Bombay High Court: Group Admin of WhatsApp Group cannot be held Vicariously liable For Content Posted by Members in Group

Bombay High Court: Group Admin of WhatsApp Group cannot be held Vicariously liable For Content Posted by Members in Group

The Bombay High Court (HC), Nagpur bench in the case titled Kishor Tarone (Petitioner) v. State of Maharashtra & Anr. (Respondents) held that the administrator of a Whatsapp group cannot be held vicariously liable for the objectionable content that is posted by the members of the group.

The HC bench comprising of Justices ZA Haq and Amit B Borkar observed that an administrator (admin) of a Whatsapp Group has no power to regulate, moderate, or censor the content of messages posted on the group and hence the admin cannot be held vicariously liable.

As to the background of the case, an application was filed under Section 482 of the Code of Criminal Procedure (CrPC). The petitioner, Kishor Tarone, had challenged the First Information Report (FIR) and chargesheet filed before the Chief Judicial Magistrate at Gondia.

The accusations against the petitioner were that as a WhatsApp group administrator, he had not removed the primary accused in the case from the group nor asked the accused to submit an apology for using filthy language against the complainant, a female member of the group.

Issue before the HC

Whether an administrator of Whatsapp group can be held criminally liable for the objectionable post of its member for committing offenses punishable under sections 354- A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000?

Whatsapp is an instant messaging platform that can be used for mass communication by opting to create a chat group. A chat group is a feature on Whatsapp which allows joint participation of members of the chat group. Group Administrators, as they are generally called, are the ones, who create the group by adding or deleting the members to the same.

Once the group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding or deleting members to the group. The Administrator of a Whatsapp group does not have the power to regulate, moderate or censor the content before it is posted on the group.

A criminal application was filed under Section 482 of CrPC before the HC and it FIR, chargesheet, and further proceedings arising against the administrator of a WhatsApp group. The admin was charged with offenses under Sections 354A (passing sexually coloured remarks) and 509 (insult modesty of the woman) of the Indian Penal Code and Information Technology Act and proceedings arising from them.

The HC clarified that if a person posts any message on the group and if that content is actionable under law, then that member shall be held liable and the admin cannot hold responsibility for the same.

The HC held that when a group is created by a person on Whatsapp he cannot presume, or have advanced knowledge of the criminal acts of the member of the group. Hence, there is no scope of holding the admin to be liable for the content posted on the group.

The bench highlighted the point that allegations in the FIR and the material in the charge-sheet are considered as true, the ingredients of the offense alleging passing of sexual remarks under the Indian Penal Code are not fulfilled.

While dealing with the parameters of exercise of the powers conferred on the HC Court under Section 482 being settled, that in order to prevent the abuse of process of any Court and to secure the ends of justice, this power can be exercised.

The HC placed reliance on the case of State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335], wherein the SC held that the power under Section 482 can be exercised by this Court, where the allegations made in the FIR, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offense or make out a case against the accused.

The Court held that "The FIR and consequent charge-sheet filed for the offenses punishable under Sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and Section 67 of the Information Technology Act, 2000 and further proceedings of Regular Criminal Case pending on the file of are quashed and set aside."