Indian Kanoon - Search engine for Indian Law

11. We heard Shri Sajan Poovayya, learned senior counsel appearing on behalf of the appellant, Shri Sridhar Potaraju the learned Counsel for the complainant/first respondent-M/s. Visakha Industries and Ms. Madhavi Divan, learned Additional Solicitor General appearing on behalf of the respondents.

12. Shri Sajan Poovayya would contend that services on google groups is not provided by the appellant. In other words, the basis of the complainant that appellant is the intermediary, is completely erroneous. The legal notice sent by the complainant, did not make reference to any specific URL. The expansion of URL is Unique Reference Locator which is the address of the content on web to identify or locate the objectionable post. Therefore, the notice was invalid. The appellant, however, as a gesture, made over the said notice dated 09.12.2008 to its parent entity, i.e., Google Inc. presently Google LLC. It is Google LLC which owns the Google Group platforms. Google LLC replied to the legal notice and requested the complainant to provide specific URLs. It is without responding to the same that the complaint came to be filed. It is contended that the complaint proceeds on a mistaken premise that the appellant hosts and provides services on Google Groups. A further fallacious basis is that the intermediary and hosting service provider is expected to monitor and pre-censor publication of content on its platform. Error is alleged to underlie the assumption that hosting of services involves the fact that the intermediary host has knowledge of the content posted on a hosting platform. An independent publication by an author of any content by itself again demonstrates absence of any connivance between the author and the intermediary host. There is no case for the complainant that the appellant is the author or publisher of the allegedly defamatory articles. On the other hand, the complaint itself proceeds on the basis that it is the first accused who is the author of the articles.

13. The appellant lay store by the parallel civil proceedings between the parties. Following the legal notice issue to the appellant and to Google LLC on 21.01.2009, a civil suit was instituted against the first accused, Google LLC and the appellant.

14. The suit filed by the complainant came to be dismissed by judgment dated 17.02.2014. The complainant succeeded in the first appeal and the court decreed the suit on 29.01.2016. The appellants preferred a second appeal. The appeal came to be allowed by the High Court on 18.01.2016 by which the suit came to be dismissed against the appellant which was the second defendant. It is pointed out that the appellant has filed a review confined in nature against the same. The complainant has also filed a review.

15. Google LLC is a company incorporated under the laws of United States of America. Google LLC owns and operates the Google Groups Platforms. The appellant is the subsidiary of the Google LLC Group. Appellant has its own separate legal identity. The High Court has ignored that control over the Google Group platform was of Google LLC.

16. The learned senior counsel for the appellant drew our attention to the primary terms upon which service is rendered by Google LLC. An agreement is contemplated between a user and Google LLC. Appellant is a company registered under the Indian Companies Act having its office at Bangalore. Appellant is appointed as a non- exclusive reseller of Google LLC Ads program in India on a principal to principal basis. The appellant is engaged in business development and promotional activity for certain limited products and does not play any role in providing or administering services as regards Google Groups. It is contended that appellant is not an agent of Google LLC and it enjoys autonomy in its functions.

72. According to the appellant, this is a case where the High Court erred in not considering and answering the question as to whether the appellant is an intermediary or not. It is the case of the appellant that the appellant is only the subsidiary of Google LLC which is its parent company. It is his further submission that the High Court ought to have permitted the appellant to draw support from terms of service regarding Google Groups which convincingly establishes that the services were provided by Google LLC and not the appellant. In this regard, reliance is placed on judgments of this Court in Rajiv Thapar and others v. Madan Lal Kapoor21 and HMT Watches Ltd. v. M.A. Abida and another22. It is contended that Google Groups terms of service is a document of sterling value being of indisputable character. What is produced before us is last update seen dated 10.12.2010. Under the same, there was reference to responsibilities of the originator under the head ‘content’ your responsibilities. It is submitted that the originator, not Google, which will be liable for the content that will be uploaded, posted, disseminated, etc., which is (2013) 3 SCC 330 (2015) 11 SCC 776 collectively said to be posted via the service. Under appropriate conduct, it is stated as follows: