In a shock for online platforms like Google, the Supreme Court on Tuesday held that internet intermediaries cannot be protected from criminal defamation cases registered against them prior to October 27, 2009.
It was only on October 27, 2009 that Parliament amended the Information Technology Act of 2000 to protect online intermediaries from liability for criminally defamatory content published in them by third parties.
The amended Section 79 of the 2000 Act provided that “an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.” The amendment gave almost blanket protection to intermediaries from legal action under Section 499/500 (criminal defamation) of the Indian Penal Code.
A Bench of Justices Mohan M. Shantanagoudar and K.M. Joseph pronounced the 148-page judgment on the basis of an appeal filed by Google India Pvt Ltd.
The appeal was against a criminal defamation action on the basis of a complaint filed by M/s Vishaka Industries, a manufacturer of asbestos cement sheets. Vishaka accused the co-ordinator of a Google group called ‘Ban Asbestos India’ and Google India for authoring/hosting defamatory articles against their products in 2008. The accused were asked to appear in court in September 2009 – that is before the amendment in Section 79 came into existence.
“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 of the IPC,” Justice Joseph, who wrote the judgment, concluded.
The verdict noted that Google India argued it was not a publisher of third-party content. Nor does it have knowledge of any content unless notified through an order of an appropriate court or a government agency. Google argued that its role is “passive.”
“The intermediary cannot become a private censor or arbiter of content.., it would have an adverse impact on freedom of online speech and expression,” the judgment recorded the submissions made by Google India.
In fact, the government too agreed with Google India. “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 recorded the government's submissions.
The government had said that its powers to block online information does not expand to blocking any case of defamation, contempt of court, etc.
