The Kerala High Court on Thursday said that a WhatsApp admin or creator is not criminally liable for offensive content posted by a group member. Justice Kauser Edappagath observed that there is no law by which an admin of any messaging service can be held liable for a post made by a member in the group.
In light of this observation, the high court quashed the entire proceedings initiated against a WhatsApp admin under the Protection of Children against Sexual Offences (POCSO) Act and the IT Act.
The Kerala High Court in its 14-paged order ruled,
1) A WhatsApp admin cannot be an intermediary under the Information and Technology Act, 2000.
2) He does not receive or transmit any record or provide any service with respect to such record.
3) There is no master-servant or a principal-agent relationship between the admin of a WhatsApp group and its members.
4) It goes against basic principles of criminal law to hold an Admin liable for a post published by someone else in the group.
5) It is the basic principle of criminal jurisprudence that mens rea (intent to commit a crime) must be an ingredient of an offence and both the act and intent must concur to constitute a crime.
Vicarious liability can be attracted only by way of a special law
Justice Kauser Edappagath said vicarious liability can be attracted only by way of a special law. In the absence of a special law or statute creating such vicarious liability, an admin cannot be held responsible for messages posted by other members of the group, the high court said.
It is noteworthy, that the high courts of Bombay, Delhi, and Madras have given similar judgments.
The high courts of Bombay and Delhi have held that the only privilege enjoyed by the admin of a WhatsApp group over other members is that, he 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, the high court order read.
"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 judge added.