The Kerala High Court on Wednesday (February 23) said admins of WhatsApp groups are not liable for objectionable posts made by group members. The Bench of Justice Kauser Edappagath quashed a chargesheet filed against an admin of a WhatsApp group, who has been arraigned as an accused in a case registered under relevant sections of POCSO Act and IT Act.
What is the case?
Manual, 22, a native of Alappuzha district, created a WhatsApp group by the name FRIENDS. He was the admin of the group. On March 29, 2020, one of the members of the group posted a porn video depicting children engaged in sexually explicit act. On June 15, 2020, the Ernakulam City police registered a case against the person for the offences under Sections 67B (a)(b) and (d) of the Information Technology Act, 2000 and Sections 13, 14 and 15 of the Protection of Children from Sexual Offence Act, 2012.
Later on, the admin Manual was arrayed as the second accused being the creator of the group. Police submitted the final report, which is pending for trial at the Additional Sessions (Cases Relating to Atrocities and Sexual Violence Against Women and Children) Court, Ernakulam. Manual moved the high court challenging the case against him, as he was made an accused merely on his capacity as the admin of the group.
Vicarious liability of admin of WhatsApp group
The court examined whether the admin, the petitioner in the case, has vicarious liability or can be held liable for the act of the social media group member. A vicarious criminal liability can be fixed only by reason of a provision of a statute and not otherwise. In the absence of a special penal law creating vicarious liability, an admin of a WhatsApp group cannot be held liable for the objectionable post by a group member. There is no law by which an admin of any messaging service can be held liable for a post made by a member in the group. A WhatsApp admin cannot be an intermediary under the IT Act. He does not receive or transmit any record or provide any service with respect to such record.
What did the court say about relation between admin and group members?
“There is no master-servant or a principal-agent relationship between the admin of a WhatsApp group and its members. It goes against basic principles of criminal law to hold an admin liable for a post published by someone else in the group. It is the basic principle of criminal jurisprudence that mens rea (the mental element of a person’s intention to commit a crime; or knowledge that one’s action or lack of action would cause a crime to be committed) must be an ingredient of an offence and both the act and intent must concur to constitute a crime. The only privilege enjoyed by the admin of a WhatsApp group over other members is that he can either add or delete any of the members from the group. He does not have physical or any control otherwise over what a member of a group is posting thereon. He cannot moderate or censor messages in a group.”
What is vicarious liability?
Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency; respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility imposed on one person for the wrongful actions of another person. Such a liability arises usually because of some or the other legal relationship between the two. This often occurs in the context of civil law—for example, in employment cases. In a criminal context, vicarious liability assigns guilt, or criminal liability, to a person for wrongful acts committed by someone else.
What similar verdicts say
In Ashish Bhalla v. Suresh Chawdhary & Ors (2016), the Delhi High Court observed that defamation and defamatory statements made by any member of the group cannot make the administrator liable therefore. The Madras High Court (R.Rajendran v. the Inspector of Police, on 15/12/2021), directed the investigating officer to delete the name of the WhatsApp group administrator while filing final report if his role is merely of an administrator and nothing else.
In Kishor Chintaman Tarone v. State of Maharashtra & Another (2021 ICO 1285), the High Court of Bombay dealt with a similar issue in terms of the liability of the admin resulting from an indecent post shared by another member on the WhatsApp group. It was held that ‘a Group Administrator cannot be held vicariously liable for an act of a member of the Group, who posts objectionable content, unless it is shown that there was common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a WhatsApp Group and the Administrator.’
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