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IN THE HIGH COURT OF KERALA AT ERNAKULAM
KAUSER EDAPPAGATH, J.
Manual S/o Boban – Petitioner
Versus
State of Kerala – Respondent
Crl. M.C. No. 3654 of 2021
Decided On : 23-02-2022
Constitution of India, Art. 226 – WhatsApp groups – Objectionable post – Is the Creator or Administrator of a WhatsApp group criminally liable for offensive content posted by a group member.
Finding of the Court:
Admittedly the objectionable post in question was posted by the accused No.1 and the petitioner was arrayed as the co-accused merely in his capacity as the Creator/Administrator of the group – 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. 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 – Since the basic ingredients of the offences alleged are altogether absent as against the petitioner -Court of the view that it is a fit case where the extra ordinary jurisdiction vested with this Court under Section 482 of Cr.P.C could be invoked.
Result: Allowed
ORDER :
1. Dated this the 23rd day of February, 2022 is the Creator or Administrator of a WhatsApp group criminally liable for offensive content posted by a group member?
2. Gone are the days, when we used short message service or a formal website chat-box to communicate with our kith and kin. They were replaced by personalised messaging apps like WhatsApp, Facebook Messenger, Viber etc. Launched in 2009, WhatsApp is a relatively latecomer to social media. Yet, it is reported to be growing faster than other social media platforms especially in recent years. According to the official note of WhatsApp, it serves more than 2 billion people in over 180 countries, with over a billion daily active users. Recent data shows WhatsApp topped the list of the most popular global mobile messaging apps in 2021. Currently, more than 100 billion messages are sent each day on WhatsApp, making it the most active messaging app in the world. This Android based multiplatform messaging app lets its users to make video and voice calls, send text messages, share their status, photos, videos and more - with no fees or subscriptions.
3. WhatsApp has proved its relevance in exchange of information very fast. One of the unique features of this application is that it also enables formation of groups of people to chat and call thereon. WhatsApp groups bring together several people on a common platform, thereby enabling easier communication amongst them. The person who creates WhatsApp group is called Administrator (Admin) of the group. He may also make other members of group as Group Admin. These Admin have certain powers bestowed upon i.e. adding/removing a member etc. Due to lack of moderation of these groups, the members therein are at almost free reign to post/share any kind of data that they wish in terms of messages, voice notes, videos, songs etc. Many members of a WhatsApp group may put objectionable contents. The legal consequences and potential liability of the Administrator, stemming from such an objectionable post has come up for consideration in this Criminal Miscellaneous Case.
4. The petitioner herein created a WhatsApp group by name FRIENDS. Being the creator, he was the Admin. There were two more Admin; the accused No. 1 and CW-4. On 29.03.2020 at 08.37 p.m. the accused No. 1 posted in the group a porn video depicting children engaged in sexually explicit act. On 15.06.2020, the Ernakulam City police registered crime against the accused No. 1 as Crime No. 864/2020 for the offences under Sections 67B (a)(b) and (d) of the Information Technology Act, 2000 (for short “the IT Act”) and Sections 13, 14 and 15 of the Protection of Children from Sexual Offence Act, 2012 (for short “the POCSO Act”). Later on, the petitioner was arrayed as the accused No. 2 being the Creator of the group and Co-Administrator. After investigation, final report was filed and the case is now pending as S.C. No. 61/2021 at the Additional Sessions (Cases Relating to Atrocities and Sexual Violence Against Women and Children) Court, Ernakulam. According to the petitioner, even if the entire allegations in the FI statement or final report together with all the materials collected during the investigation are taken together at their face value, they do not constitute the offences alleged. It was in these circumstances this Crl. M.C. has been filed invoking Section 482 of Cr.P.C. to quash all further proceedings against the petitioner.
5. I have heard Sri. Anil Kumar M. Sivaraman, the learned Counsel for the petitioner and Smt. Pushpalatha, the learned Senior Public Prosecutor.
6. Admittedly the objectionable post in question was posted by the accused No. 1 and the petitioner was arrayed as the co-accused merely in his capacity as the Creator/Administrator of the group. The question is, whether the petitioner could be vicariously held liable for the act of the accused No. 1?
7. Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine
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