post any inappropriate, defamatory, infringing, obscene, or unlawful Content;

73. We may also notice, under the head “Propriety Rights”, “Google’s Rights”, it is mentioned as follows:

“6. Proprietary Rights Google’s Rights Google and its affiliates and licensors own and retain all rights in the Service, which contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorised by Google, you may not copy, modify, publish, transmit, distribute, perform, display or sell any of Google’s proprietary information. “GOOGLE GROUPS”, are trademarks of Google.”

74. We may also notice the following under head “Advertisements”: “9. Advertisements Google Groups is an ad-supported service. As such, we display advertisements and promotions on the Service. The manner, mode and extent of advertising by Google on the Service are subject to change. You agree that Google shall not be responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such advertisers on the Service.”

75. Also, we noticed the conditions under the heading “Disclaimer of Warranties”:

“11. Disclaimer of Warranties Google and its affiliates, licensors, partners, suppliers, consultants and agents (“Google Entities”) disclaim any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or Content displayed on the Service. The Google Entities disclaim any and all responsibility and liability for your conduct and for the conduct of others using the Service.

THE SERVICE, AND ALL CONTENT, INFORMATION (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION OR CONTENT OBTAINED OR ACCESSED THROUGH THE SERVICE), PRODUCTS AND SERVICES INCLUDED THEREIN ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. THE GOOGLE ENTITIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW AND EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERHCNTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.

Some states do not allow the exclusion or limitation of implied warranties, so the above disclaimers and exclusions may not apply to you. YOU AGREE THAT YOUR USE OF THE SERVICES ARE ENTIERLY AT YOUR OWN RISK”

76. It is further submitted that the terms of service would constitute the entire agreement between the party and Google. Under the “Google Groups Content Policy”, it was brought to our notice by the learned Counsel for the appellant that Google has a zero-tolerance policy towards the content that exploits children. Google retains the power to remove hate speech which is explained as content that promotes hate or violence towards groups based on race, ethnicity, religion, disability, gender, age, veteran status, or sexual orientation/gender identity. There is an exhortation against threatening, harassing or bullying other people using Groups. There is again the condition that groups cannot be used to encourage any illegal activities or to promote dangerous and illegal activities.

77. As far as decision in Rajiv Thapar(supra), relied upon by appellant, is concerned, it involved the following facts. The appellant therein was married to the deceased. The deceased fell ill and was admitted in the hospital. She was diagnosed with as suffering from malaria. After she was discharged, she again fell ill. The Echocardiography confirmed presence of a large hole in her heart. She succumbed to a massive heart attack. Suspecting poisoning, father of the deceased filed the complaint. The Medical Board found death due to cardiac decompensation. The CFSL Report also indicated no common poison. The Metropolitan Magistrate, who was approached by the father of the deceased, committed the case to the Sessions Court who discharged the appellant-accused. The High Court, however, set aside the order. It was in these circumstances, this Court took the following view in regard to the manner in which the matter must be approached when a party approaches High Court under Section 482 of the Cr.PC:

“28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.

30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:

30.1.Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?

30.2.Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.3.Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/ complainant?

30.4.Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”

(Emphasis supplied)

78. The court also declared that the High Court must be fully satisfied about the material and that material produced by the accused must be such that the defence is based on sound, reasonable and indisputable facts.

79. In HMT Watches (supra), the complaint was one under Section 138 of the Negotiable Instruments Act, 1881. In the said case, this Court faulted the High Court in having expressed its view on disputed questions of fact in a petition under Section 482 to conclude that an offence was not made out. Factual matters which were not admitted between the parties could not form the basis for the High Court to interfere.

80. In regard to the attempt, on the part of the appellant, to persuade us to follow the judgment of this Court in Rajiv Thapar (supra), we felt dissuaded from undertaking the said course on the following reasoning. It is true that a perusal of the petition before the High Court reveals that appellant has purported to take up the contention that the website is the service offered by the Google Inc, the parent company of the appellant and that the services are provided by the parent company directly to the users. It is also the case of the appellant that service provided on the website is free and the end user can post a blog without making any payment. The terms of service and content policy on the website is also seen produced. Impugned order of the High Court, however, reveals that the court understood the arguments apparently of the appellant as follows:

“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.”

81. The defence raised by the appellant, which, according to him, consisted of documents in the form of the conditions stipulated by the parent company in its conditions, are disputed. To expatiate, according to the respondent, the said contention is factual. There is a case also that they are produced without complying with the mandate of Section 65B of the Indian Evidence Act, 1872. In this regard, reliance is placed onAnvar P.V. v. P.K. Basheer and others23. There is also definite case for the respondent that appellant cannot be allowed to disown its role in the Google Groups being part of the common economic entity. It is contended by the complainant that the appellant did not clarify by way of answer to the query by the court as to what activities they indulge in India. The Memorandum of Association is referred to contend that the main objects include providing network related products or services and applications.

It is the case of the complainant further that in fact the entire operations of Google Economic Entity, the users are provided digital space purportedly free but are made to part with their personal data as consideration. The said data is used for generating advertisement revenues. The onus would be on the appellant if it seeks to dispel this fact to lead evidence to show that the appellant does not have any role to plea in the activities of Google. As to whether, it is Google INC, which is responsible for the Google Groups and the appellant is not, it is contended by the complainant, is a matter for evidence. It cannot be determined on the basis of photocopies of documents filed with the paper books before this Court.

82. We have noticed that the appellant appears to have produced the Google Groups conditions even before the High Court. It is also appeared to have taken the contention that it is Google Groups which is an intermediary.

83. In this connection, it is our view that this is not a case where the High Court could be invited particularly in the light of the stand of the complainant, as noticed, to decide in favour of the appellant by holding that it is the parent company which is the actual intermediary and not appellant. We are not inclined in this regard to borrow any findings from the Civil Court in proceedings under Section 482 of the Cr.PC. We must remind ourselves also that the proceedings are at the stage where the High Court appear to have entered a finding in favour of the appellant in the Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’, for short). However, it is common case that both parties have filed Review Petitions. In other words, the matter has not yet attained finality.

84. In this regard, the question, however, arises whether the complainant accepts this version of the appellant or disputes it. We would think that the complainant does not accepts the actual role of the appellant. The nature of operations of the appellant, according to the appellant, is not clear. What is the actual relationship between the Parent Company and appellant, is, according to the complainant, a matter for decision on evidence being taken. In other words, the contention of the appellant that appellant is not an intermediary and, hence, cannot be fastened, at any rate, with criminal liability, is subject matter of dispute.

WHETHER “SHARAT BABU DIGUMARTI V. GOVERNMENT (NCT OF DELHI)” COMES TO THE RESCUE OF THE APPELLANT?

85. There is need to also address an argument based on the decision of this Court in Sharat Babu Digumarti v. Government (NCT of Delhi)24.

86. Section 81 of the Act reads as follows:

“81. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.”

87. This Court, in Sharat Babu (supra), was dealing with a complaint under Sections 292 and 294 of the IPC and Section 67 of the Act. The central issue which arose for consideration was, whether the appellant therein, who stood discharged under Section 67 of the Act, could be proceeded under Section 292 of the IPC. Section 292 of the Code makes it an offence to sell, hire, distribute, etc., any obscene object, whatsoever. Other offences relating to dealing in obscene objects, also form the subject matter of the Section. The court referred to the definition of “electronic record” under Section 2(1)(t) of the Act and found it was a question relating to electronic record. Thereafter, the court referred to Section 67 of the Act which penalises publishing or transmitting obscene material in electronic form. Section 67B punishes and penalises publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.

88. The argument of the appellant, thus, is seen noted as hereunder:

“29. We have referred to the aforesaid aspect as it has been argued by Dr Singhvi that the appellant is protected under the said provision, even if the entire allegations are accepted. According to him, once the factum of electronic record is admitted, Section 79 of the IT Act must apply ipso facto and ipso jure. The learned Senior Counsel has urged Section 79, as the language would suggest and keeping in view the paradigm of internet world where service providers of platforms do not control and indeed cannot control the acts/omissions of primary, secondary and tertiary users of such internet platforms, protects the intermediary till he has the actual knowledge.

