secretary of State.

(11) The defence under this section is defeated if theclaimant shows that the operator of the website hasacted with malice in relation to the posting of thestatement concerned.

(12) The defence under this section is not defeated by reasononly of the fact that the operator of the websitemoderates the statements posted on it by others.”

A

B

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D

E

F

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A

110. There are other provisions which need not detain us. Wemay, 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 ofBdefamation generally;”

111. The Act was to apply only to England and Wales. Certainprovisions were to apply to Scotland also.

112. It may be noticed, however, that the Defamation Act, 1996,as indeed the Defamation Act, 1952, provided as follows:

C

113. In Section 20(2) of the Defamation Act, 1996, it is statedthat 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 Actaffected the law relating to criminal libel.D114. Criminal libel, however, came to be repealed by the Coronersand Justice Act, 2009.

115. The complainant would refer to judgment in Byrnev.Deane27 as also Payam Tamizv. Google Inc.28. The appellant, on theother hand, relied upon the judgment of the Queens Bench in Buntv.ETilley29. There is also reference by the respondent to the judgment inGodfreyv. Demon Internet Limited30. Let us now take these cases inthe chronological order and the context in which the matter arose andwas decided.

116. In Byrne(supra), the facts may be noticed. The complainantFwas a member of a Golf Club. The defendants were the proprietorsand the female defendant was also the Secretary. The rules of the Club,inter alia, prohibited posting of any notice or placard in the Clubpremises without the consent of the Secretary. There were certainautomatic gambling machines kept by the defendants for the use of theGmembers of the Club. On a complaint, the machines were removedfrom the Club premises. Alleging that a defamatory verse was put up 27 (1937) 1 KB 81828 (2013) EWCA CB 6829 (2006) EWHC 407H30 (2001) QB 201

on the wall of the Club, the plaintiff brought an action in libel allegingpublication by the defendants of matter defamatory to him. In short, itwas his case that the words were meant to convey that it was theplaintiff who reported the matter to the Police which undermined hisloyalty to the members of the Club. The learned Judge, who heard thecivil action for damages, gave judgement to the plaintiff. He came tothe conclusion that the matter complained of was defamatory. He furtherfound that since the defendants allowed the notice to remain on thewalls 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 therewas publication by the defendants, the Court, by a majority, took theview that there was publication. Greer L.J. held as follows:

“… It was a proprietary club. The difference between aproprietary club and an ordinary club is that in a proprietary clubthe proprietor or proprietors remain in possession of the club. Thetwo defendants are the lessees of the club and they are theoccupiers of the club premises, and the walls are their walls, andin my judgment they allowed a defamatory statement to be putup on their walls and to remain on their walls in a position inwhich it could be read by anybody who came into the club.Undoubtedly it must have been so read not only by people whowere members of the club but by people who were not membersof the club, and who only came in possibly for a drink with amember or to play a game of some sort or another.

Quite a number of illustrations have been put forward asillustrations which give rise to similar questions to the questionthat arises in this case. In my judgment the nearest case putforward is this: assume that a defamatory poster was hung uponthe garden rail of Mr. Smith’s house which adjoins the street sothat the defamatory statement can be read by every one whopasses the house. Could it not be said that by allowing that posterto remain hanging upon the garden rail of his house the occupierof the house was taking part in the publication of that poster topeople passing his house, when the simplest operation in the world,namely, cutting the rope by which the poster was hung upon therail and taking the poster away, would have made the poster fromthat time innocuous? In my judgment the two proprietors of thisestablishment by allowing the defamatory statement, if it be AB

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A

defamatory, to rest upon their wall and not to remove it, withthe knowledge that they must have had that by not removing itit would be read by people to whom it would convey suchmeaning as it had, were taking part in the publication of it. …”

117. Slesser L.J. wrote a separate opinion wherein he took theBview that complainant had failed to show publication against the maledefendant. 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 publicationrather further than has ever been done in the past in any caseCwhich I have been able to discover — that there was someevidence 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 theclub premises without the consent of the secretary,” and herDevidence is to this effect, that she knew that this alleged libelhad been placed on the wall of the club. Her view was that shecould see no harm in it. She said: “I read it. It seemed to mesomebody was rather annoyed with somebody.” I think havingread it, and having dominion over the walls of the club as far asEthe posting of notices was concerned, it could properly be saidthat there was some evidence that she did promote and associateherself with the continuance of the publication in thecircumstances after the date when she knew that the publicationhad been made.”

119. Greene L.J., took the view that there was evidence ofFpublication by both the defendants. It was held as follows:

“Now, on the substantial question of publication, publication, ofcourse, is a question of fact, and it must depend on thecircumstances in each case whether or not publication has takenplace. It is said that as a general proposition where the act ofGthe person alleged to have published a libel has not been anypositive act, but has merely been the refraining from doing someact, he cannot be guilty of publication. I am quite unable toaccept any such general proposition. It may very well be that insome circumstances a person, by refraining from removing orHobliterating 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 ofthe case is the proper inference that by not removing thedefamatory matter the defendant really made himself responsiblefor its continued presence in the place where it had been put?

