New Delhi: The Madras high court has held that a WhatsApp group administrator cannot be made liable for offensive content posted by a group member as long their role is merely of an administrator and nothing else, LiveLaw has reported.
The Madurai bench of the court was responding to a petition filed by a lawyer, who has been running a WhatsApp group called ‘Karur Lawyers’, appealing to the court to quash an FIR (first information report) filed against him by another member of the group citing offensive content on the group. The court agreed to the plea, granting relief to the WhatsApp group administrator while directing authorities concerned to drop his name from the charge sheet.
The FIR was filed after another lawyer, part of the group, alleged that highly offensive content was posted by a group member named Pachiyappan. Based on his complaint, the police had filed an FIR against the group administrator under Section 153A (promoting enmity between different groups on certain grounds by words written or spoken) and Section 294(b) (utters any obscene song, ballad or words, in or near any public place) of the IPC (Indian Penal Code).
Granting relief to the petitioner (WhatsApp administrator), the bench relied on a Bombay high court judgment delivered earlier this year in which it had ruled that there is no “vicarious liability” on the group administrator for objectionable content posted by a group member. It had further said that “vicarious liability” does not come into the picture unless it shows that “there was a common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a WhatsApp group and the administrator”.
Quoting the Bombay high court verdict, the Madras high court further said, ” Common intention cannot be established in a case of WhatsApp service user merely acting as a group administrator. When a person creates a WhatsApp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group.”
The court further contended that administrators of such groups have limited power of adding and deleting members from WhatsApp groups but do not have the power to regulate or censor the content posted on the groups.
Earlier, an additional public prosecutor had called for a forensic report to find out if the alleged offensive content was only posted by Pachaiyappan, as claimed by the petitioner, or whether was it posted by him on behalf of the petitioner. To this, the court had said that the petitioner’s petition cannot be entertained as the forensic report was still awaited, but advised the police to bear in mind the principles laid down by the Bombay high court.
The complainant in the case, for his part, had alleged that the petitioner “lacked bona fides”, stating that Pachaiyappan was removed from the group after objectionable content posted by him was flagged, but was added back to the group within two days.
Source: https://thewire.in/law/whatsapp-administrators-not-liable-for-offensive-content-on-groups-madras-hc