He would contend that the Act has created a separate and distinct category called “originator” in terms of Section 2(1)(z)(a) under the IT Act to which the protection under Section 79 of the IT Act has been consciously not extended. Relying on the decision in Shreya Singhal [Shreya Singhal v. Union of India, (2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449] , he has urged that the horizon has been expanded and the effect of Section 79 of the IT Act provides protection to the individual since the provision has been read down emphasising on the conception of actual knowledge. Relying on the said provision, it is further canvassed by him that Section 79 of the IT Act gets automatically attracted to electronic forms of publication and transmission by intermediaries, since it explicitly uses the non obstante clauses and has an overriding effect on any other law in force. Thus, the emphasis is on the three provisions, namely, Sections 67, 79 and 81, and the three provisions, according to Dr Singhvi, constitute a holistic trinity.”

89. Thereafter, the court referred to Section 81 which we have extracted, and finally, the court held as follows:

“32. Section 81 of the IT Act also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.”

90. We are not inclined to accept this argument based on the dicta laid down in Sharat Babu (supra). It is true that the offences were alleged to have been committed at a time when Section 79 had not been substituted, as we notice that cognizance was taken on 14.02.2006. We may notice the reasoning in paragraph 37, which reads as follows:

“37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.”

91. We, in fact, notice that this Court was persuaded to place reliance on Section 79 of the Act which was inserted as a result of the substitution with effect from 27.10.2009. The provisions of Section 79 are not seen expressly extracted or referred to by the court.

92. Section 79, even prior to its substitution, did protect the intermediary from liability for offences under the Act. This was a case where the appellant was sought to be prosecuted under Section 292 of the IPC even though he had been discharged under Section 67 of the Act. The offence was one which properly fell within the scope of Section 67 in so far as the offending matter, was contained in an electronic record, as defined. Therefore, it could be reasoned that it having been found, he had not committed the offence under Section 67 of the Act, having regard to Section 81, the prosecution under Section 292 of the IPC, may not stand since special provisions have overriding effect. That explains the statement of the law contained in paragraph 37 of the judgment, viz., “when the Act in various provisions deals in obscenity in other forms, it covers the offence under Section 292 of the IPC.

93. The premise of the judgment of this Court in Sharat Babu (supra) was that what was involved was an electronic record within the meaning of the Act. The appellant in the said case stood discharged under Section 67 of the Act. The reasoning, which has been upheld by the Court, was that the special provisions contained in the Act would override and cover a criminal act and he would get out of the net of the IPC which in the said case was Section 292. To repeat, the appellant stood discharged under Section 67 of the Act, and therefore, could not be prosecuted under Section 292 of the IPC.

94. In this context, we must examine whether there is any provision in the Act which deals with the offence of defamation committed in the electronic form. In fact, in this regard, it is relevant to notice the judgment of this Court in Shreya Singhal (supra).

95. Incidentally, the learned Senior Counsel who appeared for the appellant also appeared in the said case for some of the parties and in the summary of arguments raised by him wherein, inter alia, he contended that the existing provisions of the IPC and of the Act, i.e., Section 67, 66B, 66C, 66D, 66E and 66F adequately covers various offences. In regard to sending defamatory messages by e-mail, the provision under the Act was shown as Section 66A and it was contended that the provision in the IPC corresponding to Section 66A was Section 500 of the IPC. This Court dealt with the matter and held, inter alia, as follows:

“45. “Defamation” is defined in Section 499 of the Penal Code as follows:

“499. Defamation.-Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Explanation 1.-It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2.-It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.-An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.-No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.” 46. It will be noticed that for something to be defamatory, injury to reputation is a basic ingredient. Section 66-A does not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation. It is clear, therefore, that the section is not aimed at defamatory statements at all.”

(Emphasis supplied)

96. At any rate, Section 66A has been declared unconstitutional by this Court. Apart from Section 66A, there is obviously no other provision in the Act which deals with defamation in the electronic form. In that way, the subject of defamation would be governed by Section 500 of the IPC. Therefore, the reliance placed on Shreya Singhal (supra) is without any basis.

ASSUMING APPELLANT IS AN INTERMEDIARY: A BRIEF OVERVIEW OF THE LAW OF DEFAMATION

97. The next question is proceeding on the basis that it is the appellant which is the intermediary within the meaning of the Act whether the appellant could be foisted with liability in a case where appellant is being proceeded against in a criminal case for having committed the offence under Section 500 read with Section 120B of the IPC. In this regard, let us consider the contentions of the complainant. It is first contended that the appellant’s role in the control of Google Groups as publisher is a question of fact. It is pointed out that Google has control on the content being uploaded by the authors. It has full freedom to remove any content without reference to anyone much less court orders. Google itself recognizes that defamation is not an accepted conduct and takes an undertaking from its users. Google cannot claim to be mere passive technology service provider which is promoting free speech. It provides various tools to create/edit/modify the content apart from uploading the content. It is contended that for the purpose of defamation, Google may have some defence till such time till they are not aware of the defamatory content. However, once they are made aware of the defamatory content, then, by allowing the same to continue, refusing to exercise control as platform provider, it becomes fully liable for the consequences of publishing defamatory material. Being a technology giant, is not a license to break laws. It does not provide immunity from the liability under the IPC.

98. There is an attempt by the appellant before us to contend that even taking the averments in the posts which have been uploaded by the first accused, it would not amount to defamation. The essence of the offence of defamation, as defined in Section 499, would consist of words either spoken or intended to be read or by signs or by visible representations making or publishing any imputation concerning any person with the intention to harm or knowing or having reason to believe that such imputation will harm the reputation of that person subject to the Exceptions and Explanations which follow the main provision. Explanation II declares that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation IV reads as follows:

“Explanation 4.-No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.”

99. It is undoubtedly true that the first Exception exempts from criminal liability, statements which are true and which are required for public good. It reads as follows:

“First Exception.-Imputation of truth which public good requires to be made or published.-It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.”

100.The 9th Exception may be relevant. It reads as follows:

“Ninth Exception.-Imputation made in good faith by person for protection of his or other’s interests.-It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. Illustrations (a) A, a shopkeeper, says to B, who manages his business-“Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty”. A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.

(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception. Tenth Exception.-Caution intended for good of person to whom conveyed or for public good.-It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good. COMMENTS Imputation without publication In section 499 the words “makes or publishes any imputation” should be interpreted as words supplementing to each other. A maker of imputation without publication is not liable to be punished under that section; Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 Supreme Today 127.”

101.We would not think that it would be appropriate, proper or legal for the court to accept the submission of the appellant that the post in question do not constitute defamation. This is for the reason that such an exercise would be out of bounds in the facts of this case, in particular, in a petition filed under Section 482 of the Cr.PC. As to whether it constitute defamation and as to whether it falls in any of the Explanations/Exceptions, would be all matters to be decided by the court.

102.The question which remains is everything being assumed in favour of the complainant, viz., that the first accused has posted defamatory material by uploading it on the platform and the appellant is an intermediary providing the said platform, the argument of the appellant is that even then, the appellant is not liable. We have noticed the stand of the Government of India also. An intermediary provides a platform. Millions of posts are uploaded every day. We have noticed the definition of words “originator” and “addressee”. The case of the appellant is that the originator in this case, the first accused, is the author of the alleged defamatory material. Unlike an article which is written by person ‘A’ and which is got published in a newspaper or publication which is brought out by a person ‘B’, the case of the appellant is that the first accused is both the originator, and therefore, the author and he is also the publisher. Assuming everything against the appellant as aforesaid, the offence if at all has been committed, may have been committed by the first accused.

