WhatsApp Group Administrator Not Liable For Member’s Objectionable Post
The Nagpur bench of the Bombay High Court recently held that a WhatsApp group administrator cannot be held liable for 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
The bench passed the order while quashing an FIR and subsequent charge sheet against a Whatsapp group administrator accused under sections 354-A(1) (making sexually colored remarks), 509 (Word, gesture or act intended to insult the modesty of a woman), 107 (Abetment of a thing) of the IPC and section 67 of the IT Act, for showing his helplessness in acting against the group member who had made objectionable remarks against a female member.
The woman argued that despite the member using filthy language against her, the administrator had not taken any action against the member. He had neither removed nor deleted the accused from the Whatsapp group. Furthermore, the admin had not asked the accused to submit an apology to her.
Once the group is created, 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.
The bench held that members of these groups can be held liable for their posts, there is no provision in the IPC for holding a group admin vicariously. The Administrator of the Whatsapp group does not have the power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the Whatsapp group posts any content, which is actionable under law, such person can be held liable under relevant provisions of 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.
Observing this, the court quashed and set aside an FIR registered in July 2016 against a 33-year-old man, an administrator of a WhatsApp group, along with the chargesheet filed before the magistrate in Gondia district for not taking action against a member who used “filthy” and “indecent” language against a woman member in the group.
Justice Borkar, who authored the judgement for the bench, 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.”
Setting aside the FIR and chargesheet, the bench held, “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 present proceedings against the applicant would amount to abuse of process of Court.”