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defamation case against the google =information technology act -The complainant is engaged in business of manufacturing and selling of Asbestos cement sheets and allied products. It is alleged that A-1 viz., Gopala Krishna is a Co-ordinator “Ban Asbestos India” a group which is hosted by A-2 and publishes regular articles in the said group and that on 21.11.2008 an article was published in the said group and it was captioned as “poisoning the system; Hindustan Times” aiming at a single manufacturer of Asbestos cement products viz., the complainant and names of renowned politicians of the country G.Venkata Swamy and Sonia Gandhi who have nothing to do with the ownership or management of the complainant-company were named in that article. It is further alleged that on 31.07.2008 another article captioned as “Visaka Asbestos Industries making gains” and that both the above articles contained defamatory statements against the complainant and they are available in Cyber space in the form of articles for world wide audience. In the complaint, details of defamatory remarks made in several other articles published by A-1 in A-2 group are given in detail, which details may not be necessary for the purpose of disposal of this criminal petition.=It is only under the said amendment, non-obstenti clause was incorporated in Section 79 keeping application of other laws outside the purview in a fact situation covered by the said provision. Now, after the amendment, an intermediary like a network service provider can claim exemption from application of any other law in respect of any third party information, data or communication link made available or hosted by him; provided he satisfied the requirements under Sub-section (2) of Section 79. Further, as per amended Sub- section (3) of Section 79, the exemption under Sub-section (1) cannot be applied by any Court and cannot be claimed by any intermediary in case the intermediary entered into any conspiracy in respect thereof. Also, the intermediary cannot claim exemption under Sub-section (1) in case he fails to expeditiously remove or disable access to the objectionable material or unlawful activity even after receiving actual knowledge thereof. In the case on hand, in spite of the 1st respondent issuing notice bringing the petitioner about dissemination of defamatory material and unlawful activity on the part of A-1 through the medium of A-2, the petitioner/A-2 did not move its little finger to block the said material or to stop dissemination of the unlawful and objectionable material. Therefore, the petitioner/A-2 cannot claim any exemption either under Section 79 of the Act as it stood originally or Section 79 of the Act after the amendment which took effect from 27.10.2009. The present case in the lower Court was instituted in January, 2009 relating to the offences which are being perpetrated from 31.07.2009 onwards i.e., since long prior to the amendment to the said provision. 5) There is no exemption of any criminal liability in respect of a company which is a juristic person and which has no body that can be damned or contemned. In case found guilty, the petitioner company can be awarded with appropriate punishment though not corporal punishment. In that view of the matter, I find no merit in this criminal petition. 6) Accordingly, the Criminal Petition is dismissed.

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
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Crl.P.No.7207 OF 2009 

19-04-2011 

Google India Pvt. Ltd.,

M/s.Visaka Industries Limited and another

Counsel for the Petitioner : Sri Nunepally Harinath

Counsel for the 1st Respondent: Sri N.V.Anantha Krishna
Counsel for the 2nd respondent: Public Prosecutor

:ORDER: 

 The petitioner/A-2 is accused of offences punishable under Sections 120-B,
500, 501/34 I.P.C in C.C. No.679 of 2009 on the file of XI Additional Chief
Metropolitan Magistrate, Secunderabad along with another. The petitioner/A-2 is
Google India Private Limited represented by its Managing Director (Sales and
Operations). The 1st respondent/complainant is Visaka Industries Limited,
Secunderabad represented by its authorised signatory who is its Deputy Manager-
Legal. The complainant is engaged in business of manufacturing and selling of
Asbestos cement sheets and allied products. It is alleged that A-1 viz., Gopala
Krishna is a Co-ordinator "Ban Asbestos India" a group which is hosted by A-2
and publishes regular articles in the said group and that on 21.11.2008 an
article was published in the said group and it was captioned as "poisoning the
system; Hindustan Times" aiming at a single manufacturer of Asbestos cement 
products viz., the complainant and names of renowned politicians of the country
G.Venkata Swamy and Sonia Gandhi who have nothing to do with the ownership or 
management of the complainant-company were named in that article. It is further
alleged that on 31.07.2008 another article captioned as "Visaka Asbestos
Industries making gains" and that both the above articles contained defamatory
statements against the complainant and they are available in Cyber space in the
form of articles for world wide audience. In the complaint, details of
defamatory remarks made in several other articles published by A-1 in A-2 group
are given in detail, which details may not be necessary for the purpose of
disposal of this criminal petition.
 2) It is contended by the senior counsel appearing for the petitioner/A-2
that actions of intermediaries such as Google Inc., which is a service provider
providing platform for end users to upload content, does not amount to
publication in law and consequently the question of holding such intermediaries
liable for defamation does not arise. Senior Counsel appearing for the
petitioner placed reliance on Section 79 of the Information Technology Act, 2000
(in short, the Act) in support of this contention.
 3) Section 79 which occurs in Chapter XII of the Act originally as it
stood enacted in the year 2000 reads as follows:

