The Supreme Court said that since the defamation case was filed against Google India before 2009, the amendment, which protected intermediaries over any published content would not apply to it.

Google India to face criminal trial in alleged defamation case filed by Visaka Industries
Atom Legal Wednesday, December 11, 2019 - 14:40

Google India lost its appeal in the Indian Supreme Court in a case of alleged defamation filed by an Indian company and has been ordered to face criminal trial.

The case relates to Google’s blog publishing service Google Groups carrying a blog post which was highly critical of the products being manufactured by the company, Visaka Industries. The company had repeatedly taken up with Google to have the post removed but to no avail. The company went to court and won its appeal to sue Google. Google filed an appeal with the Supreme Court against the HC judgment, but the SC did not offer it relief.

As per the court order, Google India cannot claim protection against the posting of defamatory material prior to the 2009 amendment to Section 79 of the Information Technology Act.

The court also clarified that clarified that ‘Section 79 of the Act, prior to its substitution, did not protect an intermediary in regard to the offence under Section 499/500 of the IPC’.

The order further added that whether the Indian subsidiary is an intermediary or not is a ‘matter for trial’.

The company that made the complaint against Google is Visaka Industries, a company that manufactures corrugates cement and asbestos fibre sheets. Ban Asbestos Network India (BANI), its coordinator Gopal Krishna and Google India were made the defendants. BANI had been publishing the blog posts highly critical of the products of Visaka Industries.

Since the defamation case was filed against Google India before 2009, the amendment, which protected third-party intermediaries over any published content would not apply to Google India in this case.

The relevant law is the Information Technology Act and Section 79 of this Act. The plea being taken by Google India was that the site was being operated by its parent company Google and it had no jurisdiction to remove the contents from the site. This was not accepted by the two judges who heard the case in the apex court.

The important factor in this section is the intermediary, in this case Google, is expected to expeditiously remove such contents once it has been brought to its attention and failure to do so can attract the penal provisions.

The other plea by Google India that it is not strictly an intermediary in this case has been left by the Supreme Court to the trial court to consider and decide.

The sections invoked by Visaka in its petition were criminal conspiracy (Section 120-B IPC), defamation (Section 500 IPC) and publishing defamatory content (Section 501 read with Section 34 IPC). These were the Indian Penal Code provisions. The IT Act came into the picture when Google India contested the case.

The case will go back to the trial court in Andhra Pradesh.

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