Quashing a a case of sexual harassment lodged against a 33-year-old man, the Nagpur bench of the Bombay High Court has held that an administrator of a WhatsApp group cannot be held criminally liable for an objectionable post by another member of the group. A division bench headed by Justice Z A Haq and A B Borkar noted that an administrator of a WhatsApp group has only limited powers of adding or deleting members to the group and does not have the power to regulate or censor the content posted in the group.
The order was passed on an application filed by Kishor Tarone (33), the administrator of a WhatsApp group. He sought to quash the case registered against him in Gondia district in 2016 under Sections 354-A(1)(iv) (making sexually coloured remarks), 509 (insulting the modesty of a woman) and 107 (abetment) of the IPC and Section 67 (publishing or transmitting obscene material in electronic form) of the Information Technology Act. ‘A group administrator cannot be held vicariously liable for an act of a 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 member of a Whatsapp group and the administrator. Common intention cannot be established in a case of Whatsapp service user merely acting as a group administrator,’ the bench said.
According to the prosecution, Tarone failed to take action against a member of his WhatsApp group who used filthy and indecent language against a woman member in the group. The woman argued that despite the member using filthy language against her, the administrator had not taken any action against the member. He had neither removed nor deleted the accused from the Whatsapp group. Furthermore, the admin had not asked the accused to submit an apology to her, on the contrary, he expressed his helplessness, she argued. The bench in its order said the crux of the matter is whether an administrator of a WhatsApp group can be held criminally liable for objectionable posts made by a member of the group. ‘Once the group is created, the 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 court said. It is the responsibility of each and every member to make the place a better place for all.