Admin of WhatsApp group cannot be held liable for objectionable post by group member: Kerala HC

Kochi: Kerala High Court ruled on Thursday that an admin of a WhatsApp group cannot be held liable for the objectionable post by a group member. The HC ruled this while allowing a petition of Manual, a WhatsApp group admin who is accused in a case where another admin of the group posted a porn […]

Kochi: Kerala High Court ruled on Thursday that an admin of a WhatsApp group cannot be held liable for the objectionable post by a group member.

The HC ruled this while allowing a petition of Manual, a WhatsApp group admin who is accused in a case where another admin of the group posted a porn video depicting children engaged in sexually explicit acts in the group.

Single Bench of Justice Kauser Edappagath said in the order that, “a vicarious criminal liability can 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.” The bench further noted that “there is no law by which an admin of any messaging service group can be held liable for a post made by a member in the group. A WhatsApp Admin cannot be an intermediary under the IT Act.

He does not receive or transmit any record or provide any service with respect to such record. There is no master-servant or a principal-agent relationship between the Admin of a WhatsApp group and its members. It goes against basic principles of criminal law to hold an Admin liable for a post published by someone else in the group. It is the basic principle of criminal jurisprudence that there must be an ingredient of an offence and both the act and intent must concur to constitute a crime.” “The only privilege enjoyed by the Admin of a WhatsApp group over other members is that he can either add or delete any of the members from the group. He does not have physical or any control otherwise over what a member of a group is posting thereon. He 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 bench further added.

The case pertains that, “the petitioner herein created a WhatsApp group by name FRIENDS. Being the creator, he was the Admin. There were two more Admins. On March 29, 2020, at 08.37 p.m, accused No.1 posted in the group a porn video depicting children engaged in a sexually explicit act. On June 15, 2020, the Ernakulum City police registered crime against the accused No.1 as Crime No. 864/2020 for the offences under Sections 67B (a)(b) and (d) of the IT Act 2000 and Sections 13, 14, and 15 of the POCSO Act, 2012. Later on, the petitioner was arrayed as the accused No.2 being the Creator of the group and Co-Administrator.”