SUMMARY
In the absence of a special penal law creating vicarious liability, an admin of a WhatsApp group cannot be held liable for the objectionable post by a group member: Kerala HC
A WhatsApp Admin cannot be an intermediary under the IT Act. He does not receive or transmit any record or provide any service with respect to such record: HC
Case pertains to a WhatsApp group called 'FRIENDS' where one of the members allegedly posted child pronoraphy on it
The Kerala High Court (HC) has now ruled that the administrators of a WhatsApp group chat cannot be held liable for any objectionable content posted on the group by any of its members.
The order came in a petition seeking action against WhatsApp group admins under the Protection of Children from Sexual Offence (POCSO) Act. The case was filed against the admins of a WhatsApp group chat, where one group member had allegedly posted child pornography.
In his observation, Justice Kauser Edappagath noted, “A vicarious criminal liability can be fastened only by reason of a provision of a statute and not otherwise. In the absence of a special penal law creating vicarious liability, an admin of a WhatsApp group cannot be held liable for the objectionable post by a group member.”
What Was The WhatsApp Case In Kerala?
The matter pertains to a WhatsApp group called ‘FRIENDS’ where the petitioner had made two other persons as admins. The plea claims that one of these persons had posted a video depicting children engaged in a sexually explicit act, on the group.
As a result, the local police lodged a case against the person that had posted the video under various provisions of the Information Technology Act and the POCSO Act.
Ruling further on the matter, the Justice said, “He (the admin) does not have physical or any control otherwise over what a member of a group is posting thereon. He cannot moderate or censor messages in a group. Thus, the creator or administrator of a WhatsApp group, merely acting in that capacity, cannot be vicariously held liable for any objectionable content posted by a member of the group.”
The petitioner was also named in the final police report and was declared as an offender in the case. But he had moved the HC seeking quashing of proceedings against him citing that, prima-facie, it did not appear that he had committed any offence.
Agreeing with the contention, the HC said, “There is nothing on record to suggest that the petitioner has published or transmitted or caused to be published or transmitted in any electronic form the alleged obscene material or he browsed or downloaded the said material or, in any way, facilitated abusing children online.”
The HC also added that, “The prosecution has no case that the petitioner used children in any form of media for his sexual gratification or used them for pornographic purpose or stored, for commercial purpose, any child pornographic material.”
WhatsApp Admins Are Not Intermediaries: Kerala HC
The court also said that there was no law by which an admin of any messaging service can be held liable for a post made by a member of a group.
Specifying the contours of the IT Act, the HC also said that, “A WhatsApp Admin cannot be an intermediary under the IT Act. He does not receive or transmit any record or provide any service with respect to such record.”
Noting that ‘the basic ingredients of the offences alleged are altogether absent’, the Kerala High Court quashed the entire proceedings against the petitioner.
This adds to a long list of judgements that specifically add weight to this argument. In December last year, the Madurai bench of the Madras High Court had held that a WhatsApp group administrator could not be made liable for offensive content posted by the members of the group.
Prior to that in April 2021, the Nagpur bench of the Bombay HC headed by Justice ZA Haq and AB Borkar had also noted the same while quashing a similar case.
Interestingly, back in 2017, Varanasi’s then District Magistrate and Senior Superintendent of Police had issued an order that sought to make group admins liable for any ‘factually incorrect, rumour or misleading information‘ on social media groups.
The Kerala HC judgement could set a precedent for all such upcoming cases in the country. Authorities should also take cue from the ruling to ensure that ordinary citizens of the country are not hassled over matters that have already been ruled on by Indian courts.
