Justice Deepak Mishra , Justice M. Khanwillarkar, Justice D.Y. Chandrachud J.J
Facts of the case:
The complaint made by complainant alleging that Accused No. 1’s statement in the articles in the group hosted by the Accused No. 2 was filled with hatred towards the complainant which was defamatory in nature, which any person would find plausible. Indeed, the said statement tarnished the reputation of the complainant . The Appellant was summoned by the Magistrate pursuant to the complaint which seeks to invoke Sections 120B, 500 and 501 read with Section 34 of the Indian Penal Code, 1860 (Code). The Appellant filed the petition before the High Court to quash order passed by the Magistrate summoning Appellant for offences punishable under Sections 120B, 500 and 501 read with Section 34 of Code. The High Court dismissed the petition.
Relevant Section Information:
Technology Act, 2000 – Section 79
Decision of the SC:
The Hon’ble Supreme Court , with respect to the first issue held that the court could not interfere because a question of control arises between Google India and Google Inc., for the purposes of determining the actual responsible party which would undergo criminal proceedings was a disputed fact which could not be adjudicated under a Section 482 petition. Therefore, the Court left this issue to be argued and tried at the appropriate stage.
On the second issue, the Supreme Court held that since the complaint was filed and cognizance of the matter was taken prior to the substitution of S. 79 with the expanded scope of safe harbour, the adjudication of intermediary liability needed to be done as per the unamended S. 79. The learned counsel defending Google argued exemption under the unamended S. 79 on the basis of the Sharath Babu case before the Supreme Court, where the criminal charge of obscenity had been made against an intermediary, both under the IT Act as well as under the IPC. The Court held that because the IT Act was a special enactment which specifically covered obscene publication of electronic material, it would apply over and above provisions of the IPC. Further, since S. 79 exempted the intermediary from any liability under the IT Act, there was not further cause of action under the IPC.
On the third issue, the Supreme Court, relying upon the decisions of foreign courts, particularly in Byrne v Deane, held that the relevant test for a criminally defamatory publication was ‘whether the defendant really made himself responsible for its continued presence in the place where it has been put?’. The Court in Visakha went on to state the law on the subject of intermediary liability for criminal defamation as follows:
“…In other words, there may be publication within the meaning of Section 499 of the IPC even in the case of an internet operator, if having the power and the right and the ability to remove a matter, upon being called to do so, can refuse.”