Digital empowerment has empowered many young generations. And the way youths are adapting to the changing digital technology is amazing. It appears as if they are leading a digital life. Facebook, Instagram, Whatsapp et al have become an inseparable part of the youth these days.
These social media applications have proved their relevance in rapid decimation of information. When it comes to exchanging information, Whatsapp is one of the most popular applications that the young generation are heavily banking upon. One of the unique features of Whatsapp isthe option of creating groups.
In these Whatsapp groups, all members are free to post their views. The person who creates the group is called the administrator (admin) and has the ability to make other members as group admin. Whatsapp also allows the admin to either add or remove any member from the group, as well as remove objectionable content.
Because of the rapid popularity of this android application, many issues have propped up regarding its usage, often leading to legal consequences. In a situation when a member of a Whatsapp group puts objectionable content and the group admin does not take any action against it, then who is liable? Can the admin be made vicariously liable for an offensive content that was shared by a group member?
Recently, the Nagpur Bench of the Bombay High Court, while dealing with this contention, absolved the Whatsapp group admin from criminal liability. It was a case where a complaint was filed in the Gondia district under FIR No. 36 of 2016. The complainant had filed the complaint against Whatsapp group admin Mr Kishore, a resident of the Gondia district.
The charge-sheet filed against the Whatsapp admin invoked offences punishable under Section 354-A(1)(iv), 509 and 107 of the Indian Penal Code, Section 67 in the Information Technology Act, 2000, and proceedings bearing Regular Criminal Case No.177 of 2016.
The case was filed against the Whatsapp admin on the grounds that accused had used filthy language against the complainant. The grievance of the complainant was that neither the group admin removed person who posted against the complainant from the Whatsapp group nor asked him to submit apology to the complainant. In such a situation, FIR No 36 of 2016 was registered against the group admin and after the completion of investigation, the charge-sheet was filed before Judicial Magistrate First Class, Arjuni-Morgaon in the afore mentioned proceeding.
Being aggrieved of the charges, the aforementioned group admin filed a petition under Section 482 of the Code of Criminal Procedure, which was numbered as Criminal Application (Apl) 573 of 2016 . The matter was heard by ZA Haq And Amit B Borkar, JJ, Division Bench, Nagpur Bench, Bombay High Court. The title of the case was Mr Kishore Vs The State of Maharashtra and another. This judgment of the case only came out very recently, on March 1, 2021.
The Court decided on whether the administrator of a Whatsapp group can be held criminally liable for sharing of an objectionable post by its member for committing 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.
The Hon’ble Court first discussed the nature of the Whatsapp group. It observed: “A chat group is a feature on Whatsapp that allows joint participation of members of the chat group. Group administrators, as they are generally called, are the ones who create the group by adding or deleting the members to the same.”
Now, for the function of the Whatsapp group administrator, the Court observed: “Every chat group has one or more group administrators who control the participation of members of the group by deleting or adding members of the group. 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.”
While dealing with the rights of the Whatsapp group admin, the Court was not oblivious of the limitations of the admin. The Hon’ble Division Bench observed as under:
“The 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 a person can be held liable under relevant provisions of the law. In the absence of 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.”
The Hon’ble High Court laid down certain pre-conditions for the making a Whatsapp group administrator to be vicariously liable for any objectionable contents posted by a member in a group. This condition is: “Unless it is shown that there was a 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. When a person creates a Whatsapp group, he cannot be expected to presume or have advance knowledge of the criminal acts of the member of the group.”
After observing this, the Hon’ble Court quashed FIR Report No 36 of 2016 as it did not find any active role of the Whatsapp administrator in the posting of the given objectionable content.
Thus, a Whatsapp group administrator cannot be held liable for any objectionable content posted by any of the members, until and unless it can be proved that the admin had a pre-arranged plan in connivance with any other member in putting the objectionable content. This judgment has come as a great relief to all Whatsapp admins who were under the scanner of law for the circulation of objectionable contents on their Whatsapp groups.