I may give as an example of a case which would fall on oneside of the line: suppose somebody with a mallet and a chiselcarved on the stonework of somebody’s house somethingdefamatory, and carved it very deeply so that the removal of itcould only be effected by taking down the stonework andreplacing it with new stonework. In a case of that kind it appearsto me that it would be very difficult, if not indeed impossible, todraw the inference that the volition of the owner of the househad anything to do with the continued presence of that inscriptionon his stonework. The circumstance that to remove it wouldrequire very great trouble and expense would be sufficient toanswer any such aspersion.

On the other hand you have a case such as the present wherethe removal of this particular notice was a perfectly simple andeasy thing to do involving no trouble whatsoever. The defendants,having the power of removing it and the right to remove it, andbeing able to do it without any difficulty at all, and knowing thatmembers of the club when they came into the room would seeit, I think must be taken to have elected deliberately to leave itthere. The proper inference, therefore, in those circumstances itseems to me is that they were consenting parties to its continuedpresence on the spot where it had been put up. That being so itseems to me that they must be taken to have consented to itspublication to each member who saw it. …”

120. In Godfrey(supra), the case was a civil action. Thecomplainant was a Lecturer in Physics, Mathematics and ComputerScience resident in England. The defendant was an internet serviceprovider. On the 13[th] of January, 1997, some unknown person made apost in the U.S.A. in news group soc.culture.thai and stores which wascarried on by the defendant. For about a fortnight, the posting wasavailable to be read by its customers. According to the complainant, itwas defamatory, inter alia, to him. It purported to emanate from the A

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Acomplainant though his name was misspelt. Complainant claimed it tobe a forgery. He sent a letter to the Managing Director of the defendant-company about the posting being a forgery and disowning responsibilityof the same, he requested removal of the same from the server. It wasnot disputed by the defendant that it could have obliterated the postafter receiving the request. The court examined the matter thereafter,Bon the basis of the governing law, viz., Defamation Act, 1996. Thefollowing discussion is relevant:

“The law

The governing statute is the Defamation Act 1996. Section 1,which is headed “Responsibility for publication”, provides:

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(1) In defamation proceedings a person has a defence if he showsthat—(a) he was not the author, editor or publisher of thestatement complained of, (b) he took reasonable care in relationto its publication, and (c) he did not know, and had no reason tobelieve, that what he did caused or contributed to the publicationof a defamatory statement.”

D

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

E

“(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 businessis issuing material to the public, or a section of the public, whoissues material containing the statement in the course of thatbusiness.

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“(3) A person shall not be considered the author, editor orpublisher of a statement if he is only involved—(a) in printing,producing, distributing or selling printed material containing thestatement … (c) in processing, making copies of, distributing orselling any electronic medium in or on which the statement isGrecorded, or in operating or providing any equipment, system orservice by means of which the statement is retrieved, copied,distributed or made available in electronic form … (e) as theoperator of or provider of access to a communications systemby means of which the statement is transmitted, or madeHavailable, by a person over whom he has no effective control.

In a case not within paragraphs (a) to (e) the court may haveregard to those provisions by way of analogy in deciding whethera person is to be considered the author, editor or publisher of astatement …

“(5) In determining for the purposes of this section whether aperson took reasonable care, or had reason to believe that whathe did caused or contributed to the publication of a defamatorystatement, regard shall be had to—(a) the extent of hisresponsibility for the content of the statement or the decision topublish it, (b) the nature or circumstances of the publication, and(c) the previous conduct or character of the author, editor orpublisher.”

In my judgment the defendants were clearly not the publisher ofthe posting defamatory of the plaintiff within the meaning ofsection 1(2) and (3) and incontrovertibly can avail themselvesof section 1(1)(a). However the difficulty facing the defendantsis section 1(1)(b) and (c).After 17 January 1997, after receiptof the plaintiff’s fax, the defendants knew of the defamatoryposting but chose not to remove it from their Usenet newsservers. In my judgment this places the defendants in aninsuperable difficulty so that they cannot avail themselves of thedefence 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 withintheir computers. Such postings could be accessed on thatnewsgroup. The defendants could obliterate and indeed did so”about a fortnight after receipt.

(Emphasis supplied)

122. The court finally concluded that the plaintiffs summons tostrike out parts of the defence as disclosing no sustainable defence whichwas to the effect that in common law, they were not publishers of theinternet posting. The plaintiff’s summons was allowed to strike out thedefence.

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A123. Now, we may turn to Bunt(supra) decided on 10.03.2006by the Queen’s Bench Division of the High Court. Defendants 4 to 6in the civil proceeding were internet service providers. The serviceproviders 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 basedon the allegation that the individual defendants published the offendingBwords through the services provided by the internet service providers.In paragraph 7, the Court considered it necessary to consider thedefence relied upon by the parties which, in fact, was admissible forthe purpose of CPR Part 24. The court referred to the decision inGodfrey(supra). The court also held, inter alia, as follows:C

“15. Publication is a question of fact, and it must depend on thecircumstances of each case whether or not publication has takenplace: see e g Byrne v Deane [1937] 1 KB 818, 837–838, perGreene LJ. The analogies that were held to be inappropriatein Godfrey v Demon Internet Ltd might yet be upheld whereDthe facts do not disclose onward transmission with knowledgeof the defamatory content. As Dr Collins observes in The Lawof Defamation and the Internet, para 15.43:

“Mere conduit intermediaries who carry particular Internetcommunications from one computer to another … areanalogous to postal services and telephone carriers in thesense that they facilitate communications, without playing anypart in the creation or preparation of their content, and almostalways without actual knowledge of the content.”

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Such an approach would tend to suggest that at common lawFsuch intermediaries should not be regarded as responsible forpublication. Indeed, that is consistent with the approachin Lunney where the New York Court of Appeals drew ananalogy between an ISP and a telephone company “which oneneither wants nor expects to superintend the content of hissubscriber’s conversations”.G

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22. I have little doubt, however, that to impose legal responsibilityupon anyone under the common law for the publication of wordsit is essential to demonstrate a degree of awareness or at leastHan assumption of general responsibility, such as has long been recognised in the context of editorial responsibility.As Lord Morriscommented in McLeod v St Aubyn [1899] AC 549, 562: “Aprinter and publisher intends to publish, and so intending cannotplead as a justification that he did not know the contents. Theappellant in this case never intended to publish.” In that case therelevant publication consisted in handing over an unread copy ofa newspaper for return the following day. It was held that therewas no sufficient degree of awareness or intention to imposelegal responsibility for that “publication”.

23. Of course, to be liable for a defamatory publication it is notalways necessary to be aware of the defamatory content, stillless of its legal significance. Editors and publishers are often fixedwith responsibility notwithstanding such lack of knowledge. Onthe other hand, for a person to be held responsible there mustbe knowing involvement in the process of publication of therelevant words . It is not enough that a person merely plays apassive instrumental role in the process. (See also in thiscontext Emmens v Pottle (1885) 16 QBD 354, 357, per LordEsher MR.)

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30. In so far as the claimant seeks support in Godfrey DemonInternet Ltd [2001] QB 201, there are plainly significantdistinctions. Morland J deprived the ISP in that case fromprotection under section 1 of the 1996 Act because it hadcontinued publication of the same defamatory statements afterMr Godfrey’s letter had been received, asking for them to beremoved from the Usenet news server. Here, by contrast, theclaimant is relying upon separate postings. In these there is noreference to batteries, but rather to suggestions of fraud and“kiddie porn”. There are no pleaded facts to suggest any knowingparticipation by AOL in the publication of these words.

31. Ms Phillips accordingly submits that an ISP should not becomeliable as a publisher (especially for postings on a site which itdoes not host) simply because it has been previously told ofwholly unrelated allegedly defamatory statements, not necessarilyeven by the same author. That is a powerful argument which isrelevant, as I have said, both to the fundamental issue of AB

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publication at common law and to statutory defences which Ishall have to consider later.

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36. In all the circumstances I am quite prepared to hold that thereis no realistic prospect of the claimant being able to establish thatBany of the corporate defendants, in any meaningful sense,knowingly participated in the relevant publications. His ownpleaded case is defective in this respect in any event. Moregenerally, I am also prepared to hold as a matter of law that anISP which performs no more than a passive role in facilitatingCpostings on the Internet cannot be deemed to be a publisher atcommon law. I would not accept the claimant’s proposition thatthis issue “can only be settled by a trial”, since it is a question oflaw which can be determined without resolving contested issuesof fact.”

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124. Thereafter, the Court also referred to the ElectronicCommerce Directive (Regulations), 2002. Still further, the Court referredin detail to the witness statement of the Director (Technical andOperations) in AOL:

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

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

“(i) An ISP providing a leased line connection to a customer hasan extremely good argument under both the Defamation Act1996 and also the Electronic Commerce Directive 2002 that it isno more than a ‘conduit’, that it has no knowledge or controlHover what passes through that ‘conduit’, and that the entire responsibility for what does pass through that ‘conduit’ rests withthe customer who has purchased it, as it is the customer andnot the ISP who acts as a ‘gatekeeper’ for that ‘conduit’. AnISP providing a standard domestic consumer or SOHO Internetaccess package to a customer has no possible hope ofsuccessfully arguing that it is a mere ‘conduit’ and thereforeimmune from that law, as all content originates from within theirown network, instead of merely passing through it in ‘Via’ fashionfrom one network to another.

“(j) In these circumstances not only is the ISP most definitelyacting as sole ‘gatekeeper’ between the source of thedefamatory material and the Internet, they also provide abundle of other services … each of which clearly falls foulof the other provisions of the Electronic Commerce Directive2002 which, for example, only allows the minimum level ofcacheing technically necessary for the underlying technologyof message transmission to function.”

