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No Law To Make Whatsapp Group Admins Liable For Messages By Group Members
"No amount of convoluted legal interpretation will make a WhatsApp group admin an intermediary"
The office of Special Inspector of police Maharashtra Cyber issued an advisory directing a warning that any admins of WhatsApp group along with users might/could get punished for posting objectionable content on WhatsApp groups. Various cites are mentioned in the advisory like Sections 153A, 153B, 295A, 505 and 188 of IPC, Section 54 of the Disaster Management Act, Section 68 of the Bombay Police Act, 1951 and Section 144 and Section 144(3) of the CPC, 1973.
Prior to the advisory, even some media reports covered that part of liability which the admins and uses withhold themselves with, and also reports from a few experts who had claimed that these admins are intermediaries and have to comply with the guidelines and rules applicable to intermediaries to claim safe-harbour protection.
Communication of disinformation is one of the major issues felt across the world. However, the advisory issued be Maharashtra Police has tried to slap provisions on these admins without any statutory basis and in violation of basic principles of Criminal law.
A group admin has limited lower of removing a user and adding another. However, if a member is found with any objectional content sharing, he/she can be held liable and the same applies even when if a group created for sharing of the objectional content, everyone who is a member is lying under the liability. However, there is no law where a admin can be held liable for objectional shared content by a member of a group, as there is no statutory law for the same and no advisory or Order by any body except when Judiciary passes it, is illegal. in the present adversary, no statutory law of holding an admin liable has been mentioned.
Even Section 68 of Bombay Police Act, 1951 only states that all persons shall be bound to conform to reasonable direction of a police officer given in fulfillment of his duty under this Act. There is no mention of having power of forming any provision or set of directions for any admin of any social media groups under IPC with non-compliance. Also, as per Section 140 of the same Act, the maximum punishment for contravention is only a fine of Rs. 500 under Section 68 of the same Act. Also, no liability can be charged against the admin.
Also, admins can't be held liable under vicarious liability for any Act of his member of the group as there is no master- servant or principal-agent relationship between them, even if it is a defamatory case. The Apex court held this in cases of Ashish Bhalla v. Suresh Chawdhury and in R. Kalyan v Janak C. Mehta.
Even in the "intermediary" with respect to Section 2(w) of IT Act, 2000 was coined in order to recognise the liability of an admin for the above mentioned that it is observed that the admin can't censor or moderate the messages of the group, he can't receive or translate any message and therefore doesn't fulfill the section 2(w) for the said Act and therefore not liable under the intermediary provision, though WhatsApp as a service and communication providor can be held liable under the intermediary provision, which is also considered as an intermediary.
WhatsApp admins are just basic creators of groups and their powers are very limited. Police being ignorant of both facts and laws have been a major cause to the admins of WhatsApp group a and have made them liable for something they have not committed. In this situation, where our country is fighting a pandemic, sending or communicating objectional and untrue information is a general threat at large which should be taken care of with utmost severity and carefulness. Being a citizen of a democratic country, with the right to freedom of speech does not mean that it can be misused. It has been provided for betterment not for creating a mess.
