Kerala High Court: While addressing the question of whether the creator or administrator of a WhatsApp group is criminally liable for offensive content posted by a group member, Dr Kauser Edappagath, J., held that a person can be criminally liable for the acts of another if they are party to the offence.
High Court remarked that,
There is no law by which an Admin of any messaging service can be held liable for a post made a member in the group.
Gone are the days, when we used a short message service or a formal website chat-box to communicate with our kith and kin. They were replaced by personalized messaging apps like WhatsApp, Facebook Messenger, Viber etc.
A person who creates the WhatsApp group is called the Administrator of the group and he may also make other members as Group Admin. The said admin/s has certain powers bestowed upon i.e., adding/removing a member etc. Due to the lack of moderation of these groups, the members are at almost free reign to post/share any kind of data that they wish in terms of messages, voice notes, videos, songs, etc.
It has been stated that many 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 in the present case.
Factual Background
Petitioner had created a WhatsApp Group, wherein he had made two more admins, accused 1 and CW4. Accused 1 had posted a porn video in the group depicting children engaged in a sexually explicit act.
In view of the above incident, crime was registered against the accused 1 for 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, a petition was arrayed as accused 2 being the creator of the group and co-administrator.
Analysis, Law and Decision
High Court noted that though the video was posted by the accused 1, petitioner was arrayed as co-accused merely in the capacity as the creator/administrator of the group.
The crux in the matter is whether the petitioner could be vicariously held liable for the actions of the accused 1?
“Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency; respondent 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.”
Supreme Court’s decision in Sham Sunder v. State of Haryana, (1989) 4 SCC 630, had dealt with the issue of criminal vicarious liability many a time.
The Bench expressed that vicarious liability can be fastened only by reason of a provision of a statute and not otherwise. Therefore, the Court held that,
“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.”
Further, the High Court added that, 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.
In Ashish Bhalla v. Suresh Chawdhary, 2016 SCC OnLine Del 6329, the Delhi High Court observed that defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor.
Creator or Administrator of a WhatsApp group, merely acting in that capacity, cannot be vicariously held liable for any objectionable content posted by a member of the group.
In view of the facts of the present matter, Bench noted that there was nothing on record to suggest that the petitioner had published or transmitted or caused to be published or transmitted in any electronic form the alleged obscene material or he browsed or downloaded the said material or, in any way, facilitated abusing children online so as to attract Sections 67B (a), (b) or (d) of the IT Act. Similarly, the prosecution had no case that the petitioner used children in any form of media for his sexual gratification or used them for pornographic purposes or stored, for commercial purposes, any child pornographic material in order to attract Sections 13, 14 or 15 of the POCSO Act.
Hence, the Court invoked its extraordinary jurisdiction under Section 482 CrPC and the proceedings against the petitioner were qushed.[Manual v. State of Kerala, 2022 SCC OnLine Ker 990, decided on 23-2-2022]
Advocates before the Court:
For the Petitioner: Anil Kumar M. Sivaraman and C. Chandrasekharan, Advocates
For the Respondent: KK Pushpalatha -SR PP