Introduction
The outreach of social media messaging is increasing exponentially and so are the potential legal ramifications of any imprudent remarks made through such platforms. Recently, a YouTuber from Ludhiana in Punjab was arrested1 for alleged objectionable racial remarks against an MLA (and former cabinet minister) from Arunachal Pradesh. The YouTuber has been booked under sections 124A (sedition), 153A (promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc), 505(2) (Statements conducing to public mischief) of the IPC in Itanagar (Arunachal Pradesh). Without going into the merits of this specific case and other similar cases (involving Twitter or Facebook as the messaging platform) or the constitutional validity of application of sedition law in such cases or the extent of restrictions on free speech under Art. 19(2), we will limit our discussion in this article specifically to the current position of law on the liability of group administrators in India.
The question that arises from the above preface that we will discuss in this article is – If content that is defamatory, objectionable, obscene, pornographic, misleading or in violation of any law, is published and circulated through WhatsApp or any other messaging platform (like Telegram, Google Chat etc.) where chat groups are managed through administrator roles, what will be the liability of group administrators in such cases?
Recent Judgement by Bombay High Court on Liability of WhatsApp Group Admin
“When a person creates a Whatsapp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group”
Bombay High Court in Kishor Tarone v. State of Maharashtra & Anr.2
In a recent judgement (Kishor Tarone v. State of Maharashtra & Anr.2), the Nagpur bench of the Bombay High Court has held that a WhatsApp group administrator cannot be held liable for an objectionable post by another member of the group.
The court passed its order on March 01, 2021, deciding on an application filed by a person who was an administrator of a WhatsApp group where a member had allegedly made filthy and indecent remarks against a woman member of the group. He was seeking to quash the case registered against him under sections 354(1)(iv) (making sexually coloured remarks), 509 (insulting the modesty of a woman) and 107 (abetment) IPC and Section 67 (publishing or transmitting obscene material in electronic form) of the Information Technology Act.
The prosecution case was that the admin had failed to take action against the member of his WhatsApp group who used filthy and indecent language against a woman member of the group. It was alleged that the applicant, being a group administrator, did not remove the accused from the group and also did not ask him to apologize and rather expressed his helplessness.
The High Court while quashing the FIR against the applicant held that, “A group administrator has limited power of removing a member of the group or adding other members of the group. 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 High Court observed that, “The administrator of a WhatsApp group does not have power to regulate, moderate or censor the content before it is posted on the group.”
“If a member of the WhatsApp group posts any content, which is actionable under law, such person can he held liable under the relevant provisions of law”, the High Court stated. “When a person creates a WhatsApp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group”, High Court said. Unless it is shown that there was a common intention or pre-arranged plan by such member along with the administrator, a group administrator cannot he held liable for the acts of a member of the group.
Delhi High Court Ruling on WhatsApp Group Admin liability:
“To make an administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation”.
Delhi High Court in Ashish Bhalla v/s Suresh Chaudhary and Others3
The issue of a group administrator’s accountability, has earlier been discussed by the Delhi High Court in the case of Ashish Bhalla v/s Suresh Chaudhary and Others3. In this case, the allegation was that some buyers of a housing project had published messages against the plaintiff on Telegram and Google Chat groups which were defamatory and maligned his image. The alleged defamatory posts attributed to defendant #1, published on the Telegram and Google Chat applications, were not found to be defamatory by the court at all thus the plaint was rejected. Defendant #3 was included in the plaint as he was the administrator of the Telegram and Google Chat groups where the alleged statements were published.
The Bench while rejecting the plaint against defendant #3 observed that, “To make an administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation”. The Court held that the administrator could not be held liable for defamatory statements made on the group. It is not that without the approval of the administrator, the members cannot make posts on the group.
It is to be noted that the case in this judgement was rejected on a technical ground of non-disclosure of cause of action against two of the defendants. While rejecting the plaint on technical ground, the court had passed these observations on the liability of an administrator in such a scenario.
