The Kerala High Court has held that the creator or administrator (admin) of a WhatsApp group cannot be held vicariously liable for any objectionable content posted on it by any of its members. The court made the ruling recently while quashing a Protection of Children from Sexual Offence Act (POCSO) case lodged against Manual of Cherthala, Alappuzha, an admin of a WhatsApp group, for posting a child porn video on it by one of its members. The court held that “as has been held by both the Bombay and Delhi High Courts, the only privilege enjoyed by the admin of a WhatsApp group over other members is that, he/she can either add or delete any of the members from the group. He does not have physical or any control otherwise over what a member of a group is posting thereon. He cannot moderate or censor messages in a group. Thus, creator or administrator of a WhatsApp group, merely acting in that capacity, cannot be vicariously held liable for any objectionable content posted by a member of the group.” The court further observed that vicarious criminal liability could 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 court said that a WhatsApp admin could not be an intermediary under the IT Act. He did not receive or transmit any record or provide any service with respect to such record. There was no master-servant or a principal-agent relationship between the admin of a WhatsApp group and its members. It went against basic principles of criminal law to hold an admin liable for a post published by someone else in the group.
According to the petitioner, he had created a WhatsApp group called ‘FRIENDS’ and he had made two other persons as admins along with him and one of them had posted a porn video. A crime was registered by the Ernakulam city police against the member under the provisions of the Information Technology Act and also under POCSO and made the petitioner a co-accused.
