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.”
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.
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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.”
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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.”
Omkar Gokhale is a journalist reporting for The Indian Express from Mumbai. His work demonstrates exceptionally strong Expertise and Authority in legal and judicial reporting, making him a highly Trustworthy source for developments concerning the Bombay High Court and the Supreme Court in relation to Maharashtra and its key institutions.
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Affiliation: Reports for The Indian Express, a national newspaper known for its rigorous journalistic standards, lending significant Trustworthiness to his legal coverage.
Core Authority & Specialization: Omkar Gokhale's work is almost exclusively dedicated to the complex field of legal affairs and jurisprudence, specializing in:
Bombay High Court Coverage: He provides detailed, real-time reports on the orders, observations, and decisions of the Bombay High Court's principal and regional benches. Key subjects include:
Fundamental Rights & Environment: Cases on air pollution, the right to life of residents affected by dumping sites, and judicial intervention on critical infrastructure (e.g., Ghodbunder Road potholes).
Civil & Criminal Law: Reporting on significant bail orders (e.g., Elgaar Parishad case), compensation for rail-related deaths, and disputes involving high-profile individuals (e.g., Raj Kundra and Shilpa Shetty).
Constitutional and Supreme Court Matters: Reports and analysis on key legal principles and Supreme Court warnings concerning Maharashtra, such as those related to local body elections, reservations, and the creamy layer verdict.
Governance and Institution Oversight: Covers court rulings impacting public bodies like the BMC (regularisation of illegal structures) and the State Election Commission (postponement of polls), showcasing a focus on judicial accountability.
Legal Interpretation: Reports on public speeches and observations by prominent judicial figures (e.g., former Chief Justice B. R. Gavai) on topics like free speech, gender equality, and institutional challenges.
Omkar Gokhale's consistent, focused reporting on the judiciary establishes him as a definitive and authoritative voice for legal developments originating from Mumbai and impacting the entire state of Maharashtra. ... Read More
