The increased focus on the liability of WhatsApp for the fake news menace leads to a return to the focus on another issue - on the liability imposed on group administrators. A recent report is of the arrest of 21 year old Junaid Khan, who has been in jail for 5 months, merely for being the group administrator of a WhatsApp group on which an objectionable post was made. The arrest of the group administrator is increasingly becoming a default practice, without an assessment of his actual participation in the criminal act in question. The result is that ironically, a WhatsApp group administrator is subject to greater responsibility and stricter liability for objectionable content than WhatsApp itself, which is protected under the law as an intermediary.
No Act imposes liability on a WhatsApp administrator
A WhatsApp group administrator is thus being held liable for failing to monitor or remove such content on the group. The liability further, is strict liability, for he is being arrested for the mere fact that he was the group administrator of that group, regardless of whether he actually had any criminal intent in relation to the illegal content. The immediate question that arises then is on the legal basis of this liability imposed on the group administrator.
The fact is that no such liability is imposed under any act. The group administrator is certainly not an intermediary under the Information Technology Act, 2000 (as per the definition, an intermediary is one which receives, stores or transmits the message, which in this case would be WhatsApp, and not the administrator). He is thus, not subject to the obligations drawn out for an intermediary, such as to remove objectionable content on coming to know of it. Neither is he entitled to the protections offered to an intermediary, which is protected from liability for illegal content that it hosts on its platform.
Legal basis include Magistrate orders and police directions
The legal basis appears to be then, through orders issued by various district magistrates on the one hand, and directions issued by the police on the other. For instance, recent reports include a warning to group administrators of action against them by a Madhya Pradesh IPS officer, and a notice to 21 WhatsApp group administrators in Jammu from a Kishtwar Magistrate for failing to register, on finding that the platform was being routinely used to spread provocative material on militancy. The legal basis for some of these arrests is unclear, such as in the case of this arrest of a group administrator by the Kairana (UP) police recently for sharing posts inciting religious hatred.
No procedural clarities or boundaries of liability imposed
While the exact terms of these orders are unclear, they impose a liability that is very stringent, and further has no procedural clarity or boundaries drawn for its exercise. Consider the rules that WhatsApp is subject to with respect to monitoring of content.
As an intermediary, for instance, it is required to exercise due diligence under the IT (Intermediary Guidelines) Rules, 2011. This does not, however, include a requirement to monitor content. An intermediary’s obligation w.r.t objectionable content is to remove access to it, only when the content comes to its notice. Further, this must be done within 36 hours only when accompanied with a court order or other governmental direction (as per Shreya Singhal v. Union of India. Censorship, also, is subject to rules and regulations, such as the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
The reason for these rules and protections are, firstly, that censorship leads to major concerns with the exercise of the right to freedom of speech. Secondly, an intermediary, given its special position as an entity which enables the communication but does not otherwise participate in it, is not expected to be aware of the content. This is in contrast to, say the editor of a newspaper, who is required to be aware of the content he puts up. The fake news menace has certainly raised questions on whether these protections need to be revisited, and intermediaries like WhatsApp be made subject to greater responsibility.
WhatsApp administrator is not on the same footing as an intermediary
However, the fact is that these are, at present, not subject to such responsibilities. A WhatsApp group administrator further, is simply not on the same footing as an intermediary. The question then arises, as to how WhatsApp group administrators are expected to exercise the same, or greater responsibilities, and be subject to stricter liability than WhatsApp itself.
It leads to a situation where, with respect to dealing with objectionable content, a group administrator would be subject to more defined responsibilities and greater protection if they were to launch a social media platform instead. There, for instance, there is a clearly defined obligation to inform him of an objectionable post, before any kind of responsibility to deal with it arises.
Administrators to take responsibility of content regardless of facts
In the current situation, however, administrators are expected to take on responsibility of the content on their group, regardless of whether they were even aware of the illegal content on the group, whether they were active members of the group, and even whether they were actually the administrator at that time.
Specific facts point to this, such as in Junaid Khan’s case, where he argues that he was not the administrator at the time the post was shared, and further, he wasn’t even aware that he was the administrator. He had become the default administrator after two successive administrators left. In another case, the arrested administrator argues that he wasn’t even a member of the group at the time the post was shared.
Several other facts come to mind, such as of persons who created groups and are not even active participants in it, leave alone monitoring the communications on the group. Many group administrators are not even aware of the identity of every member on their group.
Issues arising if an administrator acts against content
Even if a WhatsApp administrator were to act against objectionable content, this may lead to further issues, such as an accusation of censorship or violation of the right to free speech. An administrator deleting such content may also face accusations of deleting evidence. Further issues can arise, such as whether the administrator has a responsibility to inform the police of such content. Even in such a case, surely an equal responsibility lies on any member of the group.
Mens rea not being considered
Unless the administrator has actually participated in some way, be it to create the illegal content, share it or otherwise add to, say, the incendiary nature of it through comments, targeting him is completely unjustified. Where the group has specifically been created for an illegal purpose, then the administrator, along with every member, needs to be investigated. The same applies to a group that is frequently misused for such purpose. The administrators actual knowledge of the content is a crucial factor.
Imposition of criminal liability is unjustified
However, in the absence of clear laws on the issue, or of the order of a higher court on the matter, these orders are binding, within the jurisdiction in which they are issued. One judgment in support of WhatsApp group administrators is this 2016 judgment of the Delhi High Court. This, unfortunately, will only bind lower courts within its jurisdiction only, and moreover, the judgment did not deal with important questions, such as whether a group administrator has the responsibility to monitor content.
There is an urgent need for clarity to be brought to this situation. Thus, in the case of Junaid Khan, action is being taken against him for sedition, which can attract imprisonment of 3 years under the IPC. Without a change in current practices, he could well be held liable for sedition. In these cases, the imposition of criminal liability on a person without any obligation imposed on him under the law, or any assessment of his criminal intent or mens rea, is unjustified and a major misuse of the law.
The author is a lawyer and author specialising in technology, privacy and cyber laws.