NO PROTECTION UNDER SEC 79 OF IT ACT FROM CRIMINAL DEFAMATION5 min read

BY- ZETA PEREIRA

BACKGROUND ( Criminal Defamation IT Act )

Immunity in law refers to the exemption granted by a statute. The exemption can be for a penalty, a legal duty or prosecution. These exemptions can be granted to an individual or a legal entity like a company. Some of the notable types of immunities are- diplomatic immunity (this immunity is granted to diplomats or ambassadors), judicial immunity (this immunity protects judges from their judicial actions) and witness immunity (when the prosecutor grants immunity to the witness in exchange for testimony or production of evidence. Legal immunity has been criticized as it can be abused or exploited by the ones who have been granted immunity.

CURRENT ISSUE ( Criminal Defamation IT Act )

The Supreme Court in the case of Google India Private Ltd.  v. Visakha Industries and another rejected Google India’s plea of immunity from liability as an internet intermediary under IT Act and directed Google India to face trial in a Criminal Defamation case.

There was an amendment made to Section 79 of the Information Technology (IT) Act in the year 2009. Prior to the amendment, a network service provider was protected only from liability under the IT Act and protection did not extend to liabilities arising under other enactments. The complaint in this case was raised before the 2009 Amendment to Section 79 of the IT Act and based on this reasoning, the court held that Google India cannot claim immunity from liability from Criminal Defamation under Section 499 (defamation) of the Indian Penal Code.

The Supreme Court of India did not adjudicate on another contention made by Google India stating that it is not an intermediary but only a subsidiary of Google LLC and said that was matter for another trial. The court also set aside findings by the High Court of Andhra Pradesh stating that Google India had failed to act despite receiving notice served by the complainant asking it to take down the defamatory articles hosted by it.

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QUESTION OF LAW ( Criminal Defamation IT Act )

Visakha Industries, a company making asbestos sheets filed a criminal defamation complaint in 2009 against an individual for publishing articles against it which was hosted in the Google Groups service provided by Google. Google India was made a party to the defamation complaint on the ground that the group was hosted by it. The complainant also alleged that Google India failed to act on the notices to take down the articles and that Google India was conspiring against the company with the author of the articles.

Google India approached the High Court of Andhra Pradesh under Section 482 of the Code of Criminal Procedure (power of the High Court to quash criminal proceedings) stating that it had no liability over the Defamation articles since it is an intermediary as defined under Section 79 of the IT Act and is neither an author nor a publisher of the blog. But the High Court refused to quash the proceedings since it failed to take action against the articles despite it being notified by the aggrieved party. Therefore, it could not claim any exemption Under Section 79 of the IT Act.

Section 79 of the IT Act before the 2009 amendment read as follows:

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

Explanation.-  For the purposes of this section,-

(a) “network service provider” means an intermediary;

(b) “third party information” means any information dealt with by a network service provider in his capacity as an intermediary.

After the 2009 amendment, Section 79 expanded the protection to intermediaries. The protection was available for liabilities arising under laws other than the IT Act.

The question of law to be considered here is whether to decide the matter according to the unamended Section 79 or amended Section 79. The Supreme Court in appeal stated that as the complaint was filed before the 2009 amendment, the matter has to be decided according to Section 79 of IT Act as it stood before the amendment.

CONCLUSION ( Criminal Defamation IT Act )

The Supreme Court set aside the finding of the High Court of Andhra Pradesh regarding the alleged refusal of Google India to take down the articles hosted by it.

The contention of the appellant regarding it being not an intermediary is a matter for trial.

Section 79 of the IT Act did not protect an intermediary in regard to offence under Section 499/500 of the Indian Penal Code.

The Magistrate can proceed with the complaint.

READ ALSO : INTERPRETATION ON SECTION 164(2) OF THE COMPANIES ACT

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