"CHAPTER XII 
NETWORK SERVICE PROVIDERS NOT TO BE LIABLE IN CERTAIN CASES 

79. Network service providers not to be liable in certain cases:
For the removal of doubts, it is hereby declared that no person providing any
service as a network service provider shall be liable under this Act, rules or
regulations made thereunder for any third party information or data made
available by him if he proves that the offence or contravention was committed
without his knowledge or that he had exercised all due diligence to prevent the
commission of such offence or contravention.
Explanation. For the purposes of this section,
(a) "network service provider" means an intermediary;
(b) "third party information" means any information dealt with by a network
service provider in his capacity as an intermediary."

 The said provision exempts network service providers from liability under
the Act, rules or regulations made thereunder for any third party information or
data made available by him. It did not exempt a network service provider from
liability muchless criminal liability for the offences under other laws or more
particularly under the Indian Penal Code. Further, the above provision exempts
network service provider from liability, only on proof that the offence or
contravention was committed without his 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 way of leading evidence by the accused.
Therefore, the said question is a question of fact which this Court may not go
into in this petition filed under Section 482 Cr.P.C.
 4) Chapter XII of the Act including Section 79 was amended by the
Information Technology (Amendment) Act, 2008 (10 of 2009) dated 05.02.2009 with 
effect from 27.10.2009 by way of substituting the following in the place of
original chapter:
"CHAPTER XII 
INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES 79. Exemption from liability of intermediary in certain cases:
(1) Notwithstanding anything contained in any law for the time being in force
but subject to the provisions of sub-sections (2) and (3), an intermediary shall
not be liable for any third party information, data, or communciation link made
available or hosted by him.
(2) The provisions of sub-section (1) shall apply if-
(a) the functions of the intermediary is limited to providing access to a
communication system over which information made available by third parties is
transmitted or temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under
this Act and also observes such other guidelines as the Central Government may
prescribe in this behalf.
(3) The provisions of Sub-section(1) shall not apply if-
(a) The intermediary has conspired or abetted or aided or induces whether by
threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by information, data
or communication link residing in or connected to a computer resource controlled
by the intermediary is being used to commit the unlawful act, the intermediary
fails to expeditiously remove or disable access to that material on that
resource without vitiating the evidence in any manner.
Explanation.- For the purposes of this section, the expression "third party
information" means any information dealt with an intermediary in his capacity as
an intermediary."
 It is only under the said amendment, non-obstenti clause was incorporated
in Section 79 keeping application of other laws outside the purview in a fact
situation covered by the said provision. Now, after the amendment, an
intermediary like a network service provider can claim exemption from
application of any other law in respect of any third party information, data or
communication link made available or hosted by him; provided he satisfied the
requirements under Sub-section (2) of Section 79. Further, as per amended Sub-
section (3) of Section 79, the exemption under Sub-section (1) cannot be applied
by any Court and cannot be claimed by any intermediary in case the intermediary
entered into any conspiracy in respect thereof. Also, the intermediary cannot
claim exemption under Sub-section (1) in case he fails to expeditiously remove
or disable access to the objectionable material or unlawful activity even after
receiving actual knowledge thereof. In the case on hand, in spite of the 1st
respondent issuing notice bringing the petitioner about dissemination of
defamatory material and unlawful activity on the part of A-1 through the medium
of A-2, the petitioner/A-2 did not move its little finger to block the said
material or to stop dissemination of the unlawful and objectionable material.
Therefore, the petitioner/A-2 cannot claim any exemption either under Section 79
of the Act as it stood originally or Section 79 of the Act after the amendment
which took effect from 27.10.2009. The present case in the lower Court was
instituted in January, 2009 relating to the offences which are being perpetrated
from 31.07.2009 onwards i.e., since long prior to the amendment to the said
provision.
 5) There is no exemption of any criminal liability in respect of a company
which is a juristic person and which has no body that can be damned or
contemned. In case found guilty, the petitioner company can be awarded with
appropriate punishment though not corporal punishment. In that view of the
matter, I find no merit in this criminal petition.
 6) Accordingly, the Criminal Petition is dismissed.

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