WhatsApp Group Administrator Not Vicariously Liable For Objectionable Posts By Members : Madras HC Endorses Bombay HC Judgment

The Madurai Bench was considering a petition filed by the Administrator of a WhatsApp Group called 'Karur Lawyers' seeking to quash an FIR registered against him. The complaint filed by another lawyer, who is a member of the said group, alleged that highly offensive messages that cause ill-feeling between two communities were posted by one of its members named Pachaiyappan. As the group administrator, an FIR was registered against the petitioner for offences under Sections 153A [ Promoting enmity between different groups on certain grounds by words written or spoken] and 294(b) [ utters any obscene song, ballad or words, in or near any public place] of I.P.C.

The court relied on the Bombay High Court's judgment in Kishore v. State Maharashtra (2021), which held that there is no vicarious liability on the group Administrator for the objectionable content posted by a group member. In the said order, Bombay High Court held that vicarious liability does not arise unless it is shown that "there was the 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", Bombay High Court noted in the judgment cited by Madras High Court.

The Court referred to the judgment which iterates that an Administrator has limited powers of removing the member of the group and adding new members, and does not have power to regulate, moderate or censor the content posted. The Additional Public Prosecutor had previously submitted that only forensic report will reveal if the message was posted only by Pachaiyappan (person who posted the allegedly offensive content in the group) or whether it was posted in his name by the petitioner.

The second respondent lawyer, i.e., the de facto complainant had submitted through his counsel that the petitioner was lacking in 'bona fides'. He submitted that the petitioner removed Pachaiyappan from the WhatsApp group due to objections raised against the contentious text message. However, Pachaiyappan was added to the group again after two days according to the complainant.

The Court said that since the forensic report regarding the role of the petitioner was awaited, it was premature to entertain the petition. However, the Court said that the police should bear in mind the principles laid down in the Bombay High Court judgment.

Justice G.R Swaminathan, after analysing all the contentions of the de facto complainant, petitioner accused and State, held as follows:

"If the petitioner had played the role of a group administrator alone and nothing else, then while filing final report, the petitioner's name shall be deleted. If some other material is also gathered by the first respondent so as to implicate the petitioner, then of course the petitioner will have to challenge the case only on merits."

Advocate T. Lajapathi Roy appeared for the petitioner and APP E.Antony Sahaya Prabahar appeared for the first respondent, whereas Advocate G.Thalaimutharasu represented the second respondent.

Case Title: R. Rajendran v. The Inspector of Police & Kathirvel

Case No: Crl.O.P.(MD)No.8010 of 2021 & CRL.M.P.(MD)No.4123 of 2021