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WhatsApp group admin can’t be held liable for member’s post unless common intention shown: Bombay HC

It said, “When a person creates a WhatsApp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group.”

Written by Omkar Gokhale | Mumbai |
April 25, 2021 6:57:26 pm
The bench added that “common intention” cannot be established in case the user is “merely acting as a group admin”.

The Nagpur bench of the Bombay High Court recently held that a WhatsApp group administrator cannot be held liable for objectionable content posted by a member of the group, unless it is shown that there was a “common intention” or “pre-arranged plan” to act in concert between the two.

Observing this, the court quashed and set aside an FIR registered in July 2016 against a 33-year-old man, an administrator of a WhatsApp group, along with the chargesheet filed before the magistrate in Gondia district for not taking action against a member who used “filthy” and “indecent” language against a woman member in the group.

A division bench of Justice Z A Haq and Justice Amit B Borkar passed the judgment last month on a criminal application by one Kishor Chintaman Tarone (33), through advocate Rajendra M Daga, challenging the FIR and chargesheet registered against him at Arjuni-Morgaon police station and sought to set aside the same.

After perusing functioning of the WhatsApp messaging service, the bench made observations on the role of an admin: “Once the group is created, 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. The administrator does not have power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law.”

Commenting on a criminal liability of a group admin for members’ posts, the bench held, “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, unless it is shown that there was common intention or pre-arranged plan acting in concert pursuant to such plan by the member and the administrator.”

The bench added that “common intention” cannot be established in case the user is “merely acting as a group admin”. It said, “When a person creates a WhatsApp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group.”

Justice Borkar, who authored the judgement for the bench, observed, “In our opinion, in the facts of present case, 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.”

Setting aside the FIR and chargesheet, the bench held, “Taking an overall view of the matter, we are satisfied that even if allegations in the FIR are accepted as correct, and considering the material in the form of charge-sheet on its face value, it does not disclose essential ingredients of offences alleged against the applicant. We are therefore satisfied that continuation of present proceedings against the applicant would amount to abuse of process of Court.”

 

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