The appellant seeks to wash its hands off the contents of the article as also the publication. The responsibility for authoring the material and publishing(uploading) lies at the doorstep of the fist accused. The appellant has no role at all in this matter. In such circumstances, it is the case of the appellant that having regard to the role played by the appellant, again assuming that it is the intermediary, involved in this case, it cannot be made liable. It is the further case of the appellant that at the most, liability may arise, if a party aggrieved by material, which can be understood as electronic record under the Act, approaches the appellant armed with a court order or an authority directing it to remove the offending posts. Till then, the appellant is not liable, in law, to take steps against the material. This is apart from pointing out that it is incumbent upon the complaining party to assist the intermediary by providing it with the URL so that the matter could be located and action taken.

In fact, in this case, it is pointed out that the appellant, as a good gesture, upon receipt of complaint, written to parent company, which, in fact, is the intermediary and the parent company wrote back seeking URL. The actions of the appellant have been bonafide. It has no role to play in the commission of the alleged offence. It is in this context that appellant would contend that in law an intermediary cannot and should not be designated as the Competent Authority to decide upon the question as to whether any material falls foul of the law of defamation leading to the unilateral interference with the free exchange of ideas though the internet. Internet, it is pointed out, is universal, and in the words of the Government of India, which supports the appellant in this Court, a democratic medium for the free exchange of ideas. Any conferment of unilateral power upon the intermediary would introduce what is called the chilling effect.

SECTION 499 OF THE IPC: “MAKES OR PUBLISHES”: DISTINCTION

103.It is important that we notice the indispensable ingredients of the offence under Section 499 of the IPC. Section 499 reads as follows:

“499. Defamation.-Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”

104.Under the said provision, the Law Giver has made the making or publishing of any imputation with a requisite intention or knowledge or reason to believe, as provided therein, that the imputation will harm the reputation of any person, the essential ingredients of the offence of defamation. What is the meaning to be attached to the words “making of an imputation” and “publishing of an imputation”? This question has been set out with clarity in a recent judgment which is reported inMohd. Abdulla Khan v. Prakash K.25. It was held as follows:

“10. An analysis of the above reveals that to constitute an offence of defamation it requires a person to make some imputation concerning any other person;

(i) Such imputation must be made either

(a) With intention, or

(b) Knowledge, or

(c) Having a reason to believe that such an imputation will harm the reputation of the person against whom the imputation is made.

(ii) Imputation could be, by

(a) Words, either spoken or written, or

(b) By making signs, or

(c) Visible representations

(iii) Imputation could be either made or published. The difference between making of an imputation and publishing the same is: If ‘X’ tells ‘Y’ that ‘Y’ is a criminal – ‘X’ makes an imputation. If ‘X’ tells ‘Z’ that ‘Y’ is a criminal – ‘X’ publishes the imputation.

The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made. [Khima Nand v. Emperor, 1936 SCC OnLine All 307 : 1937 Cri LJ 806; Amar Singh v. K.S. Badalia, 1964 SCC OnLine Pat 186 : (1965) 2 Cri LJ 693]”

WHETHER SECTION 499 OF THE IPC EXHAUSTIVE OF CRIMINAL LIBEL?

105.We may incidentally also notice an earlier judgment of this Court in this context reported inM.C. Verghese v. T.J. Poonan and another26. The daughter of the appellant therein, who was married to the respondent (T.J. Poonan), received certain letters from her husband which the appellant-father-in-law complained as containing defamatory statements against him. The Magistrate took the view that being a communication between husband and wife, it did not amount to defamation as there was no publication since in the eye of law, as the husband and wife are one. He also took the view that the communication between the spouses was privileged under Section 122 of the Indian Evidence Act, 1872. This Court reversed the view taken by the High Court which had upheld the view of the Magistrate though in the interregnum the Magistrate’s view did not find favour with the learned Sessions Judge. This Court took the view that the principle, the husband and wife are one in the eye of law, has not been adopted in its full force under our system and certainly not in our criminal jurisprudence (see paragraph 7). It is, thereafter, that the Court made following observations:

“10. It must be remembered that the Penal Code, 1860 exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted.

11. In Tiruvengadda Mudali v. Tripurasundari Ammal [ILR 49 Mad 728] a Full Bench of the Madras High Court observed that the exceptions to Section 499 IPC, must be regarded as exhaustive as to the cases which they purport to cover and recourse can be had to the English common law to add new grounds of exception to those contained in the statute. A person making libellous statements in his complaint filed in Court is not absolutely protected in a criminal proceeding for defamation, for under the Eighth Exception and the illustration to Section 499 the statements are privileged only when they are made in good faith. There is therefore authority for the proposition that in determining the criminality of an act under the Penal Code, 1860 the Courts will not extend the scope of special exceptions by resorting to the rule peculiar to English common law that the husband and wife are regarded as one.”

106.No doubt, the Court did not express a final opinion.

107.In the light of this discussion, we may only reiterate that the criminal offence of defamation under Section 499 of the IPC is committed when a person makes a defamatory imputation which, as explained in Mohd. Abdulla Khan (supra), would consist of the imputation being conveyed to the person about whom the imputation is made. A publication, on the other hand, is made when the imputation is communicated to persons other than the persons about whom the defamatory imputation is conveyed. A person, who makes the defamatory imputation, could also publish the imputation and thus could be the maker and the publisher of a defamatory imputation. On the other hand, a person may be liable though he may not have made the statement but he publishes it.

108.In this case, the case of the appellant appears to be that it is indisputable that it is the first defendant who has not only authored the statements containing imputations which are allegedly defamatory but it is he who has also published it. In this regard, the parties before us have drawn our attention to case law emanating from courts other than in India.

THE DEFAMATION ACTS IN ENGLAND: A LOOK AT SOME DECISIONS UNDER THE SAME

109.Before we proceed to consider the case law, a bird’s overview of the law of defamation, as contained in United Kingdom, may be appreciated. The Defamation Act of 1952, as contained in Sections 4,7,8,9(2) and 9(3) and Sections 16(2) and 16(3) came to be repealed by the Defamation Act of 1996. The Defamation Act of 2013 further amended the law by declaring that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant which, in the case of body that trades for profit, it was made clear that the serious harm would not arise unless there is caused serious financial loss or likelihood of such loss. Truth was declared as a defence. Certain defences were introduced. Considerations of public interest was introduced in regard to operators of website. Section 5 was enacted, which reads as follows:

“5. Operators of websites

(1) This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.

(2) It is a defence for the operator to show that it was not the operator who posted the statement on the website.

(3) The defence is defeated if the claimant shows that-

(a) it was not possible for the claimant to identify the person who posted the statement,

(b) the claimant gave the operator a notice of complaint in relation to the statement, and

(c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

(4) For the purposes of subsection (3) (a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.

(5)Regulations may-

(a) make provision as to the action required to be taken by an operator of a website in response to a notice of complaint (which may in particular include action relating to the identity or contact details of the person who posted the statement and action relating to its removal);

(b) make provision specifying a time limit for the taking of any such action;

(c) make provision conferring on the court a discretion to treat action taken after the expiry of a time limit as having been taken before the expiry;

(d) make any other provision for the purposes of this section.

(6) Subject to any provision made by virtue of subsection (7), a notice of complaint is a notice which-

(a) specifies the complainant’s name,

(b) sets out the statement concerned and explains why it is defamatory of the complainant,

(c) specifies where on the website the statement was posted, and

(d) contains such other information as may be specified in regulations.

(7) Regulations may make provision about the circumstances in which a notice which is not a notice of complaint is to be treated as a notice of complaint for the purposes of this section or any provision made under it.

(8) Regulations under this section-

(a) may make different provision for different circumstances;

(b) are to be made by statutory instrument.

(9) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(10) In this section “regulations” means regulations made by the Secretary of State.

(11) The defence under this section is defeated if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.

(12) The defence under this section is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others.”

