WhatsApp group admin can't be held vicariously liable for members' posts: Madras High Court

The Madurai Bench of the Madras High Court recently reaffirmed the Bombay High Court’s finding that in the absence of a specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by the groups [R. Rajendran v. Inspector of Police]..Justice GR Swaminathan placed reliance on Kishore v. State Maharashtra to order that an administrator of a WhatsApp group be deleted from the list of accused if it is found that he played no other role in relation to the offensive messages posted on the group. "If the petitioner had played the role of a group administrator alone and nothing else, then while filing final report, the petitioner's name shall be deleted," the Court held.However, if other material is gathered to implicate the petitioner, he shall face the case on merits, the Court said.The order came on a plea by seeking quashing of a first information report (FIR) against the administrator of a group in which certain highly-offensive messages were circulated by a member, which the police claimed would cause ill-feelings between communities..The petition was filed contending that the petitioner was only a group administrator and in no way could be held responsible for messages posted by members on the group.The complainant argued that the petitioner lacked bona fides and there was collusion between the member and the petitioner since he was removed from the WhatsApp group but added back within a few days..However, the Court found the petition premature based on the Additional Public Prosecutor’s submission that the forensic report which would help conclude who posted the objectionable messages, was still awaited..Before disposing of the petition, Justice Swaminathan asked the respondent to bear in mind the judgment of the Bombay High Court in Kishore vs. State Maharashtra where the issue of whether an administrator of WhatsApp group can be held criminally liable for objectionable posts of its member for committing offences was discussed..The Bombay High Court in that judgment, had emphasised that a group administrator has the limited power of removing a member of the group or adding other members of the group, and once the group is created, the functioning of the administrator and that of the members is at par with each other, except the power of adding or deleting members to the group.Therefore, it was held that, “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.”.The Bombay High Court had stated that the creator of a WhatsApp group cannot be expected to presume or have advance knowledge of the members’ criminal acts..In light of the discussion, the Madras High Court directed that if the petitioner played the role of a group administrator alone, then while filing final report the petitioner's name be deleted..Advocate T Lajapathi Roy appeared for the petitioner. The respondents were represented by Additional Public Prosecutor Antony Sahaya Prabahar and advocate G Thalaimutharasu..[Read Order]