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Intermediary Liability: SC says Intermediaries not Protected under Section 79 of IT Act

December 27, 2019

By Priya Adlakha and Tulip De

The Hon’ble Supreme Court vide its judgement dated December 10, 2019, has clarified the position of intermediaries under Section 79 of the Information Technology Act, 2000 (hereinafter referred to as ‘Act’) prior to its amendment. The Hon’ble Supreme Court addressed the aforesaid issue in the matter of Google India Pvt. Ltd. v. Vishakha Industries and anr.[1]

As per Section 79 of the Act which states the exemption of liability for intermediaries under certain instances. An intermediary shall not be liable for any third party information or data made available by it or hosted by it. Intermediaries can be online platforms (like Google in this case) that facilitate information.

The Act extends “safe harbor protection” only to those instances where the intermediary merely acts a facilitator and is not involved in creation or modification of the data or information.[2]

Prior to the amendment, in the Act in 2009, the protection to intermediaries was applicable only for the provisions of the Act. It was only after the aforesaid amendment that an umbrella protection was provided to the intermediaries. The present case relates to the position of intermediaries before the amendment when they were not to be made liable only under the Act and the exemption of liability did not extend to other Acts.

Brief Facts –

  • Vishakha Industries (hereinafter referred to as ‘company’) was engaged in the manufacture of asbestos. In the year 2009, the company filed a criminal defamation case against an individual who was publishing articles under the name ‘Ban Asbestos’ in a group.
  • Google was involved in hosting the group by way of Google Group services provided by it and was made a party to the defamation case. The company alleged that Google failed to take down the article even after multiple requests of the company.
  • Thereafter, Google approached the High Court of Andhra Pradesh to quash the complaint against it as it was an intermediary under Section 79 of the Act and was not liable for the publications made in the group.
  • The Hon’ble High Court rejected the plea of Google, stating that being an intermediary, it failed to take an action to bring down the defamatory posts. Therefore, it could not claim exemption under Section 79 of the Act.
  • Google subsequently filed an appeal before the Hon’ble Supreme Court.

Observations by the Supreme Court –

  • The Hon’ble Supreme Court stated that the matter had to be decided in accordance with the provisions applicable prior to the amendment made.
  • Additionally, the Hon’ble Court explained the inapplicability of the exception of ‘actual knowledge’. As per Section 79 (3) (b) of the Act, the exemption of intermediaries from liability could be waived if such intermediary even upon receiving ‘actual knowledge’ of the content being unlawful, did not take it down.
  • To reinstate the above, the Hon’ble Court referred to the definition of ‘actual knowledge’ given in the Shreya Singhal case[3]. In the aforementioned case, ‘actual knowledge’ was to mean an order from the court or competent authority.
  • The Hon’ble Court finally held prior to its substitution, Section 79 did not provide protection to intermediaries. Hence, Google, as an intermediary, cannot be exempted from the liability arising out of defamation.
  • Consequently, the Hon’ble Court rejected Google’s plea claiming immunity from liability as intermediary. Accordingly in the present case, Google will undergo trial in the above criminal defamation case.

Conclusion –

After the amendment in Section 79 of the Act, intermediaries are provided a comprehensive protection to any liability arising from publications or information made available by it. The purpose to provide exemption of liability helps the intermediary to operate without any intervention. However, in the above case, Google could not get any exemption from liability as the defamation case was made before the amendment when exemption extended only for the provisions under the Act. The above case clears the air upon the position of intermediaries prior to the amendment of Section 79 of the Act.

Related Posts

Intermediaries under the Information Technology Act, 2000 in India

Online Copyright Infringement and Its liability Upon Intermediary in India

Regulation of Intermediaries under Information Technology Act, 2000

India: Intermediary’s Liability for Infringing Content

[1] Cr. Appeal No. 1987 of 2014

[2] https://www.rna-cs.com/liability-of-intermediaries-under-information-technology-act-2000/

[3] Writ Petition (Criminal) No. 167 of 2012.

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