110.There are other provisions which need not detain us. We may, no doubt, also notice the meaning of the word “publish”, inter alia, as contained in Section 15 of the Defamation Act, 2013:

“15. “publish” and “publication”, in relation to a statement, have the meaning they have for the purposes of the law of defamation generally;”

111.The Act was to apply only to England and Wales. Certain provisions were to apply to Scotland also.

112.It may be noticed, however, that the Defamation Act, 1996, as indeed the Defamation Act, 1952, provided as follows:

113.In Section 20(2) of the Defamation Act, 1996, it is stated that nothing in the said Act affected the law relating to criminal libel. There is a similar provision in the Defamation Act, 1952. Section 17(2) of the Defamation Act, 1952 also declared that nothing in the Act affected the law relating to criminal libel.

114.Criminal libel, however, came to be repealed by the Coroners and Justice Act, 2009.

115.The complainant would refer to judgment in Byrne v. Deane27 as also Payam Tamiz v. Google Inc.28. The appellant, on the other hand, relied upon the judgment of the Queens Bench in Bunt v. Tilley29. There is also reference by the respondent to the judgment in Godfrey v. Demon Internet Limited30. Let us now take these cases in the chronological order and the context in which the matter arose and was decided.

116. In Byrne (supra), the facts may be noticed. The complainant was a member of a Golf Club. The defendants were the proprietors and the female defendant was also the Secretary. The rules of the Club, inter alia, prohibited posting of any notice or placard in the Club premises without the consent of the Secretary. There were certain automatic gambling machines kept by the defendants for the use of the members of the Club. On a complaint, the machines were removed from the Club premises. Alleging that a defamatory verse was put up on the wall of the Club, the plaintiff brought an action in libel alleging publication by the defendants of matter defamatory to him. In short, it was his case that the words were meant to convey that it was the plaintiff who reported the matter to the Police which undermined his loyalty to the members of the Club. The learned Judge, who heard the civil action for damages, gave judgement to the plaintiff. He came to the conclusion that the matter complained of was defamatory. He further found that since the defendants allowed the notice to remain on the walls of the Club, over which the defendants have complete control, the publication of it was made with their approval and they had, therefore, published that libel. As regards the question whether there was publication by the defendants, the Court, by a majority, took the view that there was publication. Greer L.J. held as follows:

“It was a proprietary club. The difference between a proprietary club and an ordinary club is that in a proprietary club the proprietor or proprietors remain in possession of the club. The two defendants are the lessees of the club and they are the occupiers of the club premises, and the walls are their walls, and in my judgment they allowed a defamatory statement to be put up on their walls and to remain on their walls in a position in which it could be read by anybody who came into the club. Undoubtedly it must have been so read not only by people who were members of the club but by people who were not members of the club, and who only came in possibly for a drink with a member or to play a game of some sort or another. Quite a number of illustrations have been put forward as illustrations which give rise to similar questions to the question that arises in this case.

In my judgment the nearest case put forward is this: assume that a defamatory poster was hung upon the garden rail of Mr. Smith’s house which adjoins the street so that the defamatory statement can be read by every one who passes the house. Could it not be said that by allowing that poster to remain hanging upon the garden rail of his house the occupier of the house was taking part in the publication of that poster to people passing his house, when the simplest operation in the world, namely, cutting the rope by which the poster was hung upon the rail and taking the poster away, would have made the poster from that time innocuous? In my judgment the two proprietors of this establishment by allowing the defamatory statement, if it be defamatory, to rest upon their wall and not to remove it, with the knowledge that they must have had that by not removing it it would be read by people to whom it would convey such meaning as it had, were taking part in the publication of it.”

117.Slesser L.J. wrote a separate opinion wherein he took the view that complainant had failed to show publication against the male defendant. With regard to the female defendant, it was held as follows:

“With regard to the female defendant I think it may be said – although it is perhaps extending the evidence of publication rather further than has ever been done in the past in any case which I have been able to discover – that there was some evidence of publication on the part of the female defendant.”

118.Greer L.J., further held as follows:

“No notice or placard, written or printed, shall be posted in the club premises without the consent of the secretary,” and her evidence is to this effect, that she knew that this alleged libel had been placed on the wall of the club. Her view was that she could see no harm in it. She said: “I read it. It seemed to me somebody was rather annoyed with somebody.” I think having read it, and having dominion over the walls of the club as far as the posting of notices was concerned, it could properly be said that there was some evidence that she did promote and associate herself with the continuance of the publication in the circumstances after the date when she knew that the publication had been made.”

119.Greene L.J., took the view that there was evidence of publication by both the defendants. It was held as follows: “Now, on the substantial question of publication, publication, of course, is a question of fact, and it must depend on the circumstances in each case whether or not publication has taken place. It is said that as a general proposition where the act of the person alleged to have published a libel has not been any positive act, but has merely been the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all.

In other circumstances he may be doing so. The test it appears to me is this: having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put? I may give as an example of a case which would fall on one side of the line: suppose somebody with a mallet and a chisel carved on the stonework of somebody’s house something defamatory, and carved it very deeply so that the removal of it could only be effected by taking down the stonework and replacing it with new stonework. In a case of that kind it appears to me that it would be very difficult, if not indeed impossible, to draw the inference that the volition of the owner of the house had anything to do with the continued presence of that inscription on his stonework.

The circumstance that to remove it would require very great trouble and expense would be sufficient to answer any such aspersion. On the other hand you have a case such as the present where the removal of this particular notice was a perfectly simple and easy thing to do involving no trouble whatsoever. The defendants, having the power of removing it and the right to remove it, and being able to do it without any difficulty at all, and knowing that members of the club when they came into the room would see it, I think must be taken to have elected deliberately to leave it there. The proper inference, therefore, in those circumstances it seems to me is that they were consenting parties to its continued presence on the spot where it had been put up. That being so it seems to me that they must be taken to have consented to its publication to each member who saw it.”

(Emphasis supplied)

120.In Godfrey (supra), the case was a civil action. The complainant was a Lecturer in Physics, Mathematics and Computer Science resident in England. The defendant was an internet service provider. On the 13th of January, 1997, some unknown person made a post in the U.S.A. in news group soc.culture.thai and stores which was carried on by the defendant. For about a fortnight, the posting was available to be read by its customers. According to the complainant, it was defamatory, inter alia, to him. It purported to emanate from the complainant though his name was misspelt. Complainant claimed it to be a forgery. He sent a letter to the Managing Director of the defendant-company about the posting being a forgery and disowning responsibility of the same, he requested removal of the same from the server. It was not disputed by the defendant that it could have obliterated the post after receiving the request. The court examined the matter thereafter, on the basis of the governing law, viz., Defamation Act, 1996. The following discussion is relevant:

“The law The governing statute is the Defamation Act 1996. Section 1, which is headed

“Responsibility for publication”, provides:

(1) In defamation proceedings a person has a defence if he shows that- (a) he was not the author, editor or publisher of the statement complained of, (b) he took reasonable care in relation to its publication, and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.” It should be noted that for the defence to succeed (a) and (b) and (c) have to be established by the defendant. Section 1 continues:

“(2) For this purpose ‘publisher’ [has] the following meanings, which are further explained in subsection (3) ‘publisher’ means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.

“(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved-(a) in printing, producing, distributing or selling printed material containing the statement (c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form (e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control. In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.

“(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be had to-(a) the extent of his responsibility for the content of the statement or the decision to publish it, (b) the nature or circumstances of the publication, and (c) the previous conduct or character of the author, editor or publisher.” In my judgment the defendants were clearly not the publisher of the posting defamatory of the plaintiff within the meaning of section 1(2) and (3) and incontrovertibly can avail themselves of section 1(1)(a). However the difficulty facing the defendants is section 1(1)(b) and (c). After 17 January 1997, after receipt of the plaintiff’s fax, the defendants knew of the defamatory posting but chose not to remove it from their Usenet news servers. In my judgment this places the defendants in an insuperable difficulty so that they cannot avail themselves of the defence provided by section 1.”

(Emphasis supplied)

121.The court purported to follow the judgment in Byrne (supra) and held as follows: “The defendants chose to store soc.culture.thai postings within their computers. Such postings could be accessed on that newsgroup. The defendants could obliterate and indeed did so about a fortnight after receipt.”

(Emphasis supplied)

122.The court finally concluded that the plaintiffs summons to strike out parts of the defence as disclosing no sustainable defence which was to the effect that in common law, they were not publishers of the internet posting. The plaintiff’s summons was allowed to strike out the defence.

123.Now, we may turn to Bunt (supra) decided on 10.03.2006 by the Queen’s Bench Division of the High Court. Defendants 4 to 6 in the civil proceeding were internet service providers. The service providers applied under Civil Procedure Rules (CPR) 3.4(2) and (CPR) 24 for an order to the High Court. The claim of the plaintiff was based on the allegation that the individual defendants published the offending words through the services provided by the internet service providers. In paragraph 7, the Court considered it necessary to consider the defence relied upon by the parties which, in fact, was admissible for the purpose of CPR Part 24. The court referred to the decision in Godfrey (supra). The court also held, inter alia, as follows:

“15. Publication is a question of fact, and it must depend on the circumstances of each case whether or not publication has taken place: see e g Byrne v Deane [1937] 1 KB 818, 837-838, per Greene LJ. The analogies that were held to be inappropriate in Godfrey v Demon Internet Ltd might yet be upheld where the facts do not disclose onward transmission with knowledge of the defamatory content. As Dr Collins observes in The Law of Defamation and the Internet, para 15.43:

“Mere conduit intermediaries who carry particular Internet communications from one computer to another are analogous to postal services and telephone carriers in the sense that they facilitate communications, without playing any part in the creation or preparation of their content, and almost always without actual knowledge of the content.” Such an approach would tend to suggest that at common law such intermediaries should not be regarded as responsible for publication. Indeed, that is consistent with the approach in Lunney where the New York Court of Appeals drew an analogy between an ISP and a telephone company “which one neither wants nor expects to superintend the content of his subscriber’s conversations”.

22. I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn [1899] AC 549, 562: “A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish.” In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day. It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that “publication”.

23. Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words . It is not enough that a person merely plays a passive instrumental role in the process. (See also in this context Emmens v Pottle (1885) 16 QBD 354, 357, per Lord Esher MR.)

30. In so far as the claimant seeks support in Godfrey Demon Internet Ltd [2001] QB 201, there are plainly significant distinctions. Morland J deprived the ISP in that case from protection under section 1 of the 1996 Act because it had continued publication of the same defamatory statements after Mr Godfrey’s letter had been received, asking for them to be removed from the Usenet news server. Here, by contrast, the claimant is relying upon separate postings. In these there is no reference to batteries, but rather to suggestions of fraud and “kiddie porn”. There are no pleaded facts to suggest any knowing participation by AOL in the publication of these words.

31. Ms Phillips accordingly submits that an ISP should not become liable as a publisher (especially for postings on a site which it does not host) simply because it has been previously told of wholly unrelated allegedly defamatory statements, not necessarily even by the same author. That is a powerful argument which is relevant, as I have said, both to the fundamental issue of publication at common law and to statutory defences which I shall have to consider later.

36. In all the circumstances I am quite prepared to hold that there is no realistic prospect of the claimant being able to establish that any of the corporate defendants, in any meaningful sense, knowingly participated in the relevant publications. His own pleaded case is defective in this respect in any event. More generally, I am also prepared to hold as a matter of law that an ISP which performs no more than a passive role in facilitating postings on the Internet cannot be deemed to be a publisher at common law. I would not accept the claimant’s proposition that this issue “can only be settled by a trial”, since it is a question of law which can be determined without resolving contested issues of fact.”

(Emphasis supplied)

124.Thereafter, the Court also referred to the Electronic Commerce Directive (Regulations), 2002. Still further, the Court referred in detail to the witness statement of the Director (Technical and Operations) in AOL:

“53. There is no expert challenge to that evidence, and I have no reason to doubt that it represents the true position. How then does the claimant propose to overcome the protection claimed by the fourth and fifth defendants under these Regulations? As I have said, he relies on “simple logic”. He does not rely on any expert report. I turn therefore to his case as clarified in the light of the order of Gray J.

54. It is necessary to consider para 19 of the amended particulars of claim which advances a proposition to the effect that there is an obligation to “gatekeep” its conduit. The nub of this submission appears to be contained in sub-paras (i) and (j):

“(i) An ISP providing a leased line connection to a customer has an extremely good argument under both the Defamation Act 1996 and also the Electronic Commerce Directive 2002 that it is no more than a ‘conduit’, that it has no knowledge or control over what passes through that ‘conduit’, and that the entire responsibility for what does pass through that ‘conduit’ rests with the customer who has purchased it, as it is the customer and not the ISP who acts as a ‘gatekeeper’ for that ‘conduit’. An ISP providing a standard domestic consumer or SOHO Internet access package to a customer has no possible hope of successfully arguing that it is a mere ‘conduit’ and therefore immune from that law, as all content originates from within their own network, instead of merely passing through it in ‘Via’ fashion from one network to another.

“(j) In these circumstances not only is the ISP most definitely acting as sole ‘gatekeeper’ between the source of the defamatory material and the Internet, they also provide a bundle of other services each of which clearly falls foul of the other provisions of the Electronic Commerce Directive 2002 which, for example, only allows the minimum level of cacheing technically necessary for the underlying technology of message transmission to function.” The notion of a “gatekeeper” appears to derive from the claimant himself; it is nowhere to be found in the regulations.”

77. In conclusion, I am quite satisfied that the claims against these applicants should be struck out in accordance with CPR Pt 3, and indeed that there would be no realistic prospect of success on any of the causes of action. Thus the criteria under CPR Pt 24 would also be fulfilled.”

125.At this juncture, it is necessary also to refer to CPR 3.4(2):

“Power to strike out a statement of case 3.4.(2) The court may strike out(GL) a statement of case if it appears to the court-

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or court order.”

126.In Richardson (supra), decided on 02.11.2015, the claimant sought damages in respect of publication on a Facebook profile and a blog post on the Google blogger service. The profile and the blog post were purportedly created by that claimant but the claimant complained that they were fake being created by an imposter. She claimed that both were defamatory and violated her right to respect for her private life under Article 8 of the European Convention on Human Rights. Proceedings were commenced against Facebook U.K. in respect of the profile they described as the Facebook action and against Google U.K. Limited in respect of the blog post, shown as the Google action. The action came to be dismissed. The principle ground was that the suit was against the company which was not responsible for the publication which meant that she had prosecuted the case against the wrong defendant. In appeal, she cited certain issues to be referred to the Court of Justice of the European Union. The Court referred to Bunt (supra), Godfrey (supra) and Byrne (supra). The Court held as follows:

“32. The underlying rationale of the decision in Byrne v Deane, that the defendants were responsible for publication, was that they were in control of the notice board and had the power to act so as to remove a posting by a third party which was unauthorised and wrongful; by failing to exercise that power in the knowledge of the posting they became liable for its continued publication. This rationale is plainly capable of applying to some of those involved in the provision of internet services and social media platforms.”

(Emphasis supplied)

127.Thereafter, the Court went on to notice that the Defamation Act, 1996, mitigated the rigor of the common law principles by providing a defence for those who by application of those principles were publishers of common law. Court further went on to hold that internet service providers and others are not responsible for publication according to the common law principles discussed, that is to say, who were not publishers at common law, had no need to take resort under the Defamation Act. The court went on to refer to Defamation Act, 2013 which came into force on 01.01.2014. Further, the court held as follows:

“39. The pleading acknowledges on its face that Facebook Inc “owns” the Facebook Service and the associated website. It appears to adopt the statement in the terms of service that Facebook Ireland Ltd is, according to the terms of service, responsible for processing data outside the US and Canada. So far as FBUK is concerned, there is an allegation that it was notified of the offending postings. However, the pleading wholly fails to advance against FBUK any clear or coherent case that it has or had any form of control over any aspect of the content of the Facebook Service, let alone the Profile. The allegation that FBUK was notified of the claimant’s complaint goes beyond what is alleged earlier in the pleading, where notification is said to have been given to “the Facebook Service” and “Facebook”. It also appears to be factually untenable. But even if it were true it could not, in the absence of an allegation that FBUK had the power or ability to control content, form a proper basis for the attribution of responsibility for publication on the basis of Byrne v Deane principles.”

