“Visaka Industries Ltd reported a 140.78 per cent increase in its net profit to Rs 14.64 crore for the first quarter ended June 30, 2008, as against Rs 6.08 crore in the corresponding quarter last year.

Visaka Industries manufactures asbestos products that are banned in over 50 countries. The company belongs to senior Congress leader G Venkataswamy’s family. It has opened an asbestos cement plant in Rae Bareli, Uttar Pradesh (parliamentary constituency of Sonia Gandhi) too signalling patronage the asbestos industry enjoys at the highest political level.

Venkataswamy is the former Textiles Minister and is currently Deputy leader of the ruling Indian National Congress in the lower house of parliament.

All forms of asbestos causes incurable but preventable cancer but leaders like Mrs Gandhi and Venkataswamy are least concerned about the death toll due to their profit making.”

Gopal Krishna, the convener of Ban Asbestos Network India, wrote this in 2008 in a blog post titled “Visaka Industries Kills For Profit” -a blog post which has led to a legal battle which will determine the dynamics of internet discourse in India. Gopal Krishna is an active campaigner against the use of asbestos and had founded the Ban Asbestos Network of India (BANI) in 2002.

In a series of blog posts in 2008-09, Krishna took potshots at several political bigwigs such as Jairam Ramesh and Ghulam Nabi Azad, accusing them of favouritism and of supporting the country’s asbestos industry.While our politicians chose not to react, Visaka Industries – one of the biggest asbestos companies in the country – didn’t take too kindly to Krishna’s not-so-subtleallegations. They filed a private complaint of defamation against Krishna with the metropolitan magistrate of Secundarabad. However, what set this case apart from the hundreds of other defamation suits lying in the courts of an extremely sensitive country was the other respondent in the case – Google India.

The blog – www.banasbestosindia.blogspot.in – on which Krishna had posted his scathing articles is hosted on Google’s free blog-publishing service, Blogger. Visaka Industries, in their petition to the metropolitan magistrate, contended that as an intermediary Google should also be liable for failing to remove defamatory content that has been brought to their notice.

When the metropolitan magistrate summoned Google for a hearing, it approached the Andhra Pradesh High Court asking that all criminal charges against them be quashed under Section 482 of the Criminal Records Procedure Code. Google’s petition to the court claimed that “actions of intermediaries such as Google Inc., which is a service provider providing platform for end users to upload content, does not amount to publication in law and consequently the question of holding such intermediaries liable for defamation does not arise”.

The court, however, saw no merit in Google’s claim and ruled against it. It evoked Section 77 of the IT Act and ordered, “In case found guilty, the petitioner company can be awarded with appropriate punishment”.

Section 77 of the Indian IT Act states that

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hasted by him.

(2) The provisions of sub-section (1) shall apply if—

 (a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or

 (b) the intermediary does not—

 (i) initiate the transmission(ii) select the receiver of the transmission, an(iii) select or modify the information contained in the transmission;

 (c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

(3) The provisions of sub-section (1) shall not apply if—

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or authorise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Cyber law experts differ over the correctness of the Andhra High Court’s judgment. According to Prabir Purkayastha of the Delhi Science Forum, “Often international heavyweights like Google are not comfortable with adhering to country-specific laws but in this case the court seems to have got it wrong”. Purkayastha contended that Google’s role in this case is of an intermediary – much like a newspaper hawker. “You can’t hold a newspaper hawker liable for news that you don’t like, but it’s much easier to go after an organised platform like Google”. Lawyer Pawan Duggal who specialises in cyber law, however, said that the court just interpreted the law as it is. “Whether the law is flawed, that’s a completely different story altogether ”. He added that the judgment of the Supreme Court would be a landmark one with deep ramifications. “It’ll go a long way in shaping the rules of the online space in the country.”

 As Duggal pointed out, the Andhra High Court seems to have evoked the second clause of sub-section (3) of theAct which holds intermediaries liable when the intermediary fails to act despite “receiving actual knowledge, or on being notified by the appropriate Government or its agency”.

What is not clear is whether Visaka Industries ever approached the Cyber Law Division of the police before pressing legal charges against Google.

When we contacted the corporate office of Visaka Industries, we got no specific answers. “Our multiple requests with Google to remove what was very explicitly defamatory content fell on deaf ears and we were compelled to take legal action against them along with the author”, a senior legal manager with Visaka Industries told Newslaundry.

Google and an attorney representing Google in the case refused to comment citing “company policy”.

Gopal Krishna told us that he still stands by what he wrote, although he admits he is not clear what the present legal status of the case is. “Scientists and doctors across the world unanimously agree that asbestos is a dangerous carcinogen. Most countries have banned the usage of asbestos but the industry here continues to grow because of political patronage”, said Krishna.  Krishna also told Newslaundry that Visaka Industries’ political connections have always been in the public domain and he only pointed them out.

Another spokesperson of Visaka Industries contested this claim. He said that the company was not indulging in anything illegal since the trade of asbestos is legal in India. He accused Krishna of making “loose allegations without any evidence” – accusations that could do much harm to the company’s reputation.

The case is currently pending in the Supreme Court, which Google India had approached after the Andhra High Court rejected its petition. Ever since the case was admitted to the apex court in 2011, there have been as many as nine hearings but hardly any substantial progress. The last hearing was scheduled a week ago on January 27, 2014 but got adjourned, like in most of the other eight occasions. With the current discourse on the misuse of the IT Act, the judgment in this case is bound to set a precedent for similar instances such as this.