Summary
The Court declined to quash a criminal-defamation complaint concerning posts from 2008, holding that the then-existing Section 79 IT Act did not immunise an intermediary against IPC defamation. Whether Google India was the relevant intermediary required trial. The High Court’s adverse findings on failure to remove the posts were set aside, and defences not finally resolved remained open. The decision distinguished the later substituted safe-harbour regime and Shreya Singhal.
Issues
- Whether the original Section 79 barred prosecution for IPC defamation.
- Whether disputed corporate roles and service terms justified quashing under Section 482 CrPC.
- Whether the High Court’s findings about failure to remove posts and the reliance on later intermediary protections could stand.
Provisions considered
- Section 79 before substitution effective 27 October 2009, Information Technology Act, 2000The original exemption concerned liability under the Act, rules and regulations, not criminal defamation under the IPC. The complaint and cognizance preceded substitution. (¶¶ 45, 59, 60, 61, 62, 63, 64, 133, 134, 135, 155)
- Section 79 as substituted in 2009, Information Technology Act, 2000The expanded exemption and its reading down in Shreya Singhal were distinguished from the earlier provision; private notice alone did not establish loss of the later protection. (¶¶ 46, 65, 66, 67, 137, 151, 152)
Held
- The original Section 79 did not bar IPC defamation proceedings. The IT Act contained no corresponding defamation offence displacing the IPC; Sharat Babu’s reasoning concerning electronic obscenity did not require a different conclusion. (¶¶ 59, 60, 61, 62, 63, 64, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 155)
- The appellant’s claimed separation from its parent and denial of intermediary status were disputed factual defences. The service documents did not satisfy the basis for conclusive quashing under Rajiv Thapar, and findings in unfinished civil litigation could not resolve the criminal case. (¶¶ 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 136, 155)
- Publication requires assessment of the facts, including power, right and ability to remove material; refusal may in appropriate circumstances amount to publication, but the requisite intention or knowledge remains essential. Whether the posts were defamatory, statutory exceptions applied or the demand for URLs justified the response was not determined at the quashing stage. (¶¶ 98, 99, 100, 101, 103, 104, 107, 141, 142, 143, 144, 145, 146, 147, 148, 149)
- The High Court’s findings on the alleged refusal to respond were unsustainable. The later Section 79 regime had been read down in Shreya Singhal, and the original provision did not supply IPC immunity in any event. The appellant’s independent contention concerning removal only after a court order was left open. (¶¶ 137, 138, 139, 150, 151, 152, 153, 155, 156)
Result
Appeal disposed of with directions that the Magistrate proceed with the complaint. Intermediary status was left for trial, and the original Section 79 was held not to protect against IPC defamation. The High Court’s findings on the alleged refusal to remove were set aside; other contentions not finally determined remained open. No finding of guilt was made.