Creator/ Administrator of a WhatsApp group can’t be vicariously held liable for any objectionable content posted by a member of the group: Kerala HC
The Kerala High Court ruled that Creator/Administrator of a WhatsApp group cannot be vicariously held liable for any objectionable content posted by a member of the group.
Background
The petitioner created a WhatsApp group by name FRIENDS. Being the creator, he was the Admin. There were two more Admins. The accused posted in the group a porn video depicting children engaged in sexually explicit act. The Ernakulam City police registered crime against the accused for the offences under Sections 67B (a)(b) and (d) of the Information Technology Act, 2000 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 other accused being the Creator of the group and Co Administrator.
Issue raised
whether the petitioner could be vicariously held liable for the act of the accused?
Decision
The single judge bench of Justice Kauser Edappagath noted that the objectionable post in question was posted by the accused and the petitioner was arrayed as the co-accused merely in his capacity as the Creator/Administrator of the group.
The court stated that vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency. Such a liability arises usually because of some or the other legal relationship between the two. This often occurs in the context of civil law. In a criminal context, vicarious liability assigns guilt, or criminal liability, to a person for wrongful acts committed by someone else.
The court further stated that a vicarious criminal liability can be fastened only by reason of a provision of a statute and not otherwise. In the absence of a special penal law creating vicarious liability, an Admin of a WhatsApp group cannot be held liable for the objectionable post by a group member.
The court said that 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. It goes against basic principles of criminal law to hold an Admin liable for a post published by someone else in the group. It is the basic principle of criminal jurisprudence that mens rea must be an ingredient of an offence and both the act and intent must concur to constitute a crime.
The court found it a fit case where the extraordinary jurisdiction vested with the Court under Section 482 of Cr.P.C could be invoked.
For the reasons stated, the court quashed the entire proceedings at the Additional Sessions (Cases Relating to Atrocities and Sexual Violence Against Women and Children) Court, Ernakulam as against the petitioner.
Case title: Manual v/s State of Kerala and Ors.
Citation: CRL.MC NO. 3654 OF 2021
