WhatsApp group admin can’t be held liable for member’s post Bombay HC
WhatsApp group admin can’t be held liable for member’s post
Monday, April 26, 2021
WhatsApp group admin can’t be held liable for member’s post The
Nagpur bench of the Bombay High Court
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 Nagpur bench of the Bombay High Court held that a WhatsApp group administrator
cannot be held liable for objectionable content posted by a member of the
group, unless it is shown that there was a “common intention” or “pre-arranged
plan” to act in concert between the two.
The petitioner, Kishor Tarone, had challenged the FIR and
chargesheet filed before the Chief Judicial Magistrate at Gondia.
The accusations against Tarone were 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.
A division bench of Justice Z A Haq and Justice Amit B
Borkar passed the judgment on a criminal
application by one Kishor Chintaman Tarone (33), through advocate Rajendra M
Daga, challenging the FIR and chargesheet registered against him at
Arjuni-Morgaon police station and sought to set aside the same.
Bench made following observations on the role of
administrator –
Once the group is created, functioning of the administrator
and that of the members is at par with each other, except the power of adding
or deleting members to the group.
The administrator does not have power to regulate, moderate
or censor the content before it is posted on the group. But, if a member of the
group posts any content, which is actionable under law, such person can be held
liable under relevant provisions of law.”
Commenting on a criminal liability of a group admin for
members’ posts, the bench held, “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, unless it
is shown that there was common intention or pre-arranged plan acting in concert
pursuant to such plan by the member and the 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.”
“common intention” cannot be established in case the user is
“merely acting as a group admin”.
“In our opinion, in the facts of present case, 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.”
Setting aside the FIR and chargesheet, the bench held,
“Taking an overall view of the matter, we are satisfied that even if
allegations in the FIR are accepted as correct, and considering the material in
the form of charge-sheet on its face value, it does not disclose essential
ingredients of offences alleged against the applicant. We are therefore
satisfied that continuation of present proceedings against the applicant would
amount to abuse of process of Court.”
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.
Case Details –
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 573 OF 2016
Kishor Chintaman
Tarone, Vs The State of Maharashtra,
Judges : Z.A.HAQ AND AMIT B. BORKAR, JJ.
Advocate Rajendra Daga appeared for Tarone
Additional Public Prosecutor TA Mirza represented the State.
The court passed the following order –
The First Information Report No.36 of 2016 and consequent charge-sheet bearing No. 26 of 2016 for the offences punishable under sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and Section 67 of the Information Technology Act, 2000 and further proceedings of Regular Criminal Case No.177 of 2016 pending on the file of Judicial Magistrate First Class, Arjuni-Morgaon, District Gondia, are quashed and set aside.
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Tags – WhatsApp Administrator Content Responsible Not liable
Nagpur Bombay High Court
