hiddenDec 20, 2016 13:50:00 IST
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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