128.The court further observed that on the evidence, the claimant had known Byrne (supra) without any prospect of success. In this regard, the court relied on the evidence led which was to the effect that the claim was fundamentally defective because Facebook U.K. Limited had no involvement or responsibility for the Facebook service. The material further was to the effect that the Facebook service was operated by Facebook Inc., a corporation existing under the laws of the United States. Facebook Ireland Limited, a company organized and existing under the laws of the Republic of Ireland has explained in its terms of service that users outside of the United States of America and Canada contracted with the Facebook Ireland Limited.”

129.The material was to the effect that Facebook U.K. Limited was a separate and distinct entity. Facebook U.K. Limited’s sole corporate purpose is public relation, consultancy, and communications in the United Kingdom. There was also reference to decisions of English Courts previously finding that Facebook U.K. Limited do not control or operate the Facebook services.

130.The court took the view that Facebook U.K. Limited persuaded it that if there were a trial, it would inevitably demonstrate that it was not responsible. An attempt was made by the claimant to draw support from Google Spain SL (supra) decision. The argument appears to have been that on the basis of the said decision, Facebook Inc. and its subsidiaries were to be treated as a single economic unit and Facebook U.K. Limited should also be responsible for the publication of the profile. The court rejected the contention. One of the reasons given was that Google Spain SL (supra) was a decision which was based on the scope and application of the data protection directions. The court took the view that the decision in Google Spain SL (supra) had nothing to say about the domestic law of responsibility of publication in defamation.

It was a matter to be determined by the common law and the Defamation Acts. It was further found that claimant had misunderstood the relevant aspect of the Google Spain SL (supra) decision. It was found that the Court of Justice of European Union (CJEU) did not hold that parent and subsidiary companies are to be treated as a single unit. Google Spain SL (supra) revolved around the interpretation and application of Article 4(1) of the Directive. The court went on to hold that the controller within the meaning of the directives was Google Inc.. In Google Spain SL (supra), court held that Google Spain was not a data controller.

131.On the one hand, the appellant sought to draw support from Richardson (supra) whereas, on the other hand, the complainant laid store by Google Spain SL (supra). We have noticed the context in which the questions arose. As far as English decision is concerned, it was a civil action. The material before the learned Judge who allowed the application by Facebook U.K. Limited and Google U.K. was apparently in terms of the procedural laws, perhaps akin to Order VII Rule 11 of the Code of Civil Procedure, 1908. More importantly, there was material before the court even in dismissing the claims on the application of the defendants.

132.We are, in this case, concerned with the ambit of jurisdiction under Section 482 of the Cr.PC. We also notice that the decision rendered in Google Spain SL (supra) appears to have turned on the scope of the directive as noticed in Richardson (supra).

EFFECT OF SUBSTITUTION OF SECTION 79 OF THE ACT

133.Section 79 of the Act came to be substituted with effect from 27.10.2009. In fact, the effect of substitution of a provision has been dealt with by this Court in the decision in State of Rajasthan v. Mangilal Pindwal31:

“10. Similarly in Crawford’s Interpretation of Laws it has been said: “Effect of Repeal, Generally.- In the first place, an outright repeal will destroy the effectiveness of the repealed act in futuro and operate to destroy inchoate rights dependent on it, as a general rule. In many cases, however, where statutes are repealed, they continue to be the law of the period during which they were in force with reference to numerous matters.” (pp. 640-641)

11. The observations of Lord Tenterden and Tindal, C.J. referred in the above-mentioned passages in Craies on Statute Law also indicate that the principle that on repeal a statute is obliterated is subject to the exception that it exists in respect of transactions past and closed. To the same effect is the law laid down by this Court. (See: Qudrat Ullah v. Municipal Board [(1974) 1 SCC 202:(1974) 2 SCR 530], SCR at p. 539)

12. This means that as a result of repeal of a statute the statute as repealed ceases to exist with effect from the date of such repeal but the repeal does not affect the previous operation of the law which has been repealed during the period it was operative prior to the date of such repeal.”

134.In this case, the complaint itself is dated 21.01.2009. The sworn statement of Deputy Manager (Legal) of the complainant is recorded on 27.02.2009. The sworn statement reads as follows:

“I am the complainant herein. I am working a1s Deputy Manager-legal in the complainant company. Complainant company manufactures Asbestos Cement sheets and it is having various manufacture units throw out India. Accused No.1 is a coordinator of Ban Asbestos India a Group hosted by Accused No.2 and publishes articles in the group regarding various issues on 21st November, 2008 an article was published in A2 group as Poisoning the system: Hindustan times. Complainant was surprised to note that article is aimed at complainant company and also against renowned politicians of the country i.e. Mr. G. Venkat Swamy and Smt. Sonia Gandhi where as these people have nothing to do with the complainant company and again on 31st July, 2008 an article was captioned A2 Group as Visaka Asbestos Industries making gains both articles contains defamatory statements against the complainant which is available in the cyber space in the form of an article for world wide audience. The complainant submits acts and deeds of the accused not only harm the complainant company but also integrity of the working people.

Complainant humbly submits that there are other groups like Everest Group, Ramco Group and Birla Group which are also engaged in the same group. But the accused No.1 unnecessarily dragged the complainant and the politicians of the country with malicious intention. The complainant further submits that A1 trying to bring down the complainant image by running hate campaign against the complainant through the above said articles. After seeing this article the complainant has sent notice dated 10.12.2008 through Registered Post which A1 returned unserved and the Fax was received by both the accused.

The above article caused damage to the reputation of the complainant. A1 with malafide intention to cause damage to the reputation to complainant has published such articles. I further submit that the acts and deeds of the accused being committed in violation of the fundamental rights and the action on the part of the accused in making such defamatory statements are premeditated and intended to lower the image cause defamation in the eyes of public knowing fully well that the statements made there in are false and the complainant company and others are being targeted by the accused with an hidden agenda. It is therefore pay the Hon’ble Court to punish the accused according to law.”

135.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 avtar, was in force before the present provision was enforced, cognizance 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.

WHETHER APPELLANT NOT LIABLE AS IT IS ONLY A SUBSIDIARY

136. As far as the question whether being a subsidiary of Google LLC, the appellant is an independent body which is not to be mulcted with liability, we would think it is not a matter to be gone into in Section 482 of the Cr.PC. We have noticed the stand of the Government of India also as also of the complainant.

FINDINGS OF HIGH COURT REGARDING COMPLAINANT’S NOTICE AND CONDUCT OF THE APPELLANT

137.In the impugned judgment, the learned Judge has proceeded to refer to the notices, which was, according to the complaint, issued, calling upon the appellant to remove the objectionable post. It is found that the appellant did not move its little finger to stop dissemination of the unlawful and objectionable material. Therefore, the appellant cannot claim exemption under either 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. It was further found that as per Section 79(3), as amended, the exemption cannot be applied by any court and claimed by an intermediary in case an intermediary entered into any conspiracy in respect thereof.

It is in this regard that we may notice that there is a definite case for the complainant that there was a conspiracy between the appellant and the first accused as it is alleged in the complaint that the accused, in connivance with each other, have disseminated the information with malafide intention. There is also reference to Section 120B of the IPC besides Sections 500, 501 read with Section 34 of the IPC. As far as the view expressed in the impugned order that the appellant cannot claim any exemption under Section 79 of the Act after the amendment, is concerned, we are of the view that it appears to be in the teeth of the pronouncement of this Court in Shreya Singhal (supra). Section 79, as substituted, came to be read down to mean that it is not sufficient if a notice is given to delete a post to the intermediary.

