Whatsapp Groups Admins Cannot Be Punished For Objectionable Posts By Members: High Court
The Kerala High Court has said that admins of WhatsApp groups can’t be held liable for objectionable posts made by group members.
The Bench rejected a chargesheet filed against a WhatsApp group admin against whom a case was registered under relevant sections of POCSO Act and IT Act.
The accused is Manual, 22, a native of Alappuzha district who created a WhatsApp group named ‘FRIENDS’ and was its admin.
On March 29, 2020 a group member posted an objectionable video related to children.
On June 15, 2020, the Ernakulam City police registered a case against the person for crimes under Sections 67B (a)(b) and (d) of the Information Technology Act, 2000 and Sections 13, 14 and 15 of the Protection of Children from Sexual Offence Act, 2012.
Manual was brought in as the second accused since he created the group where the offence was committed.
Police submitted the final report, which is pending for trial at the Additional Sessions (Cases Relating to Atrocities and Sexual Violence Against Women and Children) Court, Ernakulam.
Manual moved the High Court challenging the case against him since he did not commit the crime but only made the group it took place in.
The court assessed whether Manual, who is the petitioner in the case, has vicarious liability or can be held liable for the act of the video poster.
Vicarious liability is an indirect liability that arises in situations where there is a legal relationship between two individuals such as a superior and subordinate in a company.
Can An Admin Be Indicted?
For example, in employment cases, a superior may be held vicariously liable for any offence committed by his subordinates.
There is no law which holds an admin of any messaging service liable for a post made by a member in the group.
The admin cannot be an intermediary under the IT Act since he does not receive or transmit any record or provide any service with respect to such record.
Admin-Group Member Relation
The Court observed that there is no master-servant or a principal-agent relationship between the admin and the group members.
Holding an admin accountable for a post made by someone else goes against basic principles of criminal law.
Criminal intention or knowledge that one’s action or lack thereof would cause a crime to be committed- these are the ingredients that constitute a crime.
A group admin does not have any control over the content members post. He cannot moderate or censor messages either.
The only privilege he has is the power to add or remove members.
The High Court of Bombay dealt with a similar issue where an admin was being blamed for content posted by a group member.
The Court gave the verdict that the admin cannot be held vicariously liable for an act of a member of the group unless it is shown that there was common intention or pre-arranged plan acting in concert with the offender.