WhatsApp group admin not liable for objectionable post by other member: High Court

An administrator of a WhatsApp group can't be held criminally responsible for an objectionable post by another member of the group, the Nagpur bench of the Bombay supreme court has held and quashed a case of harassment lodged against a 33-year-old man.

The order was passed last month and a replica of it had been 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 doesn't have the facility to manage or censor the content posted within 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 knowledge Technology Act.

As per the prosecution, Tarone did not take action against a member of his WhatsApp group who used filthy and indecent language against a lady member within the group.

It was alleged that the applicant, being the group administrator, didn't remove or delete the member from the group and also didn't asked him to apologise.

The bench in its order said the crux of the matter is whether or not an administrator of a WhatsApp group are often held criminally responsible 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're generally called, are those 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 made , the functioning of the administrator which of the members is at par with one another , except the facility of adding or deleting members to the group," the court said.

"The administrator of a WhatsApp group doesn't have the facility to manage , moderate or censor the content before it's posted on the group," the HC said.

But, if a member of the group posts any content, which is actionable under law, such an individual are often held liable, the court said.

"In the absence of a special penal provision creating vicarious liability, an administrator of a WhatsApp group can't be held responsible for objectionable content posted by a member of a gaggle unless it's shown that there was common intention or pre-arranged plan," the court said in its order.

The HC quashed and put aside the FIR lodged against Tarone and therefore the subsequent blotter filed against him.