By Asheeta
Regidi
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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