Every few months, the news comes along that a district magistrate (DM) somewhere in the country has issued an order that says admins of WhatsApp groups can be held criminally liable for posts on the groups.
Sometimes, even without these orders from a DM, arrests take place, as has been seen in Uttar Pradesh, Maharashtra, Tamil Nadu, Karnataka, and Kerala.
In an ironic twist, several WhatsApp forwards have done the rounds over the last few years warning that the admin of a group can get arrested if people share political messages or updates about COVID-19.
Opinion among legal experts has also been somewhat divided on the issue in the past.
Cyber law specialist Pavan Duggal has previously told The Quint he believes a WhatsApp admin can be held responsible as they are supposed to "exercise diligence" to ensure members on a group do not post anything that violates the law.
On the other hand, Internet Freedom Foundation executive director Apar Gupta and Abha Singh, a former civil servant and now practising lawyer, have explained in the past that this means you're saying the admin has advance knowledge of criminal acts of another person, which is absurd.
Even deletion of an objectionable post can potentially amount to destruction of evidence, so holding them criminally liable for not deleting an objectionable post is also a tricky thing to do, Singh had explained.
The Delhi High Court had as far back as 2016 held that a WhatsApp admin cannot be held vicariously liable for defamatory statements by other people on the group. However, arrests for other more serious offences have continued to take place over the years.
A recent decision by the Kerala High Court, dealing with a POCSO (Protection of Children From Sexual Offences Act) case, appears to have finally put the seal on this debate, and giving a sense of security for WhatsApp admins that they can't be punished for the stupidity of others on their groups (something we've all seen in our own WhatsApp groups) or even criminality, unless they were involved in the actual offence.
No General Concept of Vicarious Criminal Liability
The term 'vicarious liability' is very familiar to lawyers acting in civil matters, where there are many circumstances where a person can be held liable for the actions of someone else even if they haven't done anything wrong.
For instance, an employer can be held responsible for the actions or negligence of an employee acting in the course of business – which is for instance how you can sue a major multinational company for a gas leak, or a defective product.
In criminal law, there isn't a general concept of vicarious liability, though there are several statutory provisions that create vicarious criminal liability.
For example, Section 149 of the Indian Penal Code (IPC) which makes every member of an 'unlawful assembly' responsible for actions of the other, or provisions of the Income Tax Act or Companies Act which make people in charge of a company liable for its actions.
The Kerala High Court found it was not dealing with such a situation in the case before it, Manual vs State of Kerala, in which it delivered its order on 23 February.
The petitioner who had approached the high court had created a WhatsApp group titled 'FRIENDS,' which had himself and two others as admins. On 29 March 2020, one of those other admins posted a video of child sexual abuse, which led to a First Information Report (FIR) against that person under provisions of the Information Technology (IT) Act and the POCSO Act.
The petitioner was also added as an accused in the case later on because he had created the group and was an admin of it. No other allegation of his involvement was made in the case.
After reviewing the Supreme Court judgments on vicarious criminal liability that have clarified that it can only be imposed by statute, and not as a general principle, the court then looked at the IT Act and POCSO provisions invoked in the case to see if they created any such liability.
The high court eventually held that:
"There is no law by which an Admin of any messaging service can be held liable for a post made by a member in the group. A WhatsApp Admin cannot be an intermediary under the IT Act. He does not receive or transmit any record or provide any service with respect to such record. There is no master-servant or a principal-agent relationship between the Admin of a WhatsApp group and its members."
Much as Apar Gupta and Abha Singh had argued in the past, the Kerala High Court held that holding a WhatsApp group admin liable for a post published by someone else "goes against basic principles of criminal law," as mens rea or intent has to be there for a criminal offence.
As there were no specific allegations against the petitioner that he had shared the pornographic video in question or any other images/video of child sexual abuse, or had been part of any pre-arranged plan to share the video, the Kerala High Court quashed the FIR against him under Section 482 of the Code of Criminal Procedure.
When Can an Admin Be Held Responsible?
A crucial factor in the Kerala High Court's decision was a Bombay High Court judgment from 2021, Kishor s/o Chintaman Tarone vs State of Maharashtra,
This Bombay High Court judgment had also been followed by the Madras High Court in a December 2021 judgment, R Rajendran vs Inspector of Police, where it ordered the police to remove an admin's name from an FIR.
At the same time, both that original Bombay High Court judgment and the Madras High Court decision point to the circumstances when an admin can in fact be held liable.
The Bombay High Court had noted that an admin can't be held vicariously liable for posts by another person "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."
The mere fact of being an admin doesn't point to common intention or a pre-arranged plan, but if the admin was aware of the poster's intent to share the objectionable content, then these high court decisions will not help the admin.
The Madras High Court decision looked at whether it could be said that an admin has 'abetted' a criminal offence. Once again, the mere fact of being an admin cannot be said to satisfy the requirements of Section 107 of the IPC, which defines abetment as intentional instigation, conspiracy, or aiding a crime through an action or omission.
However, there can no doubt be situations where an admin has through previous comments either encouraged the sharing of an illegal post, or may have been involved in a plan to share some objectionable content.
In these cases, the admin could be made an accused using Section 34 of the IPC (common intention) or Section 107 (abetment) or even Section 120B (criminal conspiracy).
However, without that specific knowledge and involvement, admins should now be able to breathe easy and not face criminal consequences – and if they are in fact tagged in these criminal cases, can get them quashed by approaching their relevant high court.
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