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| Edited By: Satya Muley |Source: |Updated: Feb 13, 2022, 10:56 PM IST
The new technological features of instant messaging platforms like WhatsApp give rise to new challenges for the regulating bodies to govern them. One such difficult task is to determine the roles, responsibilities, duties, and liabilities of a WhatsApp group administrator when illegal content is shared on the group by a group member. This is an attempt to examine the crimes committed by using these new technological features within the framework of the existing laws in India.
Current scenario
Anybody can create WhatsApp groups for whatever reason they wish for. We often see many WhatsApp groups are created, joining links are made viral and people are added or joined into such groups very casually. In many WhatsApp groups, people face cyberbullying, threats, gaslighting, breach of personal data, moral policing, manipulation of mass opinion and heinous acts like social and public shaming, promoting enmity and violence, fraud etc.
In their ‘Best Practices’ on “How to Use WhatsApp Responsibly”, which serves a limited purpose, WhatsApp states that (a) the group administrators should ask for permission before adding anybody to a group, (b) respect the boundaries of the members when they leave the group by not re-adding them without their permission, and (c) use the group control settings by either allowing all members to send a message in the group or limit it to admins only, depending on the nature and purpose of the group.
Further, these practices are merely suggestive, and the legal responsibilities or the legal implications of the actions or inactions of the admins are not included in the Terms of Service of WhatsApp. This has created a vacuum in the legal understanding of the role of a WhatsApp Admin.
If every position of power comes with responsibility, would it be appropriate to assume that a WhatsApp Group Administrator is a position of power that entails moral and legal responsibility? Or will it be more accurate to assume that the role of an admin is just a technical feature provided by WhatsApp.
WhatsApp Groups – a Virtual Public Square
WhatsApp groups have become a vibrant platform where a wide range of topics (religious, political etc.) are discussed. Thus, WhatsApp has become much more than a medium of instant private messaging. It is a major platform for circulating information and mass messaging. Every WhatsApp group is like a public square. Hence, it is critical to determine the liability of the WhatsApp Group Admins when content that violates any law (defamatory, provocative, objectionable, obscene, pornographic, misleading, intimidating etc.) is posted by a member of their group, or by themselves.
What is the law that governs the role of WhatsApp group administrators in India?
In India, FIRs against the group administrators have often been registered and were sometimes followed by the arrests of the admins. In the recent past, certain district and state authorities have gone to the extent of issuing orders which declared that the admins of WhatsApp groups shall be held liable if the content that provokes social unrest or spreads rumours is shared on their groups.
Some WhatsApp group admins were also charged with committing offences under various sections of the IPC and IT Act. For example, the District Magistrate of Kupwara district of Jammu & Kashmir had mandated the admins of “WhatsApp newsgroups” and “social media news agencies” to register their groups at the District Social-Media Centre, through a circular issued in April 2016. The Mumbai Police and Maharashtra Cyber Cell had issued prohibitory orders and warned WhatsApp Group Admins that they will be held liable if the group members post communal or fake news related to COVID-19. Even though the Group Admin lacks technological features for deleting, pre-approving, or monitoring the content posted by the group members, the authorities have noted that the power of administrator is capable of facilitating, limiting as well as prohibiting the online circulation of content that is illegal.
The stand of the Indian Judiciary so far
The stand that the Indian judiciary has taken in the last couple of years regarding the determination of the liability of the admins is different from the aforementioned. In the recent case Kishor v. State of Maharashtra & Anr (2021), the Bombay High Court held that in the absence of specific penal provision creating vicarious liability, an Admin 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 a common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a WhatsApp Group and the Group Admin. Thereafter, a similar interpretation was also upheld by the Madras High Court in R. Rajendran v. the Inspector of Police and Another (2021). Previously, in Ashish Bhalla v. Suresh Chawdhary (2016), the Delhi High Court also stated that making an Admin 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.
It is to be noted that these three judgements clarified certain aspects of law but did not deal with the matter elaborately enough for any Group Admin to assume that they can go Scot free in all the situations where their group members share offensive content on the group.
The subject matter has not been discussed enough by the courts for one to determine whether group administrators will be exempted from vicarious liability when members of the groups circulate content that would constitute as criminal offences. The judiciary may not extend a favourable interpretation in cases where members of the group have shared content related to paedophilia, pornography, or content that would be provocative or expressly illegal.
The role of a WhatsApp Admin is yet to be fully tested vis-a-vis the provisions of the IT Act. In section 2 (w) of the IT Act, with respect to any electronic message, “intermediary” is defined as any person who on behalf of another person receives, stores, or transmits that message or provides any service. However, there is still a lack of clarity on the law point of whether admins can be considered as an intermediary under the IT act.
There are other far-reaching implications of not imposing any liability on the WhatsApp group admins.
Conclusion
On the other side, are Admins expected to read and take appropriate actions or intervene every time something objectionable is put up on the group? If yes, one must assume that the admins are trained individuals who are well versed with the rules of law and are impartial. If not, can it be a valid defence that the admins have just “scrolled through the messages” and not actually read them.
Oftentimes, it has been observed online that WhatsApp group Admins exert unjustified authority on the group members and become bully, or practice moral policing in the group. Also, there are gullible/ignorant WhatsApp group Admins who have absolutely no idea about the activities in the group and remain silent spectators only. The role of all Admins, the nature of the group, and the conduct of the group administrator differ largely from group to group. Thus, a blanket exemption from liability of all admins lacks justification and appears imperfect legally.
The state has already identified the problem and has demonstrated an intent to act upon the violators. However, due to the absence of express law, we are required to rely on judicial interpretation. So far, the judgements have been more specific to the facts of the case and cannot be taken as a general and binding precedent on all the cases related to the WhatsApp group Admins. If the number of cases escalates, the judiciary might direct the government to pass specific legislation to address the situation.
The author is a practising lawyer in Bombay High Court and the Supreme Court based out of Pune.
(Disclaimer: The views expressed above are the author's own and do not reflect those of DNA.)
