In a welcome move, the Delhi High Court recently
ruled that Whatsapp group administrators are not responsible for the
content posted on the group by other members. The judgment follows an
increasing attempt to impose responsibility on group administrators
throughout India, evidenced by several arrests made of administrators
for objectionable posts since the last year. The effect of this
judgement, unfortunately, is limited to the territorial jurisdiction of
the Delhi High Court. Hopefully, this judgement will encourage other
states to take a similar approach.
The Delhi High Court ruling
In Ashish Bhalla v. Suresh Chaudhary, the
Whatsapp group administrator was made party to a suit for a defamatory
post made on the group. The Court held that the administrator could not
be held liable for defamatory statements made on the group. It is not
that without the approval of the administrator, the members cannot make
posts on the group. The Court observed that holding the administrator
responsible for such content was the equivalent of making the manufacturer of the newsprint on which defamatory statements are published liable for defamation.
Note
that in this case, the argument that the administrator had failed to
remove the members making the post was not addressed, since the argument
was not formally pleaded in the case. Moreover, the post in question
was found to not be defamatory at all, and to the contrary, a compliment
to the plaintiff. It will have to be seen whether the courts will
impose any liability on administrators under different circumstances-
such as when the post is patently illegal, and whether the administrator
has any obligation to remove such a member of the group.
Imposing greater liability on administrators
In
the last one or two years, several attempts have been made to impose
responsibility on Whatsapp group Administrators. One example is a District Magistrate’s directive in Jammu and Kashmir in
April, 2016. All administrators of Whatsapp news groups were made
responsible for the posts made, including for irresponsible remarks
which led to untoward incidents. Another such directive was issued by
the Jharkhand government
on October, 2016, which directed group administrators to immediately
remove members posting incorrect, misleading or antisocial posts on the
group. Administrators were liable for any such posts on their group.
Further, administrators were to be acquainted with every member of the
group.
Arrests have also been made of group administrators, such as the arrest of one administrator for a post hurting religious sentiment, and another arrest for objectionable video clips on
the group. They are to be tried under laws like Section 67 of the IT
Act, 2000 (publication of obscene material), and Section 153A (promoting
enmity) read with Section 34 of the IPC, 1860.
Clearly,
the Jharkhand and J&K directives impose too huge a burden on the
administrators. Moreover, the administrators are being prosecuted under
Section 34 of the IPC(Acts done in furtherance of common intention). It
is very dangerous if administrators are assumed to have a ‘common
intention’ with the member making an objectionable post, merely because
he is the administrator, or because he failed to remove that member from
the group.
An administrator is not an intermediary
The
mistake by these actions of the authorities is in trying to impose a
similar level of responsibility as intermediaries on Whatsapp group
administrators. There is a huge difference between the two, and
therefore there should be a difference in the duties imposed on each.
Failing to do so will effectively strangle the free creation of and
participation in Whatsapp groups, or any other such social media groups.
Under
the IT Act, an intermediary is any person who, on behalf of another
person, receives, stores, or transmits an electronic record to another
person. In Whatsapp groups, this task is clearly performed by Whatsapp
itself, and not the administrator. In fact, the administrator has
absolutely no control over the messages sent or received in the group.
Holding a group administrator to all the due diligence requirements of
an intermediary, therefore, imposes an unfair burden on them.
Alternatively, it may be argued that since a group administrator enables communication between
various persons, who sometimes are not on each other’s contact lists,
an administrator acts indirectly as an intermediary. Even so, the
administrator would be protected under Section 79 of the IT Act, which
grants the intermediary immunity w.r.t third party content hosted by
him.
Administrators have limited control over posts
Note
that the Delhi High Court compared administrators to the manufacturer
of a newspaper, and not to the editor. This underlines the difference in
the level of control that an administrator has over the content posted.
The only control an administrator can exercise over the group is to
remove members from it.
The
problem with making this an obligation is that the administrator is
forced to monitor and police the content posted on the group. As in the
case of intermediaries, this imposes too huge a responsibility on the
administrators. Even in the case of intermediaries, the obligation to
remove content within 36 hours was made subject to receiving a court order to
do so. When intermediaries are being freed of the obligation to police
content, the same obligation should not be imposed on administrators.
Should liability be imposed on the administrators?
Imposing
the obligations of an intermediary on a group administrator is clearly
too much of a burden. Consider cases where the administrators are not
even active on the group, and cases where a person doesn’t even know
that he is the administrator of the group. For example, when an
administrator leaves the group, Whatsapp randomly assigns the next
administrator. In cases where the administrator has participated in the
creation or publishing of an illegal post, he should be liable, but on
the grounds of committing/ abetting the offence in question, and not
merely because he is an intermediary.
The
issue of rumours and other illegal activity on social media is a
problem that needs to be addressed. However, an inadequate understanding
of the technology behind social media, and the lack of any laws
governing it, have led to these extreme measures being taken to curb its
misuse. There is an urgent need to prevent this. Some initial steps are
the enactment of a law on social media crimes and better educating the
authorities dealing with cybercrimes.
The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.
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