Whether we like it or not, we are all members of numerous WhatsApp groups. Almost all of us are in more groups than we would want. From project groups to groups for every legal work that comes into the office, to the random temporary group that was formed for a quick discussion, to the extended family WhatsApp group.
Now a key concern that emerges for a group admin is whether there are legal ramifications for mismanaging a group or neglecting to regulate/moderate messages/content. Do great responsibilities come with great admin rights?
These are the questions that the Bombay High Court recently addressed in Kishor v. State of Maharashtra. In this case, an application under Section 482 of the Code of Criminal Procedure (CrPC) was filed before the Nagpur Bench of the Bombay High Court challenging the charge sheet that named the applicant as an accused. The applicant was charged for being a WhatsApp admin of a group in which one of the members allegedly used filthy language including sexual coloured remarks against another member of the same group.
The charges levelled against the admin were serious – sexual harassment and punishment for sexual harassment (S. 354-A, IPC); words, gestures or acts intended to outrage the modesty of a woman (S.509, IPC); punishment for publishing or transmitting obscene material in electronic form (S. 67, IT Act) and abetment of a thing (S. 107, IPC). Now according to the Bombay High Court, “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 a common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a WhatsApp group and the administrator. In other words, a WhatsApp admin does not incur liability solely on the ground that she holds such a position within the group. Thus, even if the admin does not remove the member who posted objectionable content on the group, she would still not be liable.
Similarly, while determining a civil defamation case, the Delhi High Court in Ashish Bhalla v. Suresh Chawdhary observed that an admin of a group cannot be held liable. According to the Delhi High Court – “When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor. It is not as if without the Administrator’s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform.”
Another aspect in these cases worth examining is the routine invocation of the provisions of the Information Technology Act, 2000. In this context, the Bombay High Court clarified that an admin, by merely creating a group, does not publish or transmit material over the internet. Thus, the Court distinguished a mere group admin and an intermediary under the Act.
The term “intermediary” refers to any person who, on behalf of another person, receives, stores or transmits any electronic record or provides any service concerning that record. Generally, the admin of a group does not store or receive electronic records on behalf of another. Rather, it is WhatsApp itself which is arguably an intermediary as it acts as a medium between two or more persons
To make a long narrative short, the courts have correctly recognised that the admin of a WhatsApp group has limited authority and his/her tasks are equal to those of any other member in both of these judgements.
According to the courts, the only privilege that an admin enjoys is to add or delete members from the group, apart from creating the group itself. However, in many cases, the current admin may not even be the person who created the group.For instance, Junaid Khan, an admin of a WhatsApp group was arrested and charged with sedition as well as other offences under the IT Act. However, Junaid had not created the group but became the admin by default when the original creator exited. While the judgment of the High Court does not explicitly recognise that many admins may even be inactive members, it is still clear that Bombay High Court’s interpretation of the law must come to the rescue of those like Junaid, who are victims of a negligent police force.
The law as interpreted by the Bombay High Court must equally protect Junaid as well as an active admin who created the group. Unfortunately, issuing excessive threats to administrators through legally dubious advice simply implies that an administrator is more powerful in the eyes of the police than he/she is in the eyes of his/her own members.
Certainly, there are boundaries to what may be spoken on a public stage, and there must be repercussions in some situations. But a narrowly focussed defamation action against the maker of the statement may be enough to address that mischief. It is high time that law enforcement agencies learn from the above decisions and refrain from making an artificial distinction between the members and the admin and initiating frivolous prosecutions.
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