Google, Facebook officials exempted from personal appearance in trial court

High court defers hearing till May in view of similar ongoing cases in Supreme Court

By Moyna
Published: Friday 17 February 2012

The Delhi High Court on Thursday refused to stay trial proceedings against Google and Facebook, battling charges of objectionable content on their websites in India. The high court is hearing an appeal by the two web giants against criminal proceedings initiated by a trial court in December on a private complaint. The bench, however, granted temporary relief to Google and Facebook officials by exempting them from appearing in person on the next date of hearing in the trial court on March 13, and said they could be represented by their lawyers. The high court deferred further hearing on the appeal till May.

In December, metropolitan magistrate Sudesh Kumar had issued summons to the top executives of 21 web companies mentioned in the complaint. The summons, naming top web company officials likes Facebook chief executive Mark Zuckerberg, required the officials to appear in person. Google and Facebook have appealed to the Delhi High Court to quash the FIR and criminal proceedings against them.

If the executives appear in person, the trial court is required to admit evidence and statements in the complaint of their having violated the Indian Penal Code, said Niraj Kishan Kaul, counsel for Google. Senior advocate Naveen Sharma, representing Delhi Police, argued in court that the web companies’ executives be made to appear in person. Sharma said: “They must stand in queue of the accused before the trial court magistrate as they are not above law. It appears that these companies believe they can do business in our country and make profits, but not follow the laws of the country.” Lawyers for the web companies countered this argument, saying the case is turning out to be about “persecution” and not “prosecution” of the web companies.

Sharma, while attempting establish the liability of these web companies, brought on record two cases dealing with defamatory, obscene content and corporate liability (Google v Vishakha Industries and Avnish Bajaj case), which are pending in the Supreme Court. For this reason the high court gave a long date and deferred the case till May. “The court is informed that similar issues as the ones currently under debate in this court are pending with the Supreme Court and these may have a bearing on the current case. Thus the matter is deferred till first week of May,” said the single judge bench of Suresh Kait.

The judge refused to stay the trial court proceedings, but said the web company lawyers could appeal in the trial court to wait for the matter to be settled in the high court.

The case so far

A series of cases were filed against 20-odd online giants like Google, Facebook, Microsoft and Yahoo for hosting anti-religious and anti-social content on their websites in two district courts in Delhi in December. These cases came close on the heels of Union IT minister Kapil Sibal’s remarks of the need to censor the Internet.

Counsels for Google and Facebook petitioned the high court in January this year, saying the criminal proceedings ought to be quashed. They gave three reasons for it: discrepancies in the procedure followed, flawed enquiry report submitted by the police and the protection provided under Indian Information Technology Act.

Earlier this month, in response to the civil complaint, Google released a statement stating the objectionable content had been removed. Facebook at the time said it is not liable for the content as the material is controlled by US-based sites.

During the half a dozen hearings in the high court, advocates for the web companies put forward their case. Senior advocate N Hariharan, representing Vinay Rai, the complainant in the criminal case, argued the web companies have violated laws and that they failed to take action against the objectionable content even after being informed.

Similar arguments have been made by Sharma, representing Delhi Police, which submitted the controversial enquiry report to the trial court magistrate.
On February 14, the government of India also intervened in the case, stating the matter was of public interest and the content published on these sites is a threat to national integrity and communal harmony. Additional solicitor general A S Chandiok, representing government of India, submitted a report along with the government order to prosecute the web companies and letters exchanged with Google India.

The letters and government notice say that the content is a threat to India national integrity and harmony. The report specifically mentioned a youtube video on Kashmiri muslims being converted to Christianity, cartoons of political leaders and posts with images of religious and political heads in “obscene” positions and defamatory images of Sikh gurus. 

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