Administrators of WhatsApp groups cannot be held liable if members post objectionable material, the Kerala high court ruled on Thursday in response to a petition by a group administrator against a case he is facing over a pornographic video clip of minors posted on the group.
The petitioner created the group comprising his friends and the video clip was posted on it in March 2020. A case was subsequently filed under the Information Technology (IT) Act and the Protection of Children from Sexual Offences Act. The petitioner was named the second accused in the case.
Setting aside the proceedings against the petitioner, a single judge bench of justice Kauser Edappagath said administrators can remove members from groups but they do not have any control over what a member is posting.
“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 judge said.
The bench added merely acting in the capacity of creator or administrator cannot be grounds for an offence and the administrator cannot be an intermediary under the IT Act.
The bench further noted: “… 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.”
In December, the Madras high court also said a group administrator cannot be made liable for a member’s post while quashing a case for circulating an objectionable mail intended to create animosity between communities.
