Is WhatsApp Group Admin Liable For Criminal Action For Objectionable Message by a Member ?
The Kerala High Court ruled recently that the Admin of a WhatsApp group cannot be held vicariously liable if a member of the group posts objectionable content in the group.
This, according to Justice Kauser Edappagath, is because vicarious liability in criminal law can only be imposed when a statute requires it.
The Court also recalled that it is a basic principle of criminal jurisprudence that mens rea must be present in order for an offence to be committed, and that both the act and the intent must be present in order for a crime to be committed.
The Court further ruled that Sections 67B (a), (b), and (d) of the IT Act, as well as Sections 13, 14, and 15 of the POCSO Act, have been levelled against the petitioner.
Such liability is not provided for in any of these provisions. There is no legal basis for holding an administrator of any messaging service liable for a post made by a group member.
According to the IT Act, a WhatsApp Admin cannot act as an intermediary. He does not receive or transmit any record, nor does he provide any service in connection with such record.
The Admin of a WhatsApp group and its members do not have a master-servant or principal-agent relationship.
To hold an Admin liable for a post made by someone else in the group goes against basic principles of criminal law.
Furthermore, the only advantage enjoyed 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 moderate or censor 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 emphasised 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.
Whatsapp Admin Can Land in Jail for Members Post?
Can WhatsApp Group Admin be held vicariously liable for content posted by members?
Delete WhatsApp, If you have problem with it: Delhi HC to the petitioner.
Background
The petitioner created the ‘FRIENDS’ WhatsApp group. He was the Admin because he was the creator.
There were two more Admins, one of whom was the first to be charged.
The first accused posted a porn video depicting children engaging in sexually explicit acts in the group in March 2020.
As a result, the first accused was charged with a crime under Sections 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 creator and co-admin. Outraged, he filed a petition with the High Court.
Because the basic elements of the alleged offences are entirely missing in the case of the petitioner, the Court determined that it is a case in which it can exercise its extraordinary jurisdiction under Section 482 of the Cr.P.C.
As a result, the proceedings against the petitioner were stayed, and the petition was granted.
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For further details contact:
Dr. Ajay Kummar Pandey
( LLM, MBA, (UK), PhD, AIMA, AFAI, PHD Chamber, ICTC, PCI, FCC, DFC, PPL, MNP, BNI, ICJ (UK), WP, (UK), MLE, Harvard Square, London, CT, Blair Singer Institute, (USA), Dip. in International Crime, Leiden University, the Netherlands )
Advocate & Consultant Supreme Court of India, High Courts & Tribunals.
Delhi, Mumbai & Dubai
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