Kishore Tarone Vs State of Maharashtra
Date- 1st March 2021
Forum-Bombay High Court

Sub- Whether Admin of a WhatsApp group is vicariously liable under the various sections of Indian Penal Code read with Section 67 of Information Technology Act 2000 in relation to the contents which are published by the members of the group

The Bombay High court in the above case while dealing with the vicarious liability of the Admins of WhatsApp held that Whatsapp is an instant messaging platform which can be used for mass- communication by opting to create a chat group. A chat group is a feature on Whatsapp which allows joint participation of members of the chat group.

Group Administrators, as they are generally called, are the ones, who create the group by adding or deleting the members to the same. Every chat group has one or more group administrators, who control participation of members of the group by deleting or adding members of the group.

A group administrator has limited power of removing a member of the group or adding other members of the group. 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.

The Administrator of a Whatsapp group does not have power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the Whatsapp group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law. In the absence of specific penal provision creating vicarious liability, an administrator of a Whatsapp group cannot be held liable for objectionable content posted by a member of a group.

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.

Common intention cannot be established in a case of Whatsapp service user merely acting as a group administrator. When a person creates a Whatsapp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group. Finally the court relying on several decisions quashed the FIR under sections 354- A(1)(iv) , 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000.

This judgement will be of help to all WhatsApp users.

Ramesh Patodia
26-04-2021