Admin of WhatsApp Group Not Vicariously Liable for Objectionable Post by Group Member: Kerala High Court

Team SoOLEGAL 25 Feb 2022 6:28am

Admin of WhatsApp Group Not Vicariously Liable for Objectionable Post by Group Member: Kerala High Court

The Kerala High Court declared on Wednesday in a significant ruling that the admin of WhatsApp group cannot be held vicariously accountable if a member of the group shares undesirable information in the group.

This, according to Justice Kauser Edappagath, is because vicarious liability in criminal law may only be imposed when legislation requires it.

“A vicarious criminal liability can be fastened only by reason of a provision of a statue 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”.

The court further underlined that it is a basic tenet of criminal law that mens rea must be present in order for an offence to be committed, and that both the act and the purpose must be present in order for a crime to be committed.

The petitioner established the ‘FRIENDS’ WhatsApp group. He was the admin since he was the originator. There were two additional admins, one of whom was the first to be charged.

The first accused shared a porn filming portraying youngsters engaging in sexually explicit behaviors in the group in March 2020.

As a result, the first accused was charged with a felony under Section 67B (a), (b), and (d) of the Information Technology Act of 2000, as well as Sections 13, 14 and 15 of the Protection of Children from Sexual Offence Act.

Later, the petitioner was named as the second accused, as the group’s originator and co – admin. Outraged, he filed a petition with the High Court.

Anil Kumar & Associates M. Sivaraman and C. Chandrashekharan represented the petitioner in the case, while Senior Public Prosecutor M.K. Pushpalatha defended the respondents. The court was asked if the founder or administrator of a WhatsApp group may be held criminally accountable for objectionable information uploaded by a group member.

“Whatsapp has proved its relevance in exchange of information very fast. One of the unique features of this application is that it also enables formation of groups of people to chat and call thereon…The person who creates WhatsApp group is called Administrator (Admin) of the group… These Admin/s have certain powers bestowed upon i.e., adding/removing a member etc. Due to lack of moderation of these groups… members of a WhatsApp group may put objectionable contents. The legal consequences and potential liability of the Administrator, stemming from such an objectionable post has come up for consideration.”

The precise question to be resolved under the facts and circumstances of the case was whether the petitioner may be held vicariously accountable for the act of the first accused. The court stated that vicarious responsibility in civil and service cases typically arises as a result of some sort of legal relationship between two individuals.

However, based on a few cases, it was determined that vicarious criminal culpability can be imposed only by virtue of a statutory provisions and not otherwise. As a result, because no unique criminality legislation imposes vicarious responsibility, it was determined that an administrator of a WhatsApp group could not be held accountable for an unpleasant post made by a group member.

“The petitioner has been charged with Sections 67B (a), (b), and (d) of the IT Act, and Section 13, 14 and 15 of the POSCO Act. None of these provision provide for such liability. 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 intermediate under the IT Act. He does not receive or transmit any record or provide any service with respect to such record. 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.”

Furthermore, as established by the Bombay and Delhi High Courts, the sole advantage possessed by the Admin of a WhatsApp group over other members is the ability to add or delete any of the group’s members. he has no physical or other control over what a member of a group posts on the site.

Similarly, he cannot regulate or filter group messages. As a result, it was determined that the creator or administrator of a WhatsApp group, merely acting in that capacity, cannot be held vicariously liable for any objectionable content posted by a group member.

The Judge also emphasized that there was nothing on record to suggest that the petitioner had published or transmitted, or caused to be published or transmitted, the alleged obscene material in any electronic form, or that he browsed or downloaded the said material or, in any way facilitated child abuse online.

Because the main elements of the alleged offences are entirely missing in the case of the petitioner, the court determined that it is a situation in which it can exercise its exceptional jurisdiction under section 482 of the Cr.P.C.

As a result, the proceedings against the petitioner were stayed, and the petition was granted. It should be noted that the High Court of Madras has voiced similar sentiments.

Tagged: Kerala   High   Court   WhatsApp   whatsapp   wednesday   admin   admins   administrator   vicarious   liability   criminal   law   Justices   Kauser   Edappagath   Sction   482   Cr.P.C.   crpc   madras   Section   67(a)   (b)   (d)   Section   13   14   15   Poso   Act     
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