The Nagpur bench of the Bombay High Court has held that in absence of a common intention, a WhatsApp group admin cannot be held liable for objectionable content posted by a group member.
Observations by the Court
It was observed by the Court that by just being an administrator of WhatsApp group, one cannot ascertain ‘common intention’ as the group administrator cannot regulate content before it is posted in the group.
Justices ZA Haq and MA Borkar stated that “A group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content, unless it is shown that there was common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a WhatsApp group and the administrator. Common intention cannot be established in a case of WhatsApp service user merely acting as a group administrator.”
The Bench accordingly passed an order quashing the instant FIR and charge sheet.
Backdrop of the Case
A WhatsApp group administrator was accused under sections 354-A(1)(iv) (making sexually colored remarks), 509 (Word, gesture or act intended to insult the modesty of a woman), 107 (Abetment of a thing) of the IPC and section 67 of the IT Act. The penal provisions were pressed against the administrator for showing his helplessness in acting against a group member who had made objectionable remarks against a female member,
Arguments raised against the WhatsApp group admin
It was expressed by the petitioner woman that the WhatsApp group administrator had not taken any action against a member who had used filthy language against her and had neither removed nor deleted the accused from the WhatsApp group.
The petitioner also argued that the admin had expressed his helplessness to act when she asked the accused to submit an apology to her.
The Court mentioned that section 354-A(1)(iv) does not imply vicarious liability, nor could it be said that the legislature intended to introduce vicarious liability by necessary implication.
The bench also observed that, “In our opinion, in the facts of the present case, non-removal of a member by administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by the administrator.”
The bench also noted that there is no provision in the Criminal law for holding a WhatsApp group admin vicariously liable, but the members of these groups can be held liable for their posts.
“The Administrator of the WhatsApp group does not have the power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the WhatsApp group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law. In the absence of a specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group.”
The Bench also mentioned that only limited powers of adding and removing a person from the group have been given to the WhatsApp Group Administrator.
“Every chat group has one or more group administrators, who control the participation of members of the group by deleting or adding members of the group. A group administrator has limited power of removing a member of the group or adding other members of the group. Once the group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding or deleting members to the group.”
The petitioner was represented by Advocate Rajendra Daga while the State was represented by Additional Public Prosecutor TA Mirza.
Read the Bombay HC order here: