WhatsApp Group Administrator is not vicariously liable for member’s offensive messages unless common intention is displayed: Bombay High Court

The administrator of a WhatsApp group shall not be held liable for the messages and posts put up by the members of the group in the group chat despite it being objectionable and offensive. A division bench of Justice Z.A. Haq and Justice Amit. B. Borkar while adjudicating the matter in Kishore v. State of Maharashtra & Anr [CRIMINAL APPLICATION (APL) NO. 573 OF 2016] dealt with the criminal liability of a WhatsApp group administrator and whether his action or inaction against offensive messages may be considered as a form of abetment or not.

An FIR report was registered against an accused who was the WhatsApp group administrator of a group chat, on the ground that one of the members of the group made filthy sexually coloured remarks against the complainant and no action such as removing the member from the group had been taken by the accused against the member. Upon receiving the FIR, the investigating agency initiated the investigation and recorded statements of various witnesses. After winding up the investigation, the agency seized the mobile phones of the accused as well as the member who posted the offensive message.

The Court, in deciding the liability of the accused took into consideration various factors involving the instant messaging platform WhatsApp. It expressed that the group administrator is an individual who creates and maintains the group by adding or deleting members and he has limited power in controlling the functioning of what members post in the group. He cannot regulate, moderate or censor the content that is posted on the group. Due to the absence of a specific penal provision, vicarious liability cannot be imposed on the administrator of a WhatsApp group. Further, he cannot be expected to presume or have advance knowledge of criminal acts of members of the group. On the issue of abetment, Court held that upon considering the material and looking into the results of the investigation, there were no facts that could substantially prove that the accused was conspicuously involved in making those sexually coloured comments.

The Bench hence sounded the judgment that “On careful consideration of the allegations in the First Information Report and material produced in the form of charge sheet, we find that 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 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.”

Click here to read the judgment.

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