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Implications of Whatsapp’s “Restricted Groups”, and Intermediary Liability

In a new beta version which is being rolled out, Whatsapp is giving more power to administrators of groups, according to WAbetainfo, which tracks Whatsapp beta releases for future updates. The features:

– An admin can restrict all members (except the admins) from sending messages to the group. The group will then be in “announcement mode” with only admins able to converse.
– In a restricted group, the user will have to message the admin, which will then have the power to approve messages; that is, the messages will be moderated.
– Any admin of a group can enable the restrictions, and the settings can be changed only every 72 hours.
– A hierarchy is being established, with a group creator having full control over a group, and admins are unable to delete them.

While the environment that this is happening in is essentially to allow group creators to exercise more control over their groups, remember that while great power comes with great responsibility, it also entails greater accountability. Giving Whatsapp admins more power means that Law Enforcement Agencies can hold them accountable for more: remember that last year, the District Magistrate of Kupwara had directed all Whatsapp Admins to register, and said that they would be liable for all comments on the groups:

Earlier this year, a Police Chief and a District Magistrate also issued an order saying that “There are several groups on social media which are named on news groups and also groups with other names which are propagating news and information which is not authentic. These are being forwarded without cross-checking”, and “In the event of inaction from the group admin, he or she will be considered guilty and action will be taken against the group admin”.

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Intermediary liability?

Section 79 of the IT Act protects intermediaries, such as administrators of Whatsapp groups, on the grounds that they have no “actual knowledge” of the content. For example, an intermediary like YouTube has no actual knowledge of the content of hundreds of hours of video being uploaded every hour; an ISP has no actual knowledge of illegal content being sent through their pipes. However, give Whatsapp admins the power to move to a restricted mode, and allow them the ability to control the posting of content on a group, and you remove the safeguard put in place.

However, it is likely that in India, group admins might still be protected. The watering down of Section 79 of the IT Act meant that the onus on intermediaries to also be adjudicators of legality of content was removed. Actual knowledge had to be affirmed via a court order asking for a takedown.

The question remains, though, that whether by approving the publishing of a post, the Whatsapp group admin becomes an editor, and is thus complicit in the act of dissemination of information. Outside of India, there might remain liability concerns with giving group administrators such powers.

If group admins were also allowed to delete posts – they’re not – there would have been additional concerns, where Law Enforcement Agencies can harass group admins for not deleting certain content. With great power comes great complexity.

Of course, from a Whatsapp perspective, the idea here is probably to enforce a “time-out” for the group: to limit posts if the conversations are being overwhelmed by fights and nastiness.

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Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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