In a significant judgment, the Kerala High Court on Wednesday, 23 February, ruled that the admin of a WhatsApp group cannot be held vicariously liable for objectionable posts made by group members.
The case involved an admin of a WhatsApp group, who was charged for illegal content allegedly posted by another group member.
Justice Kauser Edappagath observed that "a vicarious criminal liability can be fastened only by reason of a provision of a statute and not otherwise".
"In the absence of a special penal law creating vicarious liability, an admin of a WhatsApp group cannot be held liable for the objectionable post by a group member," he added.
The Case
22-year-old Manual from Kerala's Alappuzha district created a WhatsApp group by the name FRIENDS, in which he was an admin. On 29 March 2020, one of the other admins posted a video depicting children engaged in sexually explicit act.
Three months later, the Ernakulam City police registered a case against the person for the offences under Sections 67B of the Information Technology Act, 2000 and Sections 13, 14 and 15 of the Protection of Children from Sexual Offence Act, 2012 (the POSCO Act).
Being the creator and co-administrator of the group, Manual was later charged as the second accused. After investigating, the police submitted the final report, which is pending for trial at the Additional Sessions Court, Ernakulam.
Manual moved the Kerala High Court challenging the charges against him. His contention was that he was charged only because he was the admin of the group, and did not participate in the offence.
Advocates Anil Kumar, M Sivaraman, and C Chandrasekharan appeared for the petitioner while Senior Public Prosecutor MK Pushpalatha represented the respondents.
What The Court Said
Considering the case, Justice Kauser Edappagath said that due to lack of moderation, "members of a WhatsApp group may put objectionable contents. The legal consequences and potential liability of the administrator, stemming from such an objectionable post has come up for consideration".
He noted that vicarious liability in civil and service matters usually arises because of a legal relationship between two people. However, referring to precedents, he found that vicarious criminal liability can be fastened only by reason of a provision of a statute and not otherwise.
"There is no law by which an admin of any messaging service can be held liable for a post made by a member in the group. A WhatsApp admin cannot be an intermediary under the IT Act."Justice Kauser Edappagath
"There is no master-servant or a principal-agent relationship between the admin of a WhatsApp group and its members. It goes against basic principles of criminal law to hold an admin liable for a post published by someone else in the group," the court observed.
It also noted that the only privilege enjoyed by the admin of a WhatsApp group over other members is that he can either add or delete any of the members from the group.
"He does not have physical or any other control otherwise over what a member of a group is posting thereon. He cannot moderate or censor messages in a group,” the judgment said.
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