The applicant, who seeks a removal, must be armed with a court order. In this case, there is no case for the complainant that when the removal was sought of the objectionable post, there was any decision of any competent court or that there was any directive of a competent authority to remove the post. Therefore, in the light of Shreya Singhal (supra), the finding, clearly of the High Court, in this regard, appears to be unsustainable and we hold so.

138.The finding by the High Court that in the case on hand, in spite of the complainant issuing notice, bringing it to the notice of the appellant about the dissemination of defamatory matter on the part of the first accused through the medium of appellant, appellant did not move its little finger to block the said material to stop dissemination and, therefore, cannot claim exemption under Section 79 of the Act, as it originally stood, is afflicted with two flaws. In the first place, the High Court itself has found that Section 79, as it originally was enacted, had nothing to do with offences with laws other than the Act.

We have also found that Section 79, as originally enacted, did not deal with the effect of other laws. In short, since defamation is an offence under Section 499 of the IPC, Section 79, as it stood before substitution, had nothing to do with freeing of the appellant from liability under the said provision. Secondly, there is a case for the appellant that on receipt of notice, the appellant, as a gesture, forwarded its complaint to its Parent Company Google LLC which called for the details by its letter dated 06.01.2009. The complaint came to be filed on 21.01.2009. We do not think that the High Court was justified, therefore, in entering findings in the manner it was done. Further, the High Court has not taken into consideration the distinction between blocking and a takedown.

139.Even Section 79, as substituted with effect from 27.10.2009, denies the benefit of the exemption in a case where there is a conspiracy between the intermediary or abetting or aiding or inducing or otherwise in the commission of the unlawful act. Again, we notice that the case in the complaint is that there was connivance between the accused. This is not a matter which we feel could be considered to be proceeded under Section 482 of the Cr.PC.

140.We may also notice that in the Civil Suit also, the complainant maintains that the appellant is the service provider and it has abused the services provided by it (see paragraph 11 of the plaint). Appellant is, undoubtedly, the second defendant whereas Google Inc. has also been made a party as third defendant. We say this as appellant has a case that in the Civil Suit, the complainant has set up a case that it is Google LLC which was the actual service provider.

PUBLICATION

141.If defamatory matter is published as to who published it, is a question of fact. As already noted, publication involves bringing defamatory matter to the knowledge of a person or persons other than the one who is defamed. We would approve of the principles laid down by Greene L.J. in Byrne (supra) that “in some circumstances, a person by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances, he may be doing so. The test, it appears to me is this: having regard to all the facts of the case, is the proper inference that by not removing the defamatory matter, the defendant really made himself responsible for its continued presence in the place where it has been put?” Whether there is publication, indeed involves asking the question also as noted by the learned Judge, as to whether there was power and the right to remove any such matter. If despite such power, and also, ability to remove the matter, if the person does not respond, it would amount to publication. The said principle, in our view, would hold good even to determine whether there is publication under Section 499 of the IPC. The further requirement, no doubt, is indispensable, i.e., it must contain imputations with the intention to harm or with knowledge or having reasons to believe that it will harm the reputation of the person concerned.

142.In this case, the substantial complaint of the complainant appears to be based on the refusal by the appellant to remove the matter after being notified. Publication would be the result even in the context of a medium like the internet by the intermediary if it defies a court order and refuses to takedown the matter. This, undoubtedly, is the position even under the decision in Shreya Singhal (supra) which has read down Section 79(3)(b) and the Intermediary Rules already noted.

143.In this regard, we may notice the following statement in the complaint: –

“Complainant most humbly and respectfully submits that a notice to withdraw such articles was issued by the Complainant through it counsel on 09/12/2008, requesting Accused No. 1 2 to withdraw the above said articles and to render unconditional apology and to pay a compensation of Rs.20.00 Cr. (Rupees Twenty Crores only) jointly and severally for the damage cause to Complainant’s reputation, within 15 days from the date of the receipt of the notice. In the said notice the Complainant also invited Accused No. 1 to visit the plants of the Complainant and requested to observe the way in which the products are manufactured and then come to a conclusion based on facts and science, office copy of the notice is filed herewith for kind perusal of this Hon’ble Court. The Notice was sent under Registered Post with Acknowledgment Due (R.P.A.) on 10/12/2008, the receipt of R.P.A.D. is filed herewith for kind perusal of this Hon’ble Court. Complainant most humbly and respectfully submits that through the said notice, the accused were reminded that their acts tantamount to the offence punishable under Section 1208, 500 501 of Indian Penal Code.

The R.P.A.D. Notice sent to Accused No. 1 returned un-served as the Accused managed to return the same as “left without address” and the same is filed herewith for the kind perusal of this Hon’ble Court. As a precaution, the complainant on 29.12.2008 faxed the said notice to the accused No. 1’s Office at Delhi, receipt of Fax is filed herewith for kind perusal of this Hon’ble Court and complainant on 17.12.2008 faxed the said notice to the accused No. 2’s Office at Bangalore, receipt of the fax is filed herewith for kind perusal of this Hon’ble Court. Notice sent to the Bangalore Office of the Accused No. 2 was duly served and the acknowledgment card is filed herewith as a proof of the same for the kind perusal of this Hon’ble Court.” We have also noticed that in the statement given by the Officer of the complaint before the Magistrate, there is reference to the dispatch of the notice.

144.As noted by us, in answering the question whether there has been publication for the purpose of criminal libel also on the basis that despite the defamatory matter being notified, it is not removed, the analogy of the wall of a club or notice board of a club may not be as such available when it comes to medium like the internet. We have noticed that in Byrne (supra), the test would also be whether the party having the power to remove the allegedly defamatory matter and also the right to remove it and being able to do it without any difficulty defies and rejects the request. The example of the notice board or a wall of a club, as was the case in Byrne (supra), is not strictly available when we are asked to apply it as such in the case of medium like internet.

145.As was noted in Bunt (supra), in Godfrey (supra), the receipt of the letter requesting for obliterating the post was not in dispute and more importantly that it could have obliterated the post, was again not in controversy. For deciding whether there is publication, we see merit in the exposition of law made by the English Courts as aforesaid.

146.We have noticed that what is declared a crime in Section 499 of the IPC is the making or publishing of matter which defames, as described in the Section. The making or publication must be also accompanied with the intention or knowledge requisite as mentioned in the Section to constitute that act a crime.

147.There was a notice, admittedly received from the complainant by the appellant, dated 09.12.2008, calling upon the appellant to, inter alia, remove the controversial post (See paragraph 9 of the Petition under Section 482 of the Cr.PC). It is the appellant’s case that since it did not control the services and as the notice did not concern its activities, the appellant forwarded the legal notice to its Parent Company for its response. Appellant further contended before the High Court that the Parent Company, in turn, responded to the complainant on 06.01.2009. Since, the notice issued by the complainant did not denote the space and services which allegedly host the defamatory articles, the complainant was asked to provide the exact details.

148.It is again the appellant’s case that the complainant, however, proceeded to file the complaint on 21.01.2009. We will take the appellant’s case as it is projected. Thereafter, we will test it with reference to the jurisdiction under Section 482 of the Cr.PC as to whether this is a matter which can be gone into under Section 482. To elaborate, we hold: As noticed by us, it can be safely concluded that the argument of the appellant appears to be acting on the basis of the notice sent by the complainant to the appellant, appellant did not proceed to remove the objectionable material from the internet. The reason for doing this is that according to the appellant, appellant is not the intermediary and the intermediary is the Parent Company and, accordingly, it forwarded the complaint of the complainant in the notice dated 09.12.2008 to its Parent Company.

