Earlier today on 26th April 2021 the Hon’ble Nagpur bench of the Hon’ble Bombay HC in the instant case of Kishor Tarone versus. State of Maharashtra & Anr held that “a WhatsApp group admin cannot be held liable for obnoxious content posted by any member of the group, in the absence of common intention”.
The Hon’ble Court while hearing the parting in the instant matter also observed that purely acting as an admin of a group on the messaging app “WhatsApp”, would not amount to ‘common intention’ as the administrator cannot control the content posted by the members of the group before it is posted on the group.
Additionally while proceeding in the present matter the Hon’ble division bench also opined and stated that “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 a common intention or prearranged plan acting in concert under 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.”
Subsequently, the Hon’ble division bench while passing the order in the instant matter quashed an FIR and subsequent charge sheet against a WhatsApp group admin accused under section. 354-A(1)(iv) (making sexually colored remarks), section. 509 (Word, gesture, or act intended to insult the modesty of a woman), section. 107 (Abetment of a thing) of the Indian Penal Code, 1860 (hereinafter referred to as “IPC, 1860”) and section 67 of the Information Technology Act, 2000 (hereinafter referred to as “IT Act, 2000”) for showing his helplessness in acting against the group member who had made unpleasant remarks against a female member.
Further, the woman against whom the unpleasant remark was made on the WhatsApp group argued that despite the member using filthy language against her on the WhatsApp group, the admin had not taken any action against the member. He had neither removed nor deleted the accused from the WhatsApp group.
Furthermore, it is claimed by the women that the admin had not asked the accused to submit an apology to her, on the contrary, he expressed his helplessness.
Nevertheless, after hearing both the parties in the instant case the Hon’ble Court held that section 354-A(1)(iv) of IPC, 1860 does not indicate vicarious liability, nor could it be said that the Legislature intended to introduce vicarious liability by necessary implication.
However, the Hon’ble court said that “after considering the facts and circumstances of the present case, the Hon’ble court believes, that non-removal of a member by the admin of a WhatsApp group or failure to seek request for forgiveness from a member, who had posted the unpleasant remark, would not amount to making sexually colored remarks by the administrator of the WhatsApp Group.”
Significantly, the Hon’ble bench while pronouncing the Judgement in the instant matter held that “members of these WhatsApp groups can be held liable for their posts, and there is no provision in the IPC, 1860 for holding a group admin vicariously liable for the actions of the group members”.
In continuation, the Hon’ble court also remarked that “the Admin of the WhatsApp group does not have the 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 a 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”.
Finally, the Bench also noted that a group administrator has limited powers of adding and removing a person from the group. Every WhatsApp chat group has one or more group administrators, who can control the participation of members of the group by deleting or adding members of the group.
While concluding the Hon’ble bench also stated that “Once the group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding or deleting members to the group.”
Case: Kishor Tarone versus. State of Maharashtra & Anr.