In India, an administrator of a Whatsapp group was recently arrested after sharing an allegedly defamatory photoshop image of Prime Minister Narendra Modi. South Africa has not yet tested the responsibility of a group administrator against what is shared in its group. However, given the rise of racism and hate speech online, coupled with the millions of people around the world who use the Whatsapp app, it may only be a matter of time before a case like India`s goes to South African courts. There have been cases where, in some cases, WhatsApp group administrators have been the target of police actions where deceptive messages have been shared in WhatsApp groups. These are often due to the police`s ignorance of the media as well as the relevant laws. Similarly, the Delhi High Court in Ashish Bhalla v. Suresh Chawdhary, when deciding a civil defamation case, states that a director of a group cannot be held liable. According to the Delhi High Court, the law, as interpreted by the Mumbai High Court, must also protect Junaid as well as an active administrator who founded the group. Unfortunately, issuing inappropriate threats against directors via legally weak boards only suggests that a director is more powerful in the eyes of the police than in the eyes of its own members. There also seems to be an attempt to create confusion on the secondary liability aspect by noting that a WhatsApp group admin can be considered an intermediary. Even before this recommendation, the media reported the responsibility of WhatsApp group administrators for offensive messages sent by group members.
The reports also cited the opinions of some experts who claimed that WhatsApp group admins are intermediaries and must comply with policies and rules applicable to intermediaries in order to qualify for Safe Harbour protection. In other words, a WhatsApp admin is not liable just because they hold such a position within the group. Even if the admin doesn`t remove the member who posted offensive content in the group, they still wouldn`t be liable. The High Court of Kerala and the High Court of Mumbai have briefly described the features of WhatsApp, an instant messaging application, in these main features[5]. WhatsApp is an instant messaging platform that can be used for mass communication by choosing to create a chat group. A newsgroup is a feature of WhatsApp that allows members of the chat group to participate together. Group administrators, as they are commonly called, are those who create the group by adding or removing members from it. Each newsgroup has one or more group administrators who control the participation of group members by removing or adding members from the group. A group administrator has limited authority to remove or add other members from the group. After the group is created, the functionality of the administrator and members is equivalent, except for the ability to add or remove members from the group. The administrator of a WhatsApp group does not have the power to regulate, moderate or censor content before it is posted in the group.
However, if a member of the WhatsApp group posts lustful or pruritic content, or if its effects tend to spoil and corrupt people who may read, see or hear the matter contained or incorporated therein, that person may be held liable under the relevant legal provisions[6]. Manual, 22, from Alappuzha district, created a WhatsApp group called FRIENDS. He was the director of the group. On March 29, 2020, one of the group members posted a video showing children acting sexually explicitly. On 15 June 2020, the Ernakulam City Police registered a complaint against the person for breaches of sections 67B(a)(b) and (d) of the Information Technology Act 2000 and sections 13, 14 and 15 of the Protection of Children from Sexual Offences Act 2012. Of course, there are limits to what you can say on a public platform, and there must be consequences in some cases. But a narrowly targeted defamation lawsuit against the author of the statement might be enough to remedy this absurdity. It is high time that law enforcement authorities learned from the above decisions and refrained from artificially distinguishing between members and administrators and from engaging frivolous prosecutions.
According to the courts, the only privilege an administrator has is to add or remove members from the group, apart from creating the group itself. The court found that the administrator of a WhatsApp group did not have the power to regulate or censor content before it was posted in the group. But any member of the group who posts content punishable under the law will be held accountable, the court said. In order to standardize the above-mentioned decisions of the high courts, the Supreme Court may have to decide the case decisively. It cannot be overemphasized that this is evolving case law, especially in the context where the question of the attribution of criminal liability to the administrator of a WhatsApp group must be qualified by several factors. The common intention and mensrea aspect must be considered by the courts by applying the above principles to the particular circumstances of each case, to say the least. There is no law under which a courier administrator can be held liable for a contribution made by a Class Member. Police advice in this regard is illegal. The responsibility of a group administrator in a Whatsapp group, whether professional or private, has just become more difficult.
As of January 2017, about 1.2 billion people worldwide have used Whatsapp and its features to create groups. Even if we try to escape the constant stream of notifications that a Whatsapp group inevitably brings, it seems that this type of communication will stay here. While we cannot predict the content of the messages we open in these groups, we can take steps to mitigate the risk we may be exposed to as a result of their content. These are exactly the questions that the Mumbai High Court recently asked in Kishor v. State of Maharashtra. In the present case, an application was filed with the Bombay High Court in Nagpur under section 482 of the Code of Criminal Procedure (CCP) challenging the indictment naming the applicant as the defendant. The complainant was accused of being the WhatsApp administrator of a group in which one of the members allegedly used foul language, including sexual remarks, against another member of the same group. Are you a WhatsApp group administrator? Hard work that keeps your herd united and disciplined. If you are too strict, they leave the group and if you are liberal, they can post anything from anywhere. Whether it`s fake news, hate, nudity and even sex. So, in this case, who is responsible and what are the legal consequences? We have seen many parodies of famous world leaders shared openly and easily on the internet. There are probably more of these images circulating on private Whatsapp chats.
While many of these images certainly fall into the realm of parody, there are likely countless other groups that share offensive, hateful, or criminal material, and in a country you may want to visit one day. We have previously written about the extension of defamation liability by the Supreme Court of South Africa to people who have simply been identified in Facebook posts. It seems that administrators of social media groups (commonly referred to as “administrators”) should be prepared to take on similar broad responsibility for what is posted in a group. Another aspect that should be considered in these cases is the routine application of the provisions of the Information Technology Act 2000. In this context, the Mumbai High Court clarified that an administrator does not post or transmit material on the Internet by simply creating a group. Thus, the court distinguished between a simple group administrator and an intermediary within the meaning of the law. The police may try to solve the problem of fake news by blaming the administrator, but this has no legal basis and is a pathetic mockery of the country`s criminal law. By Sarthak Dogra: WhatsApp group administrators cannot be held criminally liable for offensive messages from other members of the group, the Mumbai Supreme Court recently ruled. The Nagpur Bank Court`s decision came in response to a case of sexual harassment against a 33-year-old man. In Kishor Chintaman Tarone v. In the state of Maharashtra & Another (2021 ICO 1285), the Mumbai High Court dealt with a similar issue regarding the administrator`s liability arising from an indecent message shared by another member of the WhatsApp group. It was decided that “a group administrator cannot be held liable on behalf of an act of a group member who posts objectionable content unless it is proven that there was a common intention or plan acting jointly by such a member of a WhatsApp group and the administrator in accordance with that plan”.
Interestingly, the Supreme Court of Allahabad, in an adversarial order, ruled simultaneously on 23 February 2022 in the Mohd case.