An administrator (admin) of a WhatsApp group cannot be held liable for any objectionable content posted by a member of the group, unless it is shown that there was a 'common intention' or 'pre-arranged plan' to act in concert between the two, rules the Bombay High Court.
While quashing a first information report (FIR) and subsequent charge sheet against an admin of a WhatsApp group, the division bench of justice ZA Haq and justice MA Borkar says, "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. Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator."
The bench observed that admin of the WhatsApp group does not have the power to regulate, moderate or censor the content before it is posted on the group. However, it says, "if a member of the WhatsApp group posts any content, which is actionable under law, such a person can be held liable under the relevant provisions of the law. In the absence of a specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group."
The bench was hearing a petition filed by a woman, who was a member of the WhatsApp group. In her plea, she contended that despite the member using filthy language against her, the admin, a 33-year-old, had not taken any action against the member. "The admin had not even asked the accused to submit an apology," she stated.
However, the HC held that section 354-A(1)(iv) does not imply vicarious liability, nor could it be said that the Legislature intended to introduce vicarious liability by necessary implication.
"In our opinion, in the facts of the present case, non-removal of a member by administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by the administrator," the bench noted.
The woman had filed an FIR in July 2016 against the admin of the WhatsApp group. The charge sheet was also filed before the magistrate at Gondia against the admin.
The HC, quashed and set aside the FIR and the chargesheet. Justice Borkar, who authored the judgement observed, “In our opinion, in the facts of present case, non-removal of a member by administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by administrator.”
"Taking an overall view of the matter, we are satisfied that even if allegations in the FIR are accepted as correct, and considering the material in the form of charge-sheet on its face value, it does not disclose essential ingredients of offences alleged against the applicant. We are therefore satisfied that continuation of the present proceedings against the applicant would amount to abuse of process of Court,” the division bench says.