An administrator of a WhatsApp group cannot be held criminally liable for an objectionable post by another member of the group, the Nagpur bench of the Bombay High Court has held and quashed a case of sexual harassment lodged against a 33-year-old man. The order was passed last month and a copy of it was made available on April 22.
A division bench headed by Justice Z A Haq and A B Borkar noted that an administrator of a WhatsApp group has only limited powers of adding or deleting members to the group and does not have the power to regulate or censor the content posted in the group. The court passed its order on an application filed by Kishor Tarone (33), the administrator of a WhatsApp group.
He was seeking to quash the case registered against him in Gondia district in 2016 under Sections 354-A(1)(iv) (making sexually coloured remarks), 509 (insulting the modesty of a woman) and 107 (abetment) of the IPC and Section 67 (publishing or transmitting obscene material in electronic form) of the Information Technology Act. As per the prosecution, Tarone failed to take action against a member of his WhatsApp group who used filthy and indecent language against a woman member in the group.
It was alleged that the applicant, being the group administrator, did not remove or delete the member from the group and also did not asked him to apologise. The bench in its order said the crux of the matter is whether an administrator of a WhatsApp group can be held criminally liable for objectionable posts made by a member of the group.
Noting the functioning of the messaging service app, the court said, “Group administrators, as they are generally called, are the ones who create the group by adding or deleting members. Every chat group has one or more administrators.” A group administrator has only limited power of removing a member from the group or adding other members to the group, it said. “Once the group is created, the 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 court said.
“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,” the HC said. But, if a member of the group posts any content, which is actionable under law, such a person can be held liable, the court said.
“In the absence of a special 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 unless it is shown that there was common intention or pre-arranged plan,” the court said in its order. The HC quashed and set aside the FIR lodged against Tarone and the subsequent charge sheet filed against him.
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