Can’t book WhatsApp group admin if common intent not proved: Bombay HC
Observing that the in-charge/admin of a WhatsApp group cannot be held liable for an obscene content posted in the group by members unless common intent is proved, the Nagpur bench of the Bombay high court (HC) recently quashed the first information report (FIR) registered against a 33-year-old Gondia resident in 2016. The man was booked on the complaint of a 41-year-old woman after “sexually coloured” remarks against her were posted in a WhatsApp group, of which the Gondia resident was an admin.
A division bench of justice ZA Haq and justice Amit Borkar, while hearing the criminal application by Kishor Tarone, then the president of the youth wing of a political party in Gondia district, was informed by advocate Rajendra Daga that the application challenged the FIR and chargesheet registered against his client at the Arjuni-Morgaon police station and sought to set it aside. Daga submitted that as per the FIR lodged by the woman, despite being a group admin, Tarone neither removed the co-accused who posted the objectionable remarks in the group nor sought an apology from him and was thus named an abettor in the case.
Tarone was booked for punishable offences for making sexually coloured remarks, sexual harassment and (abetment) of the Indian Penal Code (IPC) and section 67 (publishing or transmitting obscene material in electronic form) of the Information Technology Act. However, Daga submitted that there was no incriminating evidence against his and hence, the FIR should be quashed.
After getting conversant with the functioning of the messaging service, the bench observed, “Once the group is created, 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 administrator does not have power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law.”
Noting that there was no criminal liability on a group admin for members’ posts, the bench said, “In the absence of specific 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 acting in concert pursuant to such plan by the member and the administrator.”
The bench further said, “When a person creates a WhatsApp group, they cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group.”
The bench, while quashing the FIR against Tarone, noted, “In our opinion, in the facts of present case, non-removal of a member by administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by administrator.”