Mahima
The Division Bench of Justices ZA Haq and Amit B Borkar observed that, “In the absence of a specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a group member. Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator.”
In the present application, the applicant challenged the charge-sheet filed in the Court of Judicial Magistrate based on the FIR registered.
The FIR was registered for offences punishable under Sections 354A(1)(iv), 509 and 107 of the Indian Penal Code and Section 67 of the Information Technology Act.
According to the FIR, the applicant was an administrator of a WhatsApp group who didn’t take any action (like removing from the group) against the accused when he used filthy languages against the non-applicant.
The Court observed that the group administrator has limited power of merely adding or removing people from the group.
The administrator does not have the power to regulate, moderate or censor the content posted in the group.
However, if a group member posts something which is objectionable under law, such person can be held liable under provisions of law.
Further, a group administrator cannot be held vicariously liable for an act of the group member unless common intention or pre-arranged behind such act plan of WhatsApp administrator and group member is proven.
The Court opined that failure to seek apology from a member or to remove such member who made the objectionable remark would not amount to administrator’s criminal liability.
The Court dismissed the proceedings against the applicant and expressed that despite allegations in FIR were correct, the material in charge sheet does not disclose essential ingredients of offences alleged against the applicant.