It may not be possible for this Court to find that the High Court was wrong in not proceeding on the basis that the appellant is not the intermediary. The defence set up by the appellant in this case, is not a matter which can be gone into in proceedings under Section 482 of the Cr.PC. As things stand, in other words, consequent upon the notice sent to the appellant by the complainant on 09.12.2008, the appellant had refused to or has not complied with the request on the part of the complainant. As to whether the appellant was justified in not complying with the request, involves answering the question as to whether the appellant was the intermediary, which again, in turn, as we have already held, may not be permissible in proceedings under Section 482 of the Cr.PC. Therefore, this is not an aspect which can form the basis for the court interfering in Section 482 of the Cr.PC.

149.As to whether there is justification for the Parent Company in requiring the complainant to provide the URL so that the offending post could be identified and dealt with and dehors it whether it could remove the post, is again a matter, which in our view, it may not be possible for the appellant to persuade us to hold, could be gone into the proceedings under Section 482 of the Cr.PC. This also is on the basis that the Parent Company is the intermediary. To make matters even more clear, even proceeding on the basis that the first accused is the originator, as defined in the Act, of the allegedly defamatory matter, and the first accused is not only the author but is also the publisher of allegedly defamatory matter, and again proceeding on the basis that it is the appellant, who is the intermediary and not its Parent Company, the refusal on the part of the appellant to remove the post, may amount to publication on the basis of the principle enunciated in Bryne (supra) and as applied to medium of internet in Godfrey (supra), as later explained, however, in Bunt (supra).

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 upon to do so, there is a refusal to do so. This is, no doubt, subject to Shreya Singhal (supra)where it applies. It is also clear that to constitute the offence under Section 500 of the IPC, mere publication would not suffice. As we have noted, we cannot go into that aspect on the basis of the notice sent on 09.12.2008 by the complainant on account of the obstacles which we have pointed out earlier. In other words, the disowning of the liability to remove the post is inextricably intertwined with the appellant’s denial of it being the intermediary. Also, the question as to whether the demand for the URL and justification for not removing, based on the same being questions essentially relating to the facts, cannot be gone into in Section 482 proceedings.

150.The only aspect, which really remains, is the aspect that even accepting that the appellant is an intermediary and it had the power otherwise to accede to the request of the appellant to remove the offending material, the so-called right or power of the appellant is really not a power and the right, but is nothing but a mere illusion as assuming such powers or exercising such a right would involve conferring of unilateral and impermissible adjudicatory power, contrary to the regime of fundamental right of free expression so indispensable to the continued efficacy of the internet as an open democratic medium.

In other words, proceeding on the basis of the assumption that the appellant is the intermediary and that it stood alerted by the complainant by letter dated 09.12.2008, the appellant has not removed the offensive posts though it could technically remove it, therefore, it amounted to publication and this publication attracts Section 499 of the IPC. The argument, however, is even in Section 482 of the Cr.PC, the court must qualify the right and the power of the appellant even assuming to be the intermediary to act freely as it would opposed to the principles which have been evolved in regard to the internet service provider that it is not open to it to unilaterally decide as to what matter should be removed and it can act so as to remove on the basis of the request only if there is a court order. Any other view would make it a despot strangling the free flow of ideas which is what the internet is all about.

151.The problem arises in this way however. It is while considering a challenge to Section 79 of the Act, after it was substituted with effect from 27.10.2009 and considering the Rules made in the year 2011 also, and a challenge to the same also, that in Shreya Singhal (supra), the provisions were read down to mean that Section 79(3)(b) of the Act and Rule 3(4) of the Rules, would require an internet service operator to takedown third-party information not on mere knowledge of objection to its continuance but after there has been an impartial adjudication as it were by a court. To focus more on the problem, it must be pointed out that in the facts of this case, the acts constituting the alleged offence under Section 499 of the IPC, were done not when Section 79, after its substitution, was in place. The Rules were enacted in the year 2011.

In such circumstances, what we are asked to do is to import in the principles into the factual matrix when Section 79 was differently worded and in proceedings under Section 482 of the Cr.PC. It is, undoubtedly, true that Article 19(1)(a) and Article 19(2) of the Constitution of India were very much available in 2008 and 2009 though Section 79 was in its erstwhile avtar. In other words, will it not be open to the appellant, assuming it to be the intermediary, to contend that it cannot be called upon to remove, defamatory matter comprised in any third-party information without there being a court order?

152.It is here that we would remind ourselves that we are called upon in this case to decide the correctness and legality of the order of the High Court passed in the proceedings under Section 482 of the Cr.PC. This contention, as such, has not been raised. We notice, in fact, that in the very first ground, however, before the High Court, it is contended that the appellant has no role. It has no control over the services provided on the website. Thereafter, it is contended that even the employees of the Parent Company do not have the ability to remove the content posted on the blog without an order from a court of competent jurisdiction. It is the further case before the High Court that under the law of United States of America which governed the functioning of the Parent Company, it is not obliged or required to remove any allegedly defamatory content without the court order.

There was no contention taken that on the basis that even if appellant is assumed to be the intermediary, the continuance of the articles after a request by the complainant to remove it, would not constitute publication at the hands of the appellant for the reason that it will not constitute publication as there is no court order in India. It was also, no doubt, true that the decision of this Court in Shreya Singhal (supra) was rendered nearly five years after the impugned judgment of the High Court. As already noticed, what was laid down in Shreya Singhal (supra) was premised upon the challenge to Section 79(3)(b) which replaced the erstwhile avtar of Section 79 and also a challenge to the Intermediary Rules of 2011, both of which provisions came to be read down by the court.

153.What appellant is asking this Court to do is to decide the point which is not even raised as such before the High Court. Having noticed the exact ground taken before the High Court, it relates to the inability of the Parent Company to remove the post without the court order. However, we feel that this is a question which can be, independent of the nonavailability of the protection under Section 79 of the Act in its erstwhile avtar, pursued by the appellant. This is a matter which we leave it open to the appellant to urge before the Court.

154.There is a complaint by the appellant that the Magistrate did not have territorial jurisdiction over the appellant and the procedure under Section 203 of the Cr.PC should have been followed. We noticed that this contention was not raised before the High Court. We further noticed that on this ground alone, in the facts of this case, after nearly a decade of the matter pending in this Court, it would be unjust to remand the matter back to the Magistrate, which we must indeed note, was one of the submissions of the appellant.

155.The upshot of the above discussion is as follows: 1. We reject the contention of the appellant that the High Court should have acted on the Google LLC conditions and found that the appellant is not the intermediary. We hold that this is a matter for trial. 2. 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. 3. We set aside the findings by the High Court regarding the alleged refusal of the appellant to respond to the notice to remove. We make it clear, however, that it is for the Court to decide the matter on the basis of the materials placed before it, and taking into consideration, the observations contained in this judgment.

156.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.

…………………..J. (Ashok Bhushan)

…………………..J. (K.M. Joseph)

New Delhi;

December 10, 2019.

1 (2013) 3 SCC 330

2 (2015) 11 SCC 776

3 (2017) 2 SCC 18

4 (2015) 5 SCC 1

5 (2017) 3 SCC 528

6 (2014) 10 SCC 473

7 (2010) 7 SCC 578

8 (2015) 5 SCC 1

9 (1995) 2 SCC 161

10 (2013) 3 SCC 697

11 (2017) 2 SCC 18

12 116 (2005) DLT 427

13 ECLI:EU:C:2014:317

14 (2015) EWHC 3154 (QB)

15 (1995) 1 SCC 478

16 (1988) 4 SCC 59

17 (1992) Supp (1) SCC 335

18 (2010) 6 SCC 243

19 (2008) 3 SCC 753

20 116/2005 DLT 427

21 (2013) 3 SCC 330

22 (2015) 11 SCC 776

23 (2014) 10 SCC 473

24 (2017) 2 SCC 18

25 (2018) 1 SCC 615

26 (1969) 1 SCC 37

27 (1937) 1 KB 818

28 (2013) EWCA CB 68

29 (2006) EWHC 407

30 (2001) QB 201

31 (1996)5 SCC 60/AIR 1996 SC 2181

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