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

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77. In conclusion, I am quite satisfied that the claims against theseapplicants should be struck out in accordance with CPR Pt 3,and indeed that there would be no realistic prospect of successon any of the causes of action. Thus the criteria under CPR Pt24 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 itappears to the court—

(a) that the statement of case discloses no reasonablegrounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’sprocess or is otherwise likely to obstruct the just disposalof the proceedings; or AB

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A(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 claimantsought damages in respect of publication on a Facebook profile and ablog post on the Google blogger service. The profile and the blog postBwere purportedly created by that claimant but the claimant complainedthat they were fake being created by an imposter. She claimed thatboth were defamatory and violated her right to respect for her privatelife under Article 8 of the European Convention on Human Rights.Proceedings were commenced against Facebook U.K. in respect ofthe profile they described as the Facebook action and against Google C

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 thesuit was against the company which was not responsible for thepublication which meant that she had prosecuted the case against thewrong defendant. In appeal, she cited certain issues to be referred toDthe 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 thatthey were in control of the notice board and had the power toEact so as to remove a posting by a third party which wasunauthorised and wrongful; by failing to exercise that power inthe knowledge of the posting they became liable for its continuedpublication. This rationale is plainly capable of applying to someof those involved in the provision of internet services and socialmedia platforms.”F

127. Thereafter, the Court went on to notice that the DefamationAct, 1996, mitigated the rigor of the common law principles by providinga defence for those who by application of those principles wereGpublishers of common law. Court further went on to hold that internetservice providers and others are not responsible for publicationaccording to the common law principles discussed, that is to say, whowere not publishers at common law, had no need to take resort underthe Defamation Act. The court went on to refer to Defamation Act,2013 which came into force on 01.01.2014. Further, the court held asHfollows:

“39. The pleading acknowledges on its face that Facebook Inc“owns” the Facebook Service and the associated website. Itappears to adopt the statement in the terms of service thatFacebook Ireland Ltd is, according to the terms of service,responsible for processing data outside the US and Canada. Sofar as FBUK is concerned, there is an allegation that it wasnotified of the offending postings. However, the pleading whollyfails to advance against FBUK any clear or coherent case thatit has or had any form of control over any aspect of the contentof the Facebook Service, let alone the Profile. The allegation thatFBUK was notified of the claimant’s complaint goes beyondwhat is alleged earlier in the pleading, where notification is saidto have been given to “the Facebook Service” and “Facebook”.It also appears to be factually untenable. But even if it were trueit could not, in the absence of an allegation that FBUK had thepower or ability to control content, form a proper basis for theattribution of responsibility for publication on the basis of Byrnev Deane principles.”

128. The court further observed that on the evidence, the claimanthad known Byrne(supra) without any prospect of success. In thisregard, the court relied on the evidence led which was to the effectthat 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 wasoperated by Facebook Inc., a corporation existing under the laws ofthe United States. Facebook Ireland Limited, a company organized andexisting under the laws of the Republic of Ireland has explained in itsterms of service that users outside of the United States of Americaand Canada contracted with the Facebook Ireland Limited ….”

129. The material was to the effect that Facebook U.K. Limitedwas a separate and distinct entity. Facebook U.K. Limited’s solecorporate purpose is public relation, consultancy, and communicationsin the United Kingdom. There was also reference to decisions ofEnglish Courts previously finding that Facebook U.K. Limited do notcontrol or operate the Facebook services.

130. The court took the view that Facebook U.K. Limitedpersuaded it that if there were a trial, it would inevitably demonstratethat it was not responsible. An attempt was made by the claimant to AB

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Adraw support from Google Spain SL(supra) decision. The argumentappears to have been that on the basis of the said decision, FacebookInc. and its subsidiaries were to be treated as a single economic unitand Facebook U.K. Limited should also be responsible for thepublication of the profile. The court rejected the contention. One of theBreasons given was that Google Spain SL(supra) was a decision whichwas 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 publicationin defamation. It was a matter to be determined by the common lawand the Defamation Acts. It was further found that claimant hadCmisunderstood 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 betreated as a single unit. Google Spain SL(supra) revolved around theinterpretation and application of Article 4(1) of the Directive. The courtDwent on to hold that the controller within the meaning of the directiveswas Google Inc.. In Google Spain SL(supra), court held that GoogleSpain was not a data controller.

131. On the one hand, the appellant sought to draw support fromRichardson(supra) whereas, on the other hand, the complainant laidEstore by Google Spain SL(supra). We have noticed the context in whichthe questions arose. As far as English decision is concerned, it was acivil action. The material before the learned Judge who allowed theapplication by Facebook U.K. Limited and Google U.K. was apparentlyin terms of the procedural laws, perhaps akin to Order VII Rule 11 ofFthe Code of Civil Procedure, 1908. More importantly, there was materialbefore the court even in dismissing the claims on the application of thedefendants.

132. We are, in this case, concerned with the ambit of jurisdictionunder Section 482 of the Cr.PC. We also notice that the decisionGrendered in Google Spain SL(supra) appears to have turned on thescope of the directive as noticed in Richardson(supra).

