Google v. Visakha: Final Arguments

Supreme Court

In 2009, Visakha Industries, a construction company involved in the manufacturing of asbestos cement sheets, filed a criminal defamation case against Ban Asbestos Network India (BANI), its coordinator and Google India. It alleged that the coordinator of BANI had written blog posts on a website owned by BANI, that contained scathing criticism of the company and therefore harmed its reputation in the market. Google India was also arraigned as a party in the litigation because the blog post was hosted on the blog publishing service of Google (Google Groups).

Google India moved the High Court of Andhra Pradesh for dismissal of the criminal charges against it on the grounds that it enjoyed safe-harbour protection under Section 79 of the IT Act. It was contended that Google is neither the publisher nor endorser of the information, and only provides a platform for dissemination of information. It, therefore cannot be held liable. The High Court refused to accept Google’s contention and dismissed the petition on the ground that Google failed to take appropriate action to remove the defamatory material, in spite of receiving a take-down notice from the company. Aggrieved by the judgment of the High court, Google filed an appeal in the Supreme Court in 2011, where the matter is currently pending.

On April 23, 2019, the matter came up for final arguments in the court of Justices Ashok Bhushan and K.M. Joseph. Senior Counsel Sajan Poovayya appeared on behalf of Google India and submitted that Google India is a subsidiary of Google US, which is a company incorporated under the laws of the United States of America. He asserted that Google India, by virtue of being a mere subsidiary does not exercise any editorial control over content posted on google groups. It was further contended that the relief claimed by the complainants is misdirected and hence not maintainable since Google India has been arraigned wrongly in this matter. Since Google US is the parent company of Google India, it is an intermediary in the present case, stated Mr. Poovayya. He mentioned that even if Google US is made a co-accused, it will be eligible for safe harbour under Section 79 of the Information Technology Act. Mr. Sajan Poovvayya pointed out that child pornography or content that is blatantly illegal is immediately pulled down from platforms, but whether a particular content is a defamatory cannot be determined by a private company. It has to be a judicial determination. It was highlighted that the terms of services is a document of unimpeachable character which clearly mentions that there is a contract between the content creator and Google Inc. The terms of services also lays down the types of content that cannot be uploaded on Google Groups. On country-specific domain names, Mr. Poovayya clarified that google.co.in is owned and operated by Google Inc and not Google India and the kind of content that can be posted on platforms is different for different countries, depending on the social and cultural context of that particular country.

Mr. Poovayya then emphasized that the present complaint is not against Google, but technology itself, since the complainant has mentioned that Google provides a service that helps in dissemination of information. He mentioned that it is not humanly possible to verify each blog post that is posted on the website since the volume of content is phenomenal. Ms. Madhavi Divan, appearing for Union of India interjected and said that Google India cannot wash its hands off saying that they are a subsidiary and therefore have no control over the content. Someone has to be made responsible.

Mr. Poovayya went on to explain the intermediary liability regime in India, including the procedure for notice and take down which had been overhauled by the Shreya Singhal judgment. He asserted that giving adjudicatory powers to intermediaries is dangerous and will lead to chilling of free speech. The law recognizes that the primary responsibility is on the originator of information since she is the author, and not on the intermediary. In a free speech democracy like India, there cannot be control of content on the Internet, he emphasized. Justice Ashok Bhushan remarked that defamation is subjective. What may be defamatory for one might not be defamatory for another. At this point, Mr. Poovayya gave the example of flag burning which is an offence in India but a symbolic act in the United States.

The hearing continued on May 1, 2019.

Mr. Sajan Poovayya appearing on behalf of Google India reiterated that removal of any content is in the hands of the parent company (Google Inc) and not Google India. He requested the bench to go through Section 2(1)(w) of the IT Act that defines ‘intermediary’ and Section 81 (IT Act to have overriding effect). He then explained that an intermediary is the connector between the ‘originator’ and ‘addressee’ as explained in the IT Act. Mr. Poovayya stated that in this case, the pre-amended section 79 of the Act will apply, but it doesn't make a difference, because Google India is not an intermediary in the present case.

Mr. Poovayya mentioned that in common law, the intermediary is not the publisher of the information. The author and publisher converge in the electronic world. He pointed out that simply hosting content does not constitute ‘knowledge’. Justice K.M Joseph enquired about the kind of functions Google India performs, to which Mr. Poovayya responded by saying that Google India is involved in research and development of software. He remarked that Google India is the subsidiary of an intermediary, but to say Google India is an intermediary is wrong.

Mr. Poovayya then addressed the criminal complaint against Google India and asserted that just because Google’s technology is responsible for dissemination of information, they cannot be made an accused in the present case. He read out Google Inc’s response to the defamation complaint, which said that Google Inc had asked for the exact message ID of the alleged defamatory content and other relevant information. Mr. Poovayya highlighted that the summons that was issued to Google India in Bangalore was outside the jurisdiction of the court. Thereafter, Google had moved the Andhra Pradesh High Court to quash the complaint. He maintained that Google Inc has no liability by virtue of being an intermediary. Explaining Shreya Singhal v. Union of India, Mr. Poovayya stated that ‘actual knowledge’ was read down to mean that a private takedown notice cannot be sent to the intermediary. It has to be either a court order or a government notification. He remarked that Google cannot sit in judgment to decide the legality of a private notice, and therefore the notice and takedown system was scrapped in Shreya Singhal. He cited the American case of Anderson v. New York wherein it was held that a telephone company is a mere conduit and cannot be held responsible for the actions of a third party.

The counsel for Visaskha Industries contended that the exemption given under Section 79 of the IT Act is subject to fulfilment of certain due diligence conditions and it will be a matter of fact whether Google adhered to the Rules. He mentioned that Google India is very secretive about the kind of functions they perform. They should come forward and tell the court what exactly is their function in India. Counsel for Visakha Industries highlighted that Google had all the power to remove the content but did not remove it which suggests that they had consented to the publication of the defamatory content. He maintained that Google may have a defence prior to Visakha Industries sending them a notice, but after receiving the notice, they were obligated to remove it as it affected the complainant’s right to reputation. Concluding his arguments, he stated that Google is present everywhere and hence cannot claim the defence of geographical location. Google ads are local in nature depending on the geographical location of the user.

Senior Counsel Madhavi Divan appeared for the Union of India. She submitted that the role of intermediaries has changed over time. Intermediary is not the publisher of information was the view 2-3 years ago. They were regarded as neutral highways, but this has changed. Now they are curating content on the basis of user behaviour and therefore cannot be regarded ‘neutral’, Ms. Divan remarked. She stated that governments all across the world are grappling with the issue of moderating illegal content on the Internet and gave the example of the Christ Church shooting in New Zealand where the perpetrator live streamed the act on Facebook. Citing Shreya Singhal, Ms. Divan maintained that it cannot be left to the subjective judgment of intermediaries to determine the legality of particular content.

The matter is reserved for judgment and all the parties are requested to submit their written submissions within a week.