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WhatsApp group admins cannot be held liable for members messages without common intention: Bombay HC

WhatsApp, Threema

The Bombay High Court has held that a WhatsApp group administrator cannot be held liable for objectionable content posted by a group member, in the absence of common intention. This was first reported by LiveLaw.

“A group administrator cannot be held vicariously liable for an act of 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. Common intention cannot be established in a case of Whatsapp service user merely acting as a group administrator,” the Nagpur bench of the court held.

Kishor Tarone, the WhatsApp group admin in question, was charge-sheeted under Section 354A (making sexually coloured remarks), 507 (insulting a woman’s modesty), 107 (abetment) of the Indian Penal Code, and Section 67 of the IT Act (punishment for publishing obscene material online). Tarone had challenged an FIR and charge-sheet against him for not acting against a group member who had posted objectionable remarks against a female member. The woman had argued that Tarone had not removed or deleted the accused member from the group, and did not ask the accused to submit an apology to her.

In our opinion, in the facts of present case, non-removal of a member by administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by administrator.

The court noted, while quashing the chargesheet and FIR against Tarone, that a group admin’s functions are the same as the other members, save for the ability to add or remove members.

A group administrator has limited power of removing a member of the group or adding other members of the group. Once the group is created, the functioning of the administrator and that of the members is at par with each other, except the power of adding or deleting members to the group. The Administrator of a Whatsapp group does not have power to regulate, moderate or censor the content before it is posted on the group.

But, if a member of the Whatsapp group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law. In the absence of specific penal provision creating vicarious liability, an administrator of a Whatsapp group cannot be held liable for objectionable content posted by a member of a group.

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