Author: Vaishnavi Sainee, I year of B.A.,LL.B. from Jagran Lakecity University of Bhopal, Madhya Pradesh
Case number: CRL.MC.NO. 3654 OF 2021
‘‘WILL THE ADMIN OF WHATS’APP GROUP WIL BE HELD LIABLE FOR
OFFENSIVE CONTENT PRETEND BY ANOTHER MEMBER ’’?
The Kerala High Court on 23 Feb 2022 promulgate the judgement in regards with liability of admin towards the offensive content send by another co-admin member of a group . The Kerala High Court following the case statue of ‘Kishor Tarone Vs state of Maharashtra' and ‘Ashish Bhalla Vs Suresh Chaudhary and other’ held that ‘ a group administrator cannot be held Vicarious Liability for an act of a 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.’
In the prevailing scenario, the entire world has marked its footprint on the digital platform. More than half of the population like to engaged on any social media platform while on being Whatsapp, Instagram, Twitter , Facebook , and dating sites . Whatsapp had showcased its relevance on a very faster mode . One of the unique features of this application is quite easier to used , a common platform to bring people on a unite online mood and enabled formation of groups of people in a unite online mode . As every squad or group have a head person to lead them i.e. a leader likewise Whatsapp group too has a admin [ the administartor] along with two sub-admin had a special power to remove and add members in a group . Due to lack of moderation of these groups, the member theirin are at almost free reign to share post/share any kind of data that they wish in terms of messages , voice notes, videos, songs etc . It’s has a clarity that anyone one among the member can share offensive photos and videos .
The petitioner herein created a whatsapp group by name ‘FRIENDS’ .There were two admins of the group accused No.1 had posted in the group a porn video depicting children engaged in sexually explicit act on 15 /06/ 2020 the Ernakulum city . The police reported the case under section 67 {a,b,d} of the IT act 2000 , section 13, 14, 15 of POCSO Act .
THE ROLE OF VICARIOUS LIABLITY
Vicarious liability is defined as , ‘ A person who committed wrongful act will be held liable for it , but sometime a person may be held responsible for the act off another person ,’ Such a liability usually occurs because of some or other legal relationship between the two.
Throwing spotlight on the criminal liability then, If a person had accomplice in a malefaction with a malefaction means Mens Rea then it would be held liable .
Section 149 of IPC - It states that if an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof , or such as the member of that assembly know that the offence to be likely be committed in prosecution of that object , every person who at the time of committing that offence was member would be guilty of the offence committed.
Section 154 of IPC – Holds owner or occupier of land or person having or claiming interest in land , criminally liable for intentional failure of their servants or managers in giving information to the public authorities or in taking adequate measures to stop the occurrence an unlawful assembly or riot on their land.
Section 268 of IPC – It states master is vicariously held liable for nuisance committed by its servant.
Section 499 of IPC - A master is vicariously liable for the publication of a libel by his servant .Hence, there was not mention in any record that the admin [the petitioner] had being in alliance in the entire criminal trauma with accused No.1
CONCLUSION
There is nothing in the record to suggest that the petitioner has published or transmitted or caused to be published in any electronic form the alleged obscene material or be browsed or downloaded the said material or in any way facilitated abusing children online so as to attract section 67 {A},{B},{D} of the IT act. No Records that unveiled the petitioner had used children’s as pornographic purposes or stored for commercial purpose in order to attract the stated sections of POCSO act. Therefore, the case was in favour of petitioner absence of basic ingredients of the offence.
REFERENCES
The case analysis of ‘ Manual vs State of kerala ’ is available at https://www.legitquest.com/case/manual-v-state-of-kerala-and-ors/216D56.
The Order of the court is available at https://www.livelaw.in/top-stories/admin-of-whatsapp-group-not-vicariously-liable-for-objectionable-post-by-group-member-in-the-absence-of-a-statutory-provision-kerala-high-court-192692 .