Liability of Intermediary u/s. 79 of Information Technology Act.
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 take-down 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?
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 non- availability 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.
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.
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.
Mystery of Law and Justice 