Implications of attributing liability on Group Administrators
Lately, there have been spate of cases where attempts have been made by the police authorities to fix the responsibility of the ‘misleading’ or ‘objectionable’ messages on the group admins. There have been directives issued by various district as well as state authorities on attributing the liability of objectionable content on group admins. Such directives place the group administrator in the position of an intermediary which is contrary to the definition and the legislative intent of the provisions related to intermediaries in the Information Technology Act, 2000. The distinction between an ‘Intermediary’ and an ‘Administrator’ needs to be clearly understood as such fallacious directions lead to unnecessary harassment of gullible citizens who in some cases are not even aware that they have been given group admin privileges by other admins.
Liability of an Administrator vis-à-vis Liability of an Intermediary
What needs to be understood is that the administrator is not an intermediary or a service provider who is acting as a bridge between the information publisher and receiver. An intermediary as per the IT Act with respect to any particular electronic record, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record. An Administrator is in a unique position which at best can be compared either with the ‘information recipient’ or an ‘addressee’, with some additional privileges. The administrator can create a group, modify group information and add or remove members. However, the administrator does not have any control whatsoever on the messages posted by other members of the group.
Even an intermediary is exempted from liability under Section 79 of the IT Act for any third party content hosted by it. Unless there is a willful involvement of intermediary in an unlawful act or the intermediary has failed to remove such content or disable access even after receiving ‘actual knowledge’, the intermediary is not liable for any third party content hosted by it.
The Supreme Court in the case of Shreya Singhal v. UOI4 had struck down Section 66A of the Information Technology Act, 2000 in its entirety being in violation of Article 19(1)(a) and not saved under Article 19(2). The Supreme Court observed that any law restricting speech and expression is valid only when such laws are tested against the reasonable restrictions provided under Article 19(2) of the constitution. While upholding the constitutional validity of Section 79 of the IT Act, 2000 along with Rule 3(4) of the Information Technology (Intermediaries Guidelines) Rules, 2011 in this judgement – the Apex Court read down the provisions in Section 79(3)(b) to mean that “actual knowledge” of the objectionable content, that needs to be expeditiously removed by the intermediary, will be through a court order or a notification by the government or its agency. Thus intermediaries were obligated to remove objectionable content only upon receiving a court order or a government notification.
Intermediaries are now bound to also act upon complaints filed by victims, against the violation of the provisions of the act as per the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 notified recently, wherein such complaints can be made to the grievance officer of the Intermediary. We will discuss on the details on new guidelines in a separate article.
Conclusion
Recent judgement by the Bombay High Court clarifies the legal position of an administrator in terms of liability for content posted by any other member in the group. This judgment emphasizes that a group administrator cannot be held vicariously liable for the wrongs done by other members in the group unless the administrator has common intention or planned involvement in such act. The Delhi High Court earlier had compared an administrator’s role to that of the manufacturer of the newsprint (and not the editor). The above judgements clarify the position in cases where defamatory statements were posted by group members. However, it will have to be seen if the courts take a different or stricter view in cases involving serious offences like circulation of messages involving pedophilic content (storage of such content and failure to delete or destroy with an intention to share such content is punishable under the POCSO Act), or statements disturbing communal harmony. Inadequate understanding and application of the cyber-crime and technology laws, by police authorities, have led to such cases where innocent group admins are harassed for no fault at their end. There is an urgent need to train and educate the police authorities to avoid such excessive and improper enforcement of laws, against innocent individuals, as such actions are repugnant to the fundamental rights guaranteed under the Constitution.
- Indian Express Newspaper Report Dated: May 27, 2021
- Kishor Tarone v. State of Maharashtra & Anr. – March 1, 2021 Bombay High Court Nagpur Bench – Criminal Application (APL) No. 573 of 2016
- Ashish Bhalla v. Suresh Chawdhary & Ors. Nov 29, 2016 – Delhi High Court – CS(OS) No.188/2016, IA No.9553/2016 (of defendants no.1 and 3 under Order VII Rule 11 CPC)
- Shreya Singhal v. UOI – AIR 2015 SC 1523; Writ Petition (Criminal) No. 167 of 2012