Liability of a Whatsapp Group Administrator: Bombay High Court Ruling in Kishor v. State Of Maharashtra & Anr.

Case Highlights[1]:

· A WhatsApp (“WA”) group administrator (“admin”) is not accountable for objectionable content posted by other members of the WA group (that he/she is an admin of), unless there is a common intention or a ‘pre-arranged plan’ to act in concert between them.

· A WA group admin has limited functions – i.e., adding and removing members from a WA group.

· A WA group admin cannot be expected to have advance knowledge of any criminal acts of the member(s) of the WA group.

Background:

The Nagpur Bench of the Bombay High Court (“Court”) examined the role of a WA group admin in criminal offences perpetrated by the another member of the WA group. The Applicant filed an application under Section 482 of the Code of Criminal Procedure, 1973 to quash a charge sheet filed pursuant to a First Information Report (“FIR”) filed against him, for offences punishable under Sections 354-A(1)(iv) [Sexual Harassment and Punishment for Sexual Harassment], 107 (Abetment) and 509 (Intentionally Insulting the Modesty of a Woman) of the Indian Penal Code, 1860 (“IPC”) and Section 67 (Publication of Obscene Content) of the Information Technology Act, 2000 (“IT Act”).

The FIR, inter alia, accused the Applicant (who was the admin of a WA group) of criminal conduct by refusing to remove or delete another individual (who was a member of the same WA group) after the individual in question used “filthy language” against the complainant. (para. 4).

The Court’s Ruling:

The Court makes the following findings on the role of a WA group admin (para. 8):

1. “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 the power of adding or deleting members to the group.”

2. “The Administrator of a Whatsapp group does not have power to regulate, moderate or censor the content before it is posted on the group.”

3. “…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.”

4. “A group administrator cannot be held vicariously liable for an act of 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.”

5. “When a person creates a Whatsapp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group.”

Thereafter, the Court examined the culpability of the Applicant against each of the offences named in the FIR. The Court reached the following conclusions:

1. There are no facts in the FIR to establish that the Applicant has made statements which attract the offence under Section 354-A(1)(iv) and Section 507 of the IPC [para. 9 and para 11].

2. There are also no facts to demonstrate that the Applicant, by intentionally act / omission, abetted the other accused (i.e., the members of the group who posted actionable content) in the FIR under Section 107 of the IPC [para. 10].

3. The administrator of a WA group cannot be equated to an intermediary under Section 2 (1) (w) the IT Act, as a WA group administrator does not publish or transmit content [para. 12]. Therefore, the Applicant cannot be liable under Section 67 of the IT Act for transmitting or publishing obscene content [para. 12].

With these findings, the Court quashed the FIR and absolved the Applicant of criminal liability.

Prior positions on group administrators:

In the past, we have seen a few district administration(s) issue notices which placed the liability on the group admin for any irresponsible remarks or details made by any member in those groups. We have also seen some arrests of admins of group(s) on which objectionable messages were sent (despite the admin not being the creator of the at-issue content). In fact, in 2020, to curb the spread of fake news, misinformation and hate speech during the COVID-19 pandemic, the office of Special Inspector of police Maharashtra Cyber issued an advisory, inter-alia, imposing onerous obligations on an admin, i.e. of actively and regularly monitoring content being shared on the group and ensuring that every member of the group is reliable and responsible enough to share only verified news.

Taking another view, the High Court of Delhi in Ashish Bhalla v. Suresh Chawdhary (Order dated November 29, 2016 in CS(OS) 188 of 2016) held that a WA group admin cannot be held responsible for statements made by other persons which were posted on the group. The Delhi High court went on to say that “it is not as if without the Administrator’ s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform.”

Conclusion:

The Court has rightly held that the admins of WhatsApp groups cannot be held criminally accountable for any objectionable post by other members of the group. It is Court’s view that a group admins do not have any additional burden or duty to demonstrate care insofar as the content posted on the group by other members is concerned.

The judgment is a silver lining for many group admins in positions similar to that of the Applicant in the instant case. This decision is a positive outcome which reinforces the idea that WA group admins cannot be considered an intermediary under the IT Act and there cannot be a case of secondary liability against them. What remains to be examined is whether other courts view the ability of a group admin to add or remove participants as exercising editorial control (albeit indirectly).

Authors:

Richa Srivastava, Counsel
Durga Priya Manda, Senior Associate

Footnote:

[1] Judgment dated March 1, 2021 in Criminal Application (Apl.) No. 573 of 2016 before the High Court of Bombay (Nagpur Bench)

Date: May 10, 2021