On February 25, 2021 the Press Information Bureau released some telling statistics to go along with the recently announced Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules 2021") by the Ministry of Information. According to it, Indians are using these platforms in a very significant way and in numbers which are unmatched anywhere else in the world; Some portals, which publish analysis about social media platforms and which have not been disputed, have reported the following numbers as user base of major social media platforms in India1:
- WhatsApp users: 53 Crore
- YouTube users: 44.8 Crore
- Facebook users: 41 Crore
- Instagram users: 21 Crore
- Twitter users: 1.75 Crore
In 2021, in a world driven and shaped by the pandemic, our smartphones have become our life; every facet of it is carried out online at an unprecedented speed, so much so that it has left the legal field with minefield of decisions to make which will shape how the world moves forward with this Age of Information. The United States Court of Appeal for the Second Circuit summed it up quite eloquently, saying "they contain combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually and sometimes even sexually, in the owner's life."2
One of the biggest issues that the proliferation of online media and social networking sites has given rise to is one concerned with the liability (vicarious liability) of a WhatsApp Group Administrator (herein referred to as the "Admin") for the content posted by the members of the Group he is the Admin of.
In April 2016, the Govt. of Jammu and Kashmir issued directives vide a circular to regulation communication on the instant messaging service, WhatsApp. It called for the following actions to be taken:
- It mandated the administrators of new WhatsApp groups to register their chat groups with the district social media centre;
- The circular also designated an informatics officer to keep vigil on the groups and placed the liability on the group administrator for any irresponsible remarks or details made by any member in those groups.
Soon after, the Jharkhand Govt. also issued similar directives and advisory notices for administrators of social media groups to remove persons who share incorrect or misleading information, or anything seditious in nature, and report this to the concerned authorities. The advisory also prescribed punishment for both the violator and the social media group administrator in cases of the failure to report such information.
The issue arising out of the circulars was that the wording of both was open to interpretation; such interpretation gave immense power to nefarious people to curtail freedom of speech that the Constitution has enshrined as a fundamental right. The lack of association of the circulars with the statutory provisions contained within the Indian Penal Code also made it difficult to navigate around.
The Delhi High Court in its judgement in the case of Ashish Bhalla v. Suresh Chawdhury and Ors.3 helped clear the air on the situation. The facts of the case were as follows - The instant proceedings were initiated by Ashish Bhalla, who was associated with a real estate firm, against Suresh Chawdhury ("defendant no. 1") and others including Vishal Dubey ("defendant no. 3"), who apparently was the administrator of a WhatsApp group chat. The plaintiff in the proceedings claimed relief from the court against all the members in the WhatsApp group chat from posting any messages against him and also sorted monetary damages as compensation for the losses suffered by him due to the messages posted in that WhatsApp chat group. The plaint (written document filed before a judicial body about the legal action being brought against any person) alleged that various buyers of a particular housing project posted various messages against the plaintiff on a WhatsApp group chat since they didn't receive possession of apartments on time. The plaintiff stated that those messages were defamatory and maligned his image even when he was no longer a part of that particular housing project.
The Court, rejecting the complaint, stated that "I am unable to understand as to how the administrator of a group can be held liable for defamation, even if any, by the statements made by a member of the group. To make an administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation." The court also observed that an administrator of a group chat on an online platform can only advise its members to abstain from posting objectionable content, since it is not the case that without the approval of the group administrator statements cannot be published/posted by members.
In Kishore Tarone v. State of Maharashtra and Anr.4 the Bombay High Court was tasked with deliberating on the present issue. The facts of the case were - That the applicant (Accused No. 2) is an administrator of a WhatsApp group, that accused No.1 used filthy language against the non-applicant No.2 on the WhatsApp group of which applicant is an administrator, that despite accused No.1 using filthy language against the non-applicant No.2, the applicant had not taken any action against the accused No.1. It is alleged that the applicant being administrator had not removed nor deleted accused No.1 from the WhatsApp group. It is further alleged that the applicant had not asked accused No.1 to submit apology to the non-applicant No.2, on the contrary, the applicant expressed his helplessness, thus resulting in the present case.
The crux of the issue involved was whether an administrator of a WhatsApp group can be held criminally liable for objectionable post of its member for committing offences punishable under
- Section 354A(1)(iv) of the Indian Penal Code - sexual harrassment;
- Section 509 of the Indian Penal Code - insulting the modesty of a woman;
- Section 107 of the Indian Penal Code - Abetment of a thing; and
- Section 67 of the Information Technology Act, 2000 - Publishing or transmitting of obscene material in electronic form.
The Court, holding it in negative, stated the following:
"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. A group administrator cannot be held vicariously liable for an act of 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. 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."
The Court proceeded to conclude its judgement, stating that"On careful consideration of the allegations in the First Information Report and material produced in the form of charge sheet, we find that there is no allegation or material that the applicant had either published, transmitted or caused to be published or transmitted in electronic form any material, which is lascivious or appeals to prurient interest or its effect is such as to tend to deprave and corrupt persons who are likely, to read, see or hear the matter contained or embodied in it."
1 Press Information Bureau - https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749
2 United States v. Adamou Dijibo, 151 F. Supp 3d 297 (2015).
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