'No criminal liability can be fastened on Google India'

Google India, which along with 20 websites is facing criminal case for allegedly hosting objectionable materials, on Monday told the Delhi High Court that blocking them was not an option as democratic India does not a "totalitarian" regime like China.

"The issue relates to a constitutional issue of freedom of speech and expression and suppressing it was not possible as the right to freedom of speech in democratic India separates us from a totalitarian regime like China," advocate NK Kaul, appearing for Google India, told Justice Suresh Kait.

During last hearing, Justice Kait had warned Google India and social networking site Facebook India that websites can be "blocked" like in China if they fail to devise a mechanism to check and remove objectionable material from their web pages.

Responding to the court's remark, Kaul referred to media reports on the issue saying "they (reports) suggest the existance of the right (freedom of speech)."

Initiating arguments, Kaul said internet is a global system which has billions of users that also included companies, private persons and the governments and their departments.

He filed a representation in the court and said an online search for a word like "virgin" has 82.30 crore search results within 0.33 seconds and the idea of blocking a word like this would deprive net-users the required information.

"The queries could relate to Virgin Airlines or for that matter 'virgin areas for inventions', he said.

Seeking quashing of the summons issued against the firm by a lower court, he said Google India is neither a search engine nor a web hosting site and was a distinct legal entity from its US-based holding company Google Inc, a search engine.

"No criminal liability can be fastened on Google India," he said.

The counsel for the website sought to distinguish between Google India and its US-based holding company Google Inc.

Google Inc is a service provider and not Google India and hence, it (Google India) cannot be held accountable for any alleged offence committed by its holding company, he said.

Even Google Inc cannot be held accountable for the acts of third parties who simply used the websites for posting or publishing "obscene or objectionable" material, Kaul said and gave illustrations as to how search engines act.

"Search engines like Google Inc do not and cannot control the websites to which users are trasnported to by them. The contents belong to the websites to which the users have visited and not to the search engines," he said.

"I (Google Inc) have nothing to do with the websites and their (offending) content to which the users are being transported to. Because it is the third parties (websites) which are responsible for the contents," he said.

The issuance of summons to Google India reflected lack of understanding on the part of trial judge as to how the system (internet) functions, he said.

"It's not the case of anybody that the alleged content was good or bad. Of course, they were terrible but there are practical difficulties (in checking them). The persons responsible for all the contents have not been made parties.

"We are seeking to prosecute the websites which have done a great service to the world. This problem has arisen world wide in various forms and it is not that we in India are faced with such problems," he said.

However, Vinay Rai, who had filed the complaint against 21 websites, opposed the plea of Google India.

"Google India, like its holding firm Google Inc, is also a search engine and in fact, they are same as out of 1,91, 295 shares of Google India, 1,91, 294 shares are being held by its holding company," the counsel for Rai said.

The counsel for Rai also referred to the Memorandum of Association (MoA), annual returns and the directors' report of Google India to drive home his allegations that Indian and its US-based holding firms were the same.

If the corporate veil is lifted, then it would become clear that they were the same and equally culpable, he said adding the veil could be lifted for a public cause, he said.

Google India is culpable because it is earning for its US-based holding company, he added.

The Memorandum of Association of Google India has listed the function of a search engine as one of its objects and the plea that it was not a search engine was "untenable", he said.

"The holding company (Google Inc) has got a pervasive control on its subsidiary Google India," he said.

Advocate Siddharth Luthra, appearing for Facebook India, questioned the authencity of the documents, including CDs, provided by the complainant to the court.

"The CDs, which have not been authenticated, cannot be used as evidence. The electronic records have to meet the legal requirements for being treated as evidence," he said and cited the apex court judgment in the Tehelka expose case.

The lower court, while issuing summons to it and others, had erred by not taking an opinion from an expert body regarding genuineness of the CDs.

The court would resume hearing in the case on January 19.

Earlier, the Centre had filed a report in the lower court saying there was sufficient material to proceed against 21 websites, including Facebook, Google, Yahoo and Microsoft, for alleged offences of promoting enmity between classes and causing prejudice to national integration.