EFFECT OF SUBSTITUTION OF SECTION 79 OF THE ACT

133. Section 79 of the Act came to be substituted with effectHfrom 27.10.2009. In fact, the effect of substitution of a provision has GOOGLE INDIA PRIVATE LIMITED v.M/S. VISAKHA INDUSTRIES [K. M. JOSEPH, J.]

been dealt with by this Court in the decision in State of Rajasthanv.Mangilal Pindwal31 :

“10. Similarly in Crawford’s Interpretation of Laws it has beensaid:

“Effect of Repeal, Generally.— In the first place, an outrightrepeal will destroy the effectiveness of the repealed act in futuroand operate to destroy inchoate rights dependent on it, as a generalrule. In many cases, however, where statutes are repealed, theycontinue to be the law of the period during which they were inforce with reference to numerous matters.” (pp. 640-641)

11. The observations of Lord Tenterden and Tindal, C.J. referredin the above-mentioned passages in Craies on Statute Law alsoindicate that the principle that on repeal a statute is obliteratedis subject to the exception that it exists in respect of transactionspast and closed. To the same effect is the law laid down by thisCourt. (See: Qudrat Ullah v. Municipal Board [(1974) 1 SCC202:(1974) 2 SCR 530], SCR at p. 539)

12. This means that as a result of repeal of a statute the statuteas repealed ceases to exist with effect from the date of suchrepeal but the repeal does not affect the previous operation ofthe law which has been repealed during the period it wasoperative prior to the date of such repeal. …”

134. In this case, the complaint itself is dated 21.01.2009. Thesworn statement of Deputy Manager (Legal) of the complainant isrecorded on 27.02.2009. The sworn statement reads as follows:

“I am the complainant herein. I am working as Deputy Manager-legal in the complainant company. Complainant companymanufactures Asbestos Cement sheets and it is having variousmanufacture units throw out India. Accused No.1 is acoordinator of Ban Asbestos India a Group hosted by AccusedNo.2 and publishes articles in the group regarding various issueson 21[st] November, 2008 an article was published in A2 group asPoisoning the system: Hindustan times. Complainant wassurprised to note that article is aimed at complainant companyand also against renowned politicians of the country i.e. Mr. G.

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AVenkat Swamy and Smt. Sonia Gandhi where as these peoplehave nothing to do with the complainant company and again on31[st] July, 2008 an article was captioned A2 Group as VisakaAsbestos Industries making gains both articles containsdefamatory statements against the complainant which is availableBin the cyber space in the form of an article for world wideaudience. The complainant submits acts and deeds of the accusednot only harm the complainant company but also integrity of theworking people. Complainant humbly submits that there are othergroups like Everest Group, Ramco Group and Birla Group whichare also engaged in the same group. But the accused No.1Cunnecessarily dragged the complainant and the politicians of thecountry with malicious intention. The complainant further submitsthat A1 trying to bring down the complainant image by runninghate campaign against the complainant through the above saidarticles. After seeing this article the complainant has sent noticeDdated 10.12.2008 through Registered Post which A1 returnedunserved and the Fax was received by both the accused. Theabove article caused damage to the reputation of the complainant.A1 with malafide intention to cause damage to the reputation tocomplainant has published such articles. I further submit that theEacts and deeds of the accused being committed in violation ofthe fundamental rights and the action on the part of the accusedin making such defamatory statements are premeditated andintended to lower the image cause defamation in the eyes ofpublic knowing fully well that the statements made there in areFfalse and the complainant company and others are being targetedby the accused with an hidden agenda. It is therefore pay theHon’ble Court to punish the accused according to law. …”

135. It is seen that the Magistrate has issued summons to theappellant vide Annexure P5 calling upon him to appear before the CourtGon 09.09.2009. If that be so, not only was the complaint filed at thetime when Section 79, in its erstwhile avtar, was in force before thepresent provision was enforced, cognizance thereunder was also taken.If that be so, the question of exemption from liability may fall to bedecided under Section 79 of the Act as it stood and not under theHsubstituted provision.

GOOGLE INDIA PRIVATE LIMITED v.M/S. VISAKHA INDUSTRIES [K. M. JOSEPH, J.]

WHETHER APPELLANT NOT LIABLE AS IT IS ONLY ASUBSIDIARY

136. As far as the question whether being a subsidiary of GoogleLLC, the appellant is an independent body which is not to be mulctedwith liability, we would think it is not a matter to be gone into in Section482 of the Cr.PC. We have noticed the stand of the Government ofIndia also as also of the complainant.

