GOOGLE INDIA PRIVATE LIMITED v. M/S. VISAKHA INDUSTRIES

Sajan Poovayya, Sr. Adv., Ms. Priyadarshi Banerjee, Pratibhanu Singh Kharola, Mahesh Agarwal, Ankur Saigal, Nishant Rao, Saransh Jain, Madhavan Sharma, Divyang Gobind Chandiramani, E. C. Agrawala, Advs. for the Appellant. Ms. Madhavi Divan, ASG, P.S. Narasimha, Sr. Adv. Sridhar Potaraju, 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.

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

The complainant is a public limited company engaged in the business of manufacturing and selling asbestos cement sheets with seven manufacturing plants and more than twenty-five marketing offices all over India. It is further, inter alia, stated that the product is manufactured in all its plants in an environment friendly manner. The first accused is alleged to be the Coordinator of Ban Asbestos India, a group hosted by the appellant. Articles are regularly published in the said group. On 21.11.2008, an article was published. It was captioned “Poisoning the system: Hindustan Times”. The complaint targeted renowned politicians of the country who were named and who had nothing to do with the ownership and management of the company. Complainant pleads shock on seeing the article dated 31.07.2008 captioned “Visaka Asbestos Industries making gains”. It is stated that asbestos cement sheets have been manufactured for more than 70 years in India. First accused singled out the complainant though there are other groups manufacturing asbestos cement products. The relevant part, which is pertinent to the appellant is contained in paragraph-11: GOOGLE INDIA PRIVATE LIMITED v. M/S. VISAKHA INDUSTRIES [K. M. JOSEPH, J.] 671

11. Complainant most humbly and respectfully submits that the Accused No.1’s statement in the articles in the above mentioned group hosted by the Accused No.2 is filled with hatred towards Complainant which is defamatory in nature, and which a person of ordinary intelligence in society would believe the said statements. Indeed the said statement injured the reputation of Complainant. The act of the accused in posting certain defamatory articles in the cyber space, which is visited by innumerable internet surfers which has vide usage all over the world in who’s mind the complainant company is being caused with such defamatory false statements. The service provider like Accused No.2 has made it easier than ever before to disseminate defamatory statements to the world wide audience without taking any due care and diligence to prevent it. The Accused No.2 has abused the services provided by it, because both the articles in the group hosted by it was targeted towards a particular company which is well within the knowledge of the Accused No.2.

(Emphasis supplied)

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

Jurisdiction is indicated in paragraph-16 of the complaint and it read as follows: “16. JURISDICTION: The Corporate Office of the Complainant is situated at “Visaka Towers”, 1-8-303/69/3, S.P. Road, Secunderabad. Since the Corporate Office of the Complainant Company is situated within the limits of P.S. Ramgopalpet, this Hon’ble Court has got jurisdiction to try this complaint.” A B C D E F G H 672 SUPREME COURT REPORTS [2019] 17 S.C.R. A B C D E F G

Deputy Manager (Legal) of the complainant made his statement. Thereafter, the appellant came to be summoned. The summoning order read as follows:

SUMMONS TO AN ACCUSED PERSON (Sec.81 Cr.P.C.) In the Court of the XI A.C.M. Magistrate at Secunderabad 1363 c.c. No. 679/2009 Between: M/s. Visaka Industries … Complainant AND Mr. Gopal Krishna & others … Accused To, M/s. Google India Pvt. Ltd., 3rd Floor, Prestige Sigma, No.3, Vittal Mallya Road, Bangalore 560001. Whereas your attendance is necessary answer to Charge of U/s.500, 501 of I.P.C. r/w 34 you are hereby directed to appear in person or by pleader before the Hon’ble XI A.C.M.M. Court on the day 09.09.2009 10.30 A.M. Dated this……… day ……………… Seal Sd/- Magistrate

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

By the impugned judgment, the High Court has dismissed the H petition. GOOGLE INDIA PRIVATE LIMITED v. M/S. VISAKHA INDUSTRIES [K. M. JOSEPH, J.] 673 FINDINGS OF THE HIGH COURT

Section 79 of The Information Technology Act, 2000 (hereinafter referred to as ‘the Act’, for short), which appears to have been relied on by the appellant was found to not exempt a network service provider from liability much less criminal liability for the offences under other laws or, more particularly, under the IPC. It was further found that the above provision exempted Network Service Provider from liability only on proving that the offence or contravention was committed without its knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. Proof, in that regard, can be let in by leading evidence by the accused. This is a question of fact which the High Court may not go into in the petition under Section 482 of the Cr.PC.. The Court later notices the amended Section 79 of the Act which came into being with effect from 27.10.2009. It was noted that it is only under the said amendment that a non obstante clause was incorporated keeping the application of other laws outside the purview in a fact situation covered by the said provision. Under the amended Section 79, in case the intermediary enters into any conspiracy, the exemption under Section 79 of the Act could not be claimed. So also, the intermediary could not claim exemption in case he fails to expeditiously remove or disable access to the objectionable material or unlawful activity, even after receiving actual knowledge thereof.

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

The complaint was instituted in January, 2009. It related to an offence which was being perpetuated from 31.07.2008 onwards, i.e., since long before prior to the amendment of the said provision. It was finally found that there was no exemption of any criminal law in respect of a company which is a juristic person and which has no body that can be damned or condemned, in case found guilty. Appellant can be awarded with appropriate punishment though not corporal punishment. Finding no merit, the petition was dismissed. A B C D E F G H 674 SUPREME COURT REPORTS [2019] 17 S.C.R. A B C D E F G H

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

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

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

The suit filed by the complainant came to be dismissed by judgment dated 17.02.2014. The complainant succeeded in the first appeal and the court decreed the suit on 29.01.2016. The appellants preferred a second appeal. The appeal came to be allowed by the High GOOGLE INDIA PRIVATE LIMITED v. M/S. VISAKHA INDUSTRIES [K. M. JOSEPH, J.] 675 Court on 18.01.2016 by which the suit came to be dismissed against the appellant which was the second defendant. It is pointed out that the appellant has filed a review confined in nature against the same. The complainant has also filed a review.

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

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

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

Next, it contended that the ingredients of the offence of defamation under Section 499 of the IPC have not been made out. The first ingredient being publication of an imputation has not been satisfied qua the appellant but only as against the first accused. An intermediary