INTRODUCTION
WhatsApp – the most used messaging mobile Application in the world, has become a virtual space for instant sharing of text and voice messages, pictures, videos, documents, and even making payments. Another feature is that of WhatsApp Group, where anyone can form a group and has certain limited controls of adding and removing members and allowing them to message. The one who makes a WhatsApp group is called an Admin, who can further make other members as Co-Admins too. We are all members of different WhatsApp groups – from friends’ groups to family groups and from college groups to office groups. In just a few clicks, one can create a WhatsApp group for any reason.
However, with power comes responsibility and in this article, we shall discuss the liability of a WhatsApp Group Admin for any illegal activity happening in the WhatsApp group.
Bombay HC on WhatsApp Group Admin’s Liability
The issue propped up in the case of Kishor Tarone v. State of Maharashtra & Anr. (March 21, 2021 Bombay HC Nagpur Bench, Criminal Application No. 573 of 2016), wherein serious charges were levelled against the WhatsApp group admin – 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). The only fault of the accused was that he was an Admin of a WhatsApp group in which one of the members had allegedly used filthy language including sexual coloured remarks against another member of the same group.
Before going on to the judgment of the case, it is imperative to note that this was not the first time that such serious charges were levied against an Admin. The first event of such nature was in 2017, where a 30-year-old Krishna Sannathamma Naik, an Admin of a WhatsApp group was arrested in the Uttara Kannada district of Karnataka after a derogatory image of Prime Minister Narendra Modi was allegedly shared on the group by a member. In recent years, law enforcement agencies have legitimized such arrests especially during the Covid-19 pandemic. As online messaging platforms are exponentially growing, it has become a challenge for law enforcement agencies to ascertain online crimes and impose liability on users of such platforms. The infamous toolkit case is an example, where Disha Ravi, a young graduate from Bengaluru was arrested for serious offenses like Sedition and Criminal Conspiracy, for her alleged involvement in a Google Form Document, also called as ‘toolkit’.
In 2020, after the nationwide lockdown was imposed in India due to the Pandemic, the Maharashtra Cyber Cell had issued a 2-paged advisory for WhatsApp users and Admins during the Covid-19 pandemic. Certain DOs and DONTs along with the consequences were prescribed in the advisory. The Jharkhand government had issued a similar advisory back in 2016 warning the Admins regarding the spread of rumours through WhatsApp.
Coming back to our case, the matter was heard by a Division Bench preside over by Z.A. Haq And Amit B. Borkar, JJ. The Hon’ble observed that, “Every chat group has one or more group administrators, who control participation of members of the group by deleting or adding members of the group. A group administrator has limited power of removing a member of the group or adding other members of the group. Once the group is created, the functioning of the administrator and that of the members is at par with each other, except the power of adding or deleting members to the group.” Further the Bench 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.”
Therefore, the legal standing is that a WhatsApp Group Admin cannot be held liable simply because a member(s) of such group shared objectionable content on the group.
It is worth noting that in such cases, often provisions of the IT Act, 2000 are invoked alleging the defendant to be an ‘intermediary’. In the afore-mentioned case, the Bench also drew a difference between a mere group admin and an ‘intermediary’ by stating that, “an admin, by merely creating a group, does not publish or transmit material over the internet.”
Delhi HC on Online Chat Group Admin’s Liability
A similar issue of Telegram and Google Chat Admin’s liability was discussed by the Hon’ble Delhi High Court in the case of Ashish Vhalla v. Suresh Chaudhary & Ors. (November 29, 2016; Delhi HC; CS(OS) No. 188/2016 and IA No. 9553/2016), wherein the Admin was sued for civil defamation for allowing members to publish messages that were defamatory against the complainants. The Bench observed that, “To make an administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation.”
CONCLUSION
However, there are some grey areas in this context, for instance, the current Admin may not be the one who had initially created the group, or the admin could have been made default admin because the original admin left the group. There happened a case in Madhya Pradesh in 2018, where Junaid Khan, a student was arrested and booked under the IT Act and Section 124 A (sedition) of the IPC, however, it was the original admin of the group who had sent an objectionable message before exiting from the group. The law is still unclear in such aspects, but I hope the above two decisions of the Hon’ble Bombay and Delhi High Courts come to the rescue of such persons. Moreover, with the ever-increasing growth of online chatting/sharing/connecting platforms like WhatsApp, Telegram, Discord, and a thousand more, amendments in the Information Technology Act are required to address the issue of online hate crimes and hold the offender liable.
REFERENCES
- Bharat Chugh, Siddharth, “Can the administrator of a WhatsApp group be held liable for objectionable posts?”, Bar & Bench, 2021
- www.indiankanoon.org, Kishor Tarone v. State of Maharashtra & Anr. (March 21, 2021 Bombay HC Nagpur Bench, Criminal Application No. 573 of 2016)
- www.indiankanoon.org, Ashish Vhalla v. Suresh Chaudhary & Ors. (November 29, 2016; Delhi HC; CS(OS) No. 188/2016 and IA No. 9553/2016)
- www.scroll.in, https://scroll.in/latest/836390/whatsapp-administrator-member-arrested-and-released-on-bail-over-alleged-morphed-photo-of-pm-modi
- www.scroll.in, https://scroll.in/latest/887604/madhya-pradesh-man-in-jail-since-february-for-whatsapp-forward-family-says-he-was-default-admin
- www.indiatoday.in, https://www.indiatoday.in/technology/news/story/cops-say-whatsapp-group-admins-to-go-to-jail-if-rumours-spread-through-app-346560-2016-10-14
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