New Delhi: The Supreme Court on Tuesday paved the way for the prosecution of Google India in a criminal defamation case filed by an Andhra Pradesh-based manufacturer of asbestos cement sheets over a decade ago.

In a surprising order with wide-ranging implications, the apex court ruled that internet ‘intermediaries’ like the online search giant cannot escape liability in cases registered before the amendments to the Information Technology (IT) Act were made in October 2009.

On October 27, 2009, parliament amended the IT Act to, among other things, protect internet intermediaries from liability for criminal offences like defamatory content published by third parties on their platform.

“We hold that Section 79 of the Act, prior to its substitution, did not protect an intermediary in regard to the offence under Section 499/500 [defamation] of the IPC,” the judgement, by a two-judge bench of Justices Mohan M. Shantanagoudar and K.M. Joseph, said.

“We leave open the contentions of the parties except those which we have finally pronounced upon. Subject to the above, the Magistrate shall proceed with the complaint. The appeal stands disposed of as aforesaid,” the judgement, written by Justice K.M Joseph, added.

The apex court’s verdict was in response to an appeal filed by Google India over a 2009 criminal defamation complaint.

In 2009, a construction company called Visakha Industries, which was involved in the manufacturing of asbestos cement sheets, filed a criminal defamation case against ‘Ban Asbestos Network India’ (BANI) and its coordinator.

Visakha Industries alleged that BANI’s coordinator used a Google blogging site (Blogspost.com) to spread false information that the company was being protected because it was backed by local and national Congress party leaders.

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Google India was also arraigned as a party in the lawsuit because the blogpost was hosted on the blog publishing service of Google (Google Groups).

In 2014, the author of the post, Gopala Krishna, told The Wall Street Journal that he intended to fight the case legally. Krishna also added that he had not been formally served a summons order.

“Whatever Google has said (in court) has supported freedom of expression,” Krishna told the publication at the time. “They have done the right thing by not removing the content.”

In response to Visakha’s case, Google India moved the Andhra Pradesh high court for dismissal of the criminal charges on the grounds that it enjoyed safe-harbour protection under Section 79 of the IT Act. The Silicon Valley-based company noted that it was neither a “publisher nor endorser” of the information put out by BANI and therefore could not be held liable.

The Andhra Pradesh high court eventually dismissed Google’s contentions on the grounds that the company supposedly failed to take appropriate action by removing the allegedly defamatory material even after receiving a take-down notice.

The high court, while referring to Section 79(3)(b) of the IT Act held that Google India did not take action stop the dissemination of the allegedly objectionable material despite the company issuing a notice and bringing the defamatory material to the knowledge of the technology firm. Therefore, the court refused to grant exemptions available to intermediaries under the IT Act to Google India either under the un-amended or the amended Section 79 of the IT Act.

The search engine giant has rejected these allegations, noting that Visakha Industries did not reply to a response given by its parent firm Google Inc, asking for more information.

In 2011, Google filed an appeal in the Supreme Court. In May 2019, as part of the final arguments before the apex court, Google India’s senior counsel Sajan Poovvayya interestingly pointed out that while the company regularly removes material published on its platform that is “blatantly illegal” like child pornography, a private complaint (like the one filed by Visakha Industries) cannot be used to determine whether content is defamatory in nature.

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The Centre too appeared to agree with the stance taken by Google India, noting that there would be a “chilling effect” if intermediaries were to intervene “merely on complaints by individuals about being defamed”.

“There will be a chilling effect on free speech if one were to allow intermediaries to intervene merely on complaints by individuals about being defamed or being at the receiving end of the unfair reporting,” the judgment noted, recording submissions made by the Union government in court.

Ultimately, however, the Supreme Court has held that safe-harbour provisions under the IT Act will not apply to cases registered prior to October 27, 2009.

“It is seen that the Magistrate has issued summons to the appellant vide Annexure P5 calling upon him to appear before the Court on 09.09.2009. If that be so, not only was the complaint filed at the time when Section 79, in its erstwhile avatar, was in force before the present provision was enforced, cognisance thereunder was also taken. If that be so, the question of exemption from liability may fall to be decided under Section 79 of the Act as it stood and not under the substituted provision,” the apex court’s judgement notes.

The Wire has reached out to Google India for its comments and will update this story if and when a response is received.