WhatsApp group administrator cannot be held vicariously liable for content posted by group member

WhatsApp group administrator cannot be held vicariously liable for content posted by group member

Kishor Tarone Vs State of Maharashtra

Bombay HC, Nagpur Bench

01/03/2021

CRIMINAL APPLICATION (APL) NO. 573 OF 2016

About/from the judgment:

A WhatsApp group is such that its administrator does not have power to regulate, moderate or censor the content before it is posted on the group, the Court noted.

The administrator of a group on messaging application, WhatsApp cannot be held liable for objectionable content posted by members of the group, the Court ruled

A WhatsApp group is such that its administrator does not have power to regulate, moderate or censor the content before it is posted on the group, the Court opined.

If a member of the Whatsapp group posts any content, which is actionable under law, such person who puts such posts can be held liable under relevant provisions of law, the Court clarified.

"(But) In the absence of a specific provision in law creating vicarious liability, an administrator of a Whatsapp group cannot be held liable for objectionable content posted by a member of a group," the Court underscored.

In the absence of a specific provision in law creating vicarious liability, an administrator of a Whatsapp group cannot be held liable for objectionable content posted by a member of a group. - Bombay High Court

The Court, therefore, quashed the First Information Report (FIR), chargesheet and further proceedings arising against the administrator of a WhatsApp group who was charged with offences under Sections 354A (passing sexually coloured remarks) and 509 (insult modesty of woman) of the Indian Penal Code and Information Technology Act and proceedings arising from them.

The petitioner, Kishor Tarone, had challenged the FIR and chargesheet filed before the Chief Judicial Magistrate at Gondia.

The accusations against Tarone was that as a WhatsApp group administrator, he had not removed the primary accused of the case from the group nor asked the accused to submit an apology for using filthy language against the complainant, a female member of the group.

The Court observed that 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 between the members and administrator.

"When a person creates a Whatsapp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group," the judgment stated.

From the facts of present case, the Court opined that even if the allegations in the FIR and the material in the charge-sheet are considered as true, the ingredients of the offence alleging passing of sexual remarks under the Indian Penal Code are not fulfilled.

"When a person creates a Whatsapp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group."

"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 stated and quashed and set aside the proceedings against the petitioner.

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