A group administrator cannot be held liable for an act of member who posts objectionable content, unless there is a common intention or pre-arranged plan: Bombay High Court
A group administrator cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group. 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. Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator. This remarkable judgment was passed by the Bombay High Court in the matter of KISHOR CHINTAMAN TARONE V THE STATE OF MAHARASHTRA [CRIMINAL APPLICATION NO. 573 OF 2016] by Honourable Justice Amit B. Borkar and Justice Z.A.Haq.
Through this application preferred under section 482 of the Code of Criminal Procedure, the applicant challenged the charge-sheet filed in the Court of Judicial Magistrate First Class for offences punishable under sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000.
As per the FIR, the applicant was an administrator of a WhatsApp group, and the accused No.1 used filthy language against the non-applicant No.2 on the said WhatsApp group. It was contended that irrespective of such behavior applicant had not taken any action against the accused No.1. Also, it was alleged that the applicant being the administrator had not removed nor deleted accused No.1 from the WhatsApp group nor demanded any apology and merely expressed his helplessness.
The HC before ascertaining liability evaluated the functioning of the app and expressed that 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.
“Administrator of a WhatsApp group does not have 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.”
Also, in the absence of any 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. “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 the 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.”
“A group administrator cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group. Also, the language of section 354-A(1)(iv) of the Indian Penal Code does not introduce vicarious liability, nor could it be said that the Legislature intended to introduce vicarious liability by necessary implication. 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 administrator.”
The court found that essential ingredients of Section 107 of IPC that the applicant had instigated or intentionally aided by his act or illegal omission to accused 1 to make sexually coloured remarks against non-applicant 2 were conspicuously absent. Hence the said Section will not be attracted in the present case. Also, there is no allegation or material that the applicant had either published, transmitted or caused to be published or transmitted in electronic form any material, which is lascivious or appeals to a prurient interest or its effect is such as to tend to deprave and corrupt persons who are likely, to read, see or hear the matter contained or embodied in it.
Additionally, it is true that even if the allegations were true it does not disclose essential ingredients of offences alleged against the applicant under sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000.
Thus, Bombay HC quashed and set aside the proceedings since the continuation of the present proceedings against the applicant would amount to an abuse of process of Court.