FINDINGS OF HIGH COURT REGARDING COMPLAINANT’SNOTICE AND CONDUCT OF THE APPELLANT

137. In the impugned judgment, the learned Judge has proceededto refer to the notices, which was, according to the complaint, issued,calling upon the appellant to remove the objectionable post. It is foundthat the appellant did not move its little finger to stop dissemination ofthe unlawful and objectionable material. Therefore, the appellant cannotclaim exemption under either Section 79 of the Act, as it stood originally,or Section 79 of the Act, after the amendment which took effect from27.10.2009. It was further found that as per Section 79(3), as amended,the exemption cannot be applied by any court and claimed by anintermediary in case an intermediary entered into any conspiracy inrespect thereof. It is in this regard that we may notice that there is adefinite case for the complainant that there was a conspiracy betweenthe appellant and the first accused as it is alleged in the complaint thatthe accused, in connivance with each other, have disseminated theinformation with malafide intention. There is also reference to Section120B of the IPC besides Sections 500, 501 read with Section 34 of theIPC. As far as the view expressed in the impugned order that theappellant cannot claim any exemption under Section 79 of the Act afterthe amendment, is concerned, we are of the view that it appears to bein the teeth of the pronouncement of this Court in Shreya Singhal(supra). Section 79, as substituted, came to be read down to mean thatit 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 removalwas sought of the objectionable post, there was any decision of anycompetent court or that there was any directive of a competent authorityto remove the post. Therefore, in the light of Shreya Singhal(supra),the finding, clearly of the High Court, in this regard, appears to beunsustainable and we hold so.

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A138. The finding by the High Court that in the case on hand, inspite of the complainant issuing notice, bringing it to the notice of theappellant about the dissemination of defamatory matter on the part ofthe first accused through the medium of appellant, appellant did not moveits little finger to block the said material to stop dissemination and,therefore, cannot claim exemption under Section 79 of the Act, as itBoriginally stood, is afflicted with two flaws. In the first place, the HighCourt itself has found that Section 79, as it originally was enacted, hadnothing to do with offences with laws other than the Act. We havealso found that Section 79, as originally enacted, did not deal with theeffect of other laws. In short, since defamation is an offence underCSection 499 of the IPC, Section 79, as it stood before substitution, hadnothing to do with freeing of the appellant from liability under the saidprovision. Secondly, there is a case for the appellant that on receipt ofnotice, the appellant, as a gesture, forwarded its complaint to its ParentCompany Google LLC which called for the details by its letter dated06.01.2009. The complaint came to be filed on 21.01.2009. We do notDthink that the High Court was justified, therefore, in entering findingsin the manner it was done. Further, the High Court has not taken intoconsideration 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 conspiracyEbetween the intermediary or abetting or aiding or inducing or otherwisein the commission of the unlawful act. Again, we notice that the casein the complaint is that there was connivance between the accused.This is not a matter which we feel could be considered to be proceededunder Section 482 of the Cr.PC.F

140. We may also notice that in the Civil Suit also, the complainantmaintains that the appellant is the service provider and it has abusedthe services provided by it (see paragraph 11 of the plaint). Appellantis, undoubtedly, the second defendant whereas Google Inc. has alsobeen made a party as third defendant. We say this as appellant has aGcase that in the Civil Suit, the complainant has set up a case that it isGoogle LLC which was the actual service provider.

PUBLICATION

141. If defamatory matter is published as to who published it, isa question of fact. As already noted, publication involves bringingHdefamatory matter to the knowledge of a person or persons other than the one who is defamed. We would approve of the principles laid downby Greene L.J. in Byrne(supra) that “in some circumstances, a personby refraining from removing or obliterating the defamatory matter, isnot committing any publication at all. In other circumstances, he maybe doing so. The test, it appears to me is this: having regard to all thefacts of the case, is the proper inference that by not removing thedefamatory matter, the defendant really made himself responsible forits continued presence in the place where it has been put?” Whetherthere is publication, indeed involves asking the question also as notedby the learned Judge, as to whether there was power and the right toremove any such matter. If despite such power, and also, ability toremove the matter, if the person does not respond, it would amount topublication. The said principle, in our view, would hold good even todetermine whether there is publication under Section 499 of the IPC.The further requirement, no doubt, is indispensable, i.e., it must containimputations with the intention to harm or with knowledge or havingreasons to believe that it will harm the reputation of the personconcerned.

142. In this case, the substantial complaint of the complainantappears to be based on the refusal by the appellant to remove the matterafter being notified. Publication would be the result even in the contextof a medium like the internet by the intermediary if it defies a courtorder and refuses to takedown the matter. This, undoubtedly, is theposition even under the decision in Shreya Singhal(supra) which hasread down Section 79(3)(b) and the Intermediary Rules already noted.

143. In this regard, we may notice the following statement in thecomplaint: - “Complainant most humbly and respectfully submits that a noticeto withdraw such articles was issued by the Complainant throughit counsel on 09/12/2008, requesting Accused No. 1 & 2 towithdraw the above said articles and to render unconditionalapology and to pay a compensation of Rs.20.00 Cr. (RupeesTwenty Crores only) jointly and severally for the damage causeto Complainant’s reputation, within 15 days from the date of thereceipt of the notice. In the said notice the Complainant alsoinvited Accused No. 1 to visit the plants of the Complainant andrequested to observe the way in which the products aremanufactured and then come to a conclusion based on facts and AB

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Ascience, office copy of the notice is filed herewith for kind perusalof this Hon’ble Court. The Notice was sent under RegisteredPost with Acknowledgment Due (R.P.A.) on 10/12/2008, thereceipt of R.P.A.D. is filed herewith for kind perusal of thisHon’ble Court.

