An administrator of a WhatsApp group can not be held criminally liable for any objectionable content posted in the group by other members in the lack of a “common intention”, the Nagpur bench of the Bombay High Court has held, Live Law reported on Monday.

The court passed the order quashing a First Information Report filed by a woman who filed  complaint against a WhatsApp group that she was a part of. Alleging that the group’s administrator did not take action against a group member who made objectionable remarks against her, she sued the administrator under Sections 354-A(1)(iv) (making sexually coloured remarks), 509 (word, gesture or act intended to insult the modesty of a woman), 107 (abetment) of the Indian Penal Code and section 67 of the IT 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 (a) 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 court observed.

Alleging that one of the members in the WhatsApp group, of which the complainant is a part of, used filthy or objectionable language against her, she argued that the administrator had neither removed the accused member from the group nor had the admin asked him to tender an apology to her. On the contrary, she said, the administrator had expressed his helplessness in the situation.

To which, the court observed that neither could “Section 354-A(1)(iv) imply vicarious liability” nor could it be said that “the Legislature intended to introduce vicarious liability by necessary implication”. 

The division bench comprising Justices ZA Haq and MA Borkar also remarked that “non-removal of a member by administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by the administrator”.

Further, the bench mentioned that a group administrator has limited powers pertaining to the participation of a member as it has multiple admins and “once the group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding to or deleting members of the group”.

While a group administrator cannot be held liable with the absence of a provision under the IPC, the bench held that any member of the group can be held liable for their objectionable posts or content which is “actionable under the law”.

In March, the Competition Commission of India, the country’s competition watchdog, ordered a detailed probe into the new privacy policy of WhatsApp LLC which is hosted by Facebook Inc. It had introduced a privacy policy in January, which will be implemented from May onwards irrespective of the user’s opinion. Unlike its previous privacy policy implemented in July 2020, the new policy does not give the user an option to opt for any kind of personal data sharing.