Kerala High Court nullifies POCSO case

Kerala High Court nullifies POCSO case

The petitioner was charged for offences he did not commit    

The Kerala High Court has ruled that a creator or an administrator of a WhatsApp group cannot be vicariously held liable for any objectionable content posted by a member of the group.

Justice Kauser Edappagath noted that the Bombay High Court and the Delhi High Court had held that the only privilege of an administrator was that he could add or delete members to a group.

"He does not have physical or any control otherwise over what a member of a group is posting thereon. He cannot moderate or censor messages in a group. Thus, the creator or an 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," the court directed.

The high court was considering a case where a member of a WhatsApp group had posted some content depicting minors engaged in a sexual act.

While the petitioner was merely the creator and admin of the group, he had been charged for offences under the Information Technology Act (IT Act) and the Protection of Children from Sexual Offences (POSCO) Act.

The court held that none of the provisions provided for vicarious liability and therefore, holding an administrator liable for the posts on a WhatsApp group would go against the basic principles of criminal law.

The court cleared, "He cannot be an intermediary under the IT Act. He does not receive or transmit any record or provide any service with respect to such records. There is no master-servant or a principal-agent relationship between the administrator of a WhatsApp group and its members."

Appearing for the petitioner, advocate Anil Kumar M Sivaraman sought to quash all further proceedings against his client and contended that even if the allegations in the statement or the final report, together with entire the material collected during the investigation were taken into account, they did not constitute the alleged offences.

The court observed, "Due to lack of moderation of these groups, the members therein are at almost free reign to post/share any kind of data that they wish in terms of messages, voice notes, videos and songs. Many members of a WhatsApp group may put objectionable content. The legal consequences and potential liability of the administrator, stemming from such an objectionable post, has come up for consideration in this Criminal Miscellaneous Case."

The judge stated that generally, a person could be criminally liable for the acts of another if he was a party to the offence. But in the present times, strict vicarious criminal liability was somewhat of an exception to the general rule of direct personal culpability and was a modern development through statutory provisions.

The court further noted, "In the absence of a special penal law creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for the objectionable post by a group member."

Considering the facts of the case, the court opined that there was nothing on record to suggest that the petitioner had published or transmitted in any electronic form the alleged obscene material or he browsed or downloaded the said material or facilitated abusing children online so as to attract 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 the POCSO Act.

The court thus deemed it fit to quash the proceedings against him.