The Bombay High Court pronounced that 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 through the Division Bench of Justices Z.A. Haq and Amit B. Borkar in the case of Kishor v. State of Maharashtra (CRIMINAL APPLICATION (APL) NO. 573 OF 2016)
FACTS OF THE CASE:
The applicant challenged the charge sheet prepared in the Court of Judicial Magistrate in consequence of an FIR made with non-applicant 1 for offences punishable under Sections 354-A(1)(iv), 509, and 107 of the Indian Penal Code, 1860, and Section 67 of the Information Technology Act, 2000.
According to the FIR, the applicant was an administrator of a WhatsApp group, accused 1 used foul language against a non-applicant 2 on a WhatsApp group of which the applicant was an administrator, and despite accused 1 using foul language against non-applicant 2, the applicant failed to act against accused 1.
It was contended that after the group was founded, the administrator’s and members’ functions were equal, with the exception of the ability to add or delete members from the group. The administrator lacks the authority to oversee, filter, or censor information before it is submitted to the group. However, if a member of the WhatsApp group shares any content that is actionable under law, that individual may be held accountable under relevant legal rules.
Furthermore, it was stated that a group administrator cannot be held vicariously liable for an act of a member of the group who posts objectionable material unless it has been demonstrated that such member and the administrator had a common intention or pre-arranged plan and acted in concert furtherance to such plan. According to the FIR, accused 1 made sexually charged statements, and the applicant, as the moderator of the WhatsApp group, did not delete accused 1 from the group or seek an apology from accused 1.
In the Court’s judgement, the administrator of a WhatsApp group failing to remove a member or failing to demand an apology from a member who had written the offending statement would not amount to the administrator making sexually tinged remarks.
The court determined that the applicant had inspired or willfully supported accused 1 in making sexually coloured remarks against non-applicant 2 by his conduct or illegal omission, which were necessary parts of Section 107 of the IPC. As a result, the aforementioned Section will not be applicable in this circumstance.
Section 509 of the IPC criminalizes any statement, gesture, or act “designed” to offend a woman’s modesty. In this case, the aforementioned offence cannot be proven against the applicant since the non-applicant 2’s issue was that accused 1 used filthy language towards the non-applicant 2.
A person must also publish or transmit obscene content in electronic form to commit an offence under Section 67 of the Information Technology Act, 2000. In light of the foregoing, the High Court found no allegation or material that the applicant had published, transmitted, or caused to be published or transmitted in electronic form any material that was lascivious or appealed to prurient interest, or its effect was such that it tended to deprave and corrupt persons who were likely to read, see or hear the matter contained.
Taking the overall picture, the Court was satisfied that even if the allegations in the FIR were accepted as true and the material in the charge sheet was taken at face value, it did not disclose essential elements of the 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.
JUDGEMENT REVIEWED BY REETI SHETTY