BComplainant most humbly and respectfully submits that throughthe said notice, the accused were reminded that their actstantamount to the offence punishable under Section 1208, 500& 501 of Indian Penal Code. The R.P.A.D. Notice sent toAccused No. 1 returned un-served as the Accused managed toreturn the same as “left without address” and the same is filedCherewith for the kind perusal of this Hon’ble Court. As aprecaution, the complainant on 29.12.2008 faxed the said noticeto the accused No. 1’s Office at Delhi, receipt of Fax is filedherewith for kind perusal of this Hon’ble Court and complainanton 17.12.2008 faxed the said notice to the accused No. 2’s OfficeDat Bangalore, receipt of the fax is filed herewith for kind perusalof this Hon’ble Court. Notice sent to the Bangalore Office ofthe Accused No. 2 was duly served and the acknowledgmentcard is filed herewith as a proof of the same for the kind perusalof this Hon’ble Court.”

EWe have also noticed that in the statement given by the Officerof the complaint before the Magistrate, there is reference to the dispatchof the notice.

144. As noted by us, in answering the question whether therehas been publication for the purpose of criminal libel also on the basisFthat despite the defamatory matter being notified, it is not removed, theanalogy of the wall of a club or notice board of a club may not be assuch available when it comes to medium like the internet. We havenoticed that in Byrne(supra), the test would also be whether the partyhaving the power to remove the allegedly defamatory matter and alsothe right to remove it and being able to do it without any difficulty defiesGand rejects the request. The example of the notice board or a wall ofa club, as was the case in Byrne(supra), is not strictly available whenwe 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 receiptof the letter requesting for obliterating the post was not in dispute andHmore importantly that it could have obliterated the post, was again not in controversy. For deciding whether there is publication, we see meritin the exposition of law made by the English Courts as aforesaid.

146. We have noticed that what is declared a crime in Section499 of the IPC is the making or publishing of matter which defames,as described in the Section. The making or publication must be alsoaccompanied with the intention or knowledge requisite as mentioned inthe Section to constitute that act a crime.

147. There was a notice, admittedly received from thecomplainant by the appellant, dated 09.12.2008, calling upon the appellantto, inter alia, remove the controversial post (See paragraph 9 of thePetition under Section 482 of the Cr.PC). It is the appellant’s case thatsince it did not control the services and as the notice did not concernits activities, the appellant forwarded the legal notice to its ParentCompany for its response. Appellant further contended before the HighCourt that the Parent Company, in turn, responded to the complainanton 06.01.2009. Since, the notice issued by the complainant did notdenote the space and services which allegedly host the defamatoryarticles, 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 takethe appellant’s case as it is projected. Thereafter, we will test it withreference to the jurisdiction under Section 482 of the Cr.PC as towhether this is a matter which can be gone into under Section 482. Toelaborate, we hold:

As noticed by us, it can be safely concluded that the argumentof the appellant appears to be acting on the basis of the notice sent bythe complainant to the appellant, appellant did not proceed to removethe objectionable material from the internet. The reason for doing thisis that according to the appellant, appellant is not the intermediary andthe intermediary is the Parent Company and, accordingly, it forwardedthe complaint of the complainant in the notice dated 09.12.2008 to itsParent Company. It may not be possible for this Court to find that theHigh Court was wrong in not proceeding on the basis that the appellantis 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 Section482 of the Cr.PC. As things stand, in other words, consequent uponthe notice sent to the appellant by the complainant on 09.12.2008, theappellant had refused to or has not complied with the request on the AB

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Apart of the complainant. As to whether the appellant was justified innot complying with the request, involves answering the question as towhether the appellant was the intermediary, which again, in turn, aswe have already held, may not be permissible in proceedings underSection 482 of the Cr.PC. Therefore, this is not an aspect which canform the basis for the court interfering in Section 482 of the Cr.PC.B

149. As to whether there is justification for the Parent Companyin requiring the complainant to provide the URL so that the offendingpost could be identified and dealt with and dehors it whether it couldremove the post, is again a matter, which in our view, it may not bepossible for the appellant to persuade us to hold, could be gone into theCproceedings under Section 482 of the Cr.PC. This also is on the basisthat the Parent Company is the intermediary. To make matters evenmore clear, even proceeding on the basis that the first accused is theoriginator, as defined in the Act, of the allegedly defamatory matter,and the first accused is not only the author but is also the publisher ofDallegedly defamatory matter, and again proceeding on the basis that itis the appellant, who is the intermediary and not its Parent Company,the refusal on the part of the appellant to remove the post, may amountto publication on the basis of the principle enunciated in Bryne(supra)and as applied to medium of internet in Godfrey(supra), as laterexplained, however, in Bunt(supra). In other words, there may beEpublication within the meaning of Section 499 of the IPC even in thecase of an internet operator, if having the power and the right and theability to remove a matter, upon being called upon to do so, there is arefusal to do so. This is, no doubt, subject to Shreya Singhal(supra)where it applies. It is also clear that to constitute the offenceunder Section 500 of the IPC, mere publication would not suffice. AsFwe have noted, we cannot go into that aspect on the basis of the noticesent on 09.12.2008 by the complainant on account of the obstacleswhich we have pointed out earlier. In other words, the disowning ofthe liability to remove the post is inextricably intertwined with theappellant’s denial of it being the intermediary. Also, the question as toGwhether 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 thateven accepting that the appellant is an intermediary and it had the powerHotherwise to accede to the request of the appellant to remove the

