Can the administrator of a WhatsApp group be held liable for objectionable posts?

Like it or not, we are all part of various WhatsApp groups. In fact, nearly all of us are in more groups than we’d prefer. From project groups to groups for every legal file that comes into office, or the random temporary group that was created for a brief discussion, and last but not the least - the extended family WhatsApp group (with those nauseating good morning flowers!). There are, therefore, WhatsApp groups of all shapes and sizes on our phones.

Fun and games so far. However, things get serious when we start these groups or are assigned the hallowed privilege of being 'The Group Admin’. Is being an ‘Admin’ really a privilege, or a potential millstone around one’s neck? In other words, what are the implications of this? Can there be, for instance, legal consequences of (mal)administering a group or failing to moderate messages/content? Do great responsibilities come with great admin rights?

These were precisely the questions that the Bombay High Court answered recently in Kishor v. State of Maharashtra. In this case, an application under Section 482 of the Code of Criminal Procedure (CrPC) was filed before the Nagpur Bench of the Bombay High Court challenging the charge sheet that named the applicant as an accused. The applicant was charged for being a WhatsApp admin of a group in which one of the members allegedly used filthy language including sexual coloured remarks against another member of the same group.

The charges levelled against the admin were serious - sexual harassment and punishment for sexual harassment (S. 354-A, IPC); words, gestures or acts intended to outrage the modesty of a woman (S.509, IPC); punishment for publishing or transmitting obscene material in electronic form (S. 67, IT Act) and abetment of a thing (S. 107, IPC).

If you are wondering whether these allegations are a little too drastic to be levelled against an admin of a group, let us clear the air and inform you that this was not a one-off incident.

For instance, in 2017, a WhatsApp group admin was arrested in Karnataka because one of the members of the group posted an ‘obscene and ugly’ image of the Prime Minister. Recently, law enforcement agencies have also attempted to provide some legitimacy to such arrests, particularly during the period of the pandemic.

In April 2020, for instance, the Office of the Special Inspector General Police, Maharashtra Cyber Cell issued an ‘advisory for WhatsApp users and admins during the Covid-19 pandemic’. A list of duties was prescribed for WhatsApp users, and in particular, for WhatsApp group admins.

In the past, similar advisories have been issued by the Jharkhand government and even by a District Magistrate in Jammu & Kashmir. According to the Maharashtra Cyber Cell advisory, failure to follow these duties would result in criminal liability attracting various sections of the Disaster Management Act, the Indian Penal Code and the Bombay Police Act.

Interestingly, one of these consequences included action under Section 68 of the Bombay Police Act, which states that “all persons shall be bound to conform to the reasonable directions of a Police officer given in fulfilment of any of his duties under this Act.” The question, however, is whether such directions against WhatsApp admins are reasonable?

According to the Bombay High Court in Kishor,

“A group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content, unless it is shown that there was common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a Whatsapp group and the administrator.”

In other words, a WhatsApp admin does not incur liability solely on the ground that she holds such a position within the group. Thus, even if the admin does not remove the member who posted objectionable content on the group, she would still not be liable.

Similarly, while determining a civil defamation case, the Delhi High Court in Ashish Bhalla v. Suresh Chawdhary observed that an admin of a group cannot be held liable. According to the Delhi High Court –

“When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor. It is not as if without the Administrator's approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform.”

Another aspect in these cases worth examining is the routine invocation of the provisions of the Information Technology Act, 2000. In this context, the Bombay High Court clarified that an admin, by merely creating a group, does not publish or transmit material over the internet. Thus, the Court drew a distinction between a mere group admin and an intermediary under the Act.

The term "intermediary" refers to any person who, on behalf of another person, receives, stores or transmits an electronic record or provides any service with respect to that record. Generally, the admin of a group does not store or receive electronic records on behalf of another. Rather, it is WhatsApp itself which is arguably an intermediary as it acts as a medium between two or more persons.

To cut a long story short, through both these judgments, the courts have rightly recognised that the admin of a WhatsApp group has limited control and her functions are on par with that of any other member.

According to the courts, the only privilege that an admin enjoys is to add or delete members from the group, apart from creating the group itself.

However, in many cases, the current admin may not even be the person who created the group. For instance, Junaid Khan, an admin of a WhatsApp group was arrested and charged with sedition as well as other offences under the IT Act. However, Junaid had not created the group but became the admin by default when the original creator exited. While the judgment of the High Court does not explicitly recognise that many admins may even be inactive members, it is still clear that Bombay High Court’s interpretation of the law must come to the rescue of those like Junaid, who are victims of a negligent police force.

In fact, the law as interpreted by the Bombay High Court must equally protect Junaid as well as an active admin who created the group. Unfortunately, the issuance of unreasonable threats to admins via legally tenuous advisories only suggests that an admin is more powerful in the eyes of the police than she is in the eyes of her own members.

Of course, there are limits to what one can say on a public platform and there must be consequences, in certain cases. But a narrowly focussed defamation action against the maker of the statement may be enough to address that mischief. It is high time that law enforcement agencies learn from the above decisions and refrain from making an artificial distinction between the members and the admin and initiating frivolous prosecutions.

Bharat Chugh is a former judge and presently an advocate practicing at the Supreme Court of India. Siddharth Shivakumar is an advocate.