In August, 2017, Karnataka’s Uttara Kannada district Police arrested the administrator and a member of WhatsApp Group upon sharing a morphed photo of PM Narendar Modi on the group.
In many districts since 2016, police authorities have issued orders stating that WhatsApp admin would be held liable for any objectionable content shared in the group.
Does this executive order pass the test of legality?
The issue first came up for consideration in Delhi High Court in 2016 in the case of “Ashish Bhalla vs Suresh Chawdhary” in which Hon’ble Justice MR. JUSTICE RAJIV SAHAI ENDLAW observed;
“When an online platform is created, the creator, thereof, cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the administrator liable, therefore. It is not as if without the administrator’s approval of each of the statements, the statements cannot be posted by any of the members of the group on the said platform,”.
In simple words, an admin is not liable for any content shared over the group, since he or she does not exercise any control over the sharing of content by members.
The Court clarified this in 2016, but police authorities continued to book people under their respective illegal executive legislations.
In April 8,2020 Maharashtra Cyber Police issued an advisory which was in contravention of the aforesaid judgment and continued to arrest people. The advisory issued has tried to enforce penal provisions on Whatsapp group adminstrators without any statutory basis and against the principles of criminal law.
Again, on 1.03.2021, In the case of Kishor S/o Chintaman Tarone Vs State of Maharashtra, A division bench of Hon,ble Justice Z.A.HAQ AND AMIT B. BORKAR, observed:
“The Administrator of a WhatsApp group does not have 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 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. 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 acting in concert pursuant to such plan by such members of a WhatsApp group and the administrator."
The Court made it clear that acting as an administrator in a Whats App group does not create vicarious liability on the person, since there is no common intention established between the member and the administrator of the group.
On the other hand a member is liable for the post he or she shared, but making an administrator vicariously liable is a far-fetched imagination and without any basis under criminal law.
There is so much fake news, cyber crime, misleading information over social media that it compels executive authorities to curb it especially in times like this when we are facing a pandemic, but curbing free speech and expression through illegal and draconian measures is not a constitutionally right way to do it.
Unreasonable restrictions on freedom of speech and expression over social media will lead a disaster, especially in times like this when we need it the most.
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