offending material, the so-called right or power of the appellant is reallynot a power and the right, but is nothing but a mere illusion as assumingsuch powers or exercising such a right would involve conferring ofunilateral and impermissible adjudicatory power, contrary to the regimeof fundamental right of free expression so indispensable to the continuedefficacy of the internet as an open democratic medium. In other words,proceeding on the basis of the assumption that the appellant is theintermediary and that it stood alerted by the complainant by letter dated09.12.2008, the appellant has not removed the offensive posts thoughit could technically remove it, therefore, it amounted to publication andthis publication attracts Section 499 of the IPC. The argument, however,is even in Section 482 of the Cr.PC, the court must qualify the rightand the power of the appellant even assuming to be the intermediaryto act freely as it would opposed to the principles which have beenevolved in regard to the internet service provider that it is not open toit to unilaterally decide as to what matter should be removed and it canact so as to remove on the basis of the request only if there is a courtorder. Any other view would make it a despot strangling the free flowof ideas which is what the internet is all about.

151. The problem arises in this way however. It is whileconsidering a challenge to Section 79 of the Act, after it was substitutedwith effect from 27.10.2009 and considering the Rules made in the year2011 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 serviceoperator to takedown third-party information not on mere knowledgeof objection to its continuance but after there has been an impartialadjudication as it were by a court. To focus more on the problem, itmust be pointed out that in the facts of this case, the acts constitutingthe alleged offence under Section 499 of the IPC, were done not whenSection 79, after its substitution, was in place. The Rules were enactedin the year 2011. In such circumstances, what we are asked to do is toimport in the principles into the factual matrix when Section 79 wasdifferently 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 theConstitution of India were very much available in 2008 and 2009 thoughSection 79 was in its erstwhile avtar. In other words, will it not be opento the appellant, assuming it to be the intermediary, to contend that itcannot be called upon to remove, defamatory matter comprised in anythird-party information without there being a court order?

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A152. It is here that we would remind ourselves that we are calledupon in this case to decide the correctness and legality of the order ofthe High Court passed in the proceedings under Section 482 of theCr.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 iscontended that the appellant has no role. It has no control over theBservices provided on the website. Thereafter, it is contended that eventhe employees of the Parent Company do not have the ability to removethe content posted on the blog without an order from a court ofcompetent jurisdiction. It is the further case before the High Court thatunder the law of United States of America which governed theCfunctioning of the Parent Company, it is not obliged or required toremove any allegedly defamatory content without the court order. Therewas no contention taken that on the basis that even if appellant isassumed to be the intermediary, the continuance of the articles after arequest by the complainant to remove it, would not constitute publicationat the hands of the appellant for the reason that it will not constituteDpublication as there is no court order in India. It was also, no doubt,true that the decision of this Court in Shreya Singhal(supra) wasrendered nearly five years after the impugned judgment of the HighCourt. As already noticed, what was laid down in Shreya Singhal(supra)was premised upon the challenge to Section 79(3)(b) which replacedEthe erstwhile avtar of Section 79 and also a challenge to the IntermediaryRules of 2011, both of which provisions came to be read down by thecourt.

153. What appellant is asking this Court to do is to decide thepoint which is not even raised as such before the High Court. HavingFnoticed the exact ground taken before the High Court, it relates to theinability of the Parent Company to remove the post without the courtorder. However, we feel that this is a question which can be, independentof the non-availability of the protection under Section 79 of the Act inits erstwhile avtar, pursued by the appellant. This is a matter whichwe leave it open to the appellant to urge before the Court.G

154. There is a complaint by the appellant that the Magistratedid not have territorial jurisdiction over the appellant and the procedureunder Section 203 of the Cr.PC should have been followed. We noticedthat this contention was not raised before the High Court. We furthernoticed that on this ground alone, in the facts of this case, after nearlyHa 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.

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

1. We reject the contention of the appellant that the HighCourt should have acted on the Google LLC conditionsBand found that the appellant is not the intermediary. Wehold that this is a matter for trial.

2. We hold that Section 79 of the Act, prior to itssubstitution, did not protect an intermediary in regard tothe offence under Section 499/500 of the IPC.

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3. We set aside the findings by the High Court regardingthe alleged refusal of the appellant to respond to thenotice to remove. We make it clear, however, that it isfor the Court to decide the matter on the basis of thematerials placed before it, and taking into consideration,the observations contained in this judgment.D

156. We leave open the contentions of the parties except thosewhich we have finally pronounced upon. Subject to the above, theMagistrate shall proceed with the complaint. The appeal stands disposedof as aforesaid.

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Appeal disposed of.

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