IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 23^RD DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 CRL.MC NO. 3654 OF 2021 AGAINST SC 61/2021 OF ADDITIONAL SESSIONS (CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN), COURT ERNAKULAM PETITIONER/ 2 n d ACCUSED:

MANUAL AGED 22 YEARS S/O. BOBAN, PUTHENPURAKKAL HOUSE, ARTHUNGAL, CHERTHALA, ALAPPUZHA.

BY ADVS.

ANIL KUMAR M.SIVARAMAN C.CHANDRASEKHARAN RESPONDENT:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682031.

2 THE INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM -682031.

SMT M K PUSHPALATHA -SR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.02.2022, THE COURT ON 23.02.2022 PASSED THE FOLLOWING:

“C.R.”

O R D E R Dated this the 23^rd 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 multi- platform 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/s 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 Admins; the accused No.1 and CW4. 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 SC 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 durin