The Kerala High Court has held that the creator or Administrator (Admin) of a WhatsApp group cannot be held vicariously liable for any objectionable content posted on it by any of its members, The court made the ruling while quashing a POSCO case lodged against an admin of a WhatsApp group for posting child pornography on it by one of its members.
The court held that “as has been held by both the Bombay and Delhi High Courts, the only privilege enjoyed by the Admin of a WhatsApp group over other members is that he/she can either add or delete any of the members from the group. He/she does not have physical or any control otherwise over what a member of a group is posting thereon. He/she cannot moderate or censor messages in a group. Thus, Creator or Administrator of a WhatsApp group, merely acting in that capacity, cannot be vicariously held liable for any objectionable content posted by a member of the group.” The court further observed that vicarious criminal liability could 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”.
Not an intermediary
The court added that a WhatsApp Admin could not be an intermediary under the Information Technology Act. He did not receive or transmit any record or provide any service with respect to such record. There was no master-servant or a principal-agent relationship between the Admin of a WhatsApp group and its members. It went against basic principles of criminal law to hold an Admin liable for a post published by someone else in the group. According to the petitioner, Manual of Alappuzha, one of the members in a WhatsApp group created by him had posted a porn video. A case was registered by the Ernakulam city police against the member under the provisions of the IT Act and also under Protection of Children from Sexual Offence Act (POCSO) and the petitioner was also made a co-accused.