No Vicarious Liability Of Whatsapp Admin: Madras HC Agrees with Bombay HC

• In a case titled R. Rajendran vs. The Inspector of Police and Karthivel the Hon’ble Madras HC has held that the administrator of a whatsapp group cannot be held to be vicariously liable for any offensive messages forwarded into the group.
• In the present case, a petition was filed by the Administrator of a whatsapp group named ‘Karur Lawyers’ to quash the FIR instituted against him. The complaint was lodged by a member of the same group alleging that offensive messages were being forwarded to the group by a man named Pachaiyyapan, who was a member of the same group. These messages would promote feelings of enmity between two religious communities. Since the petitioner was the admin of the group, an FIR was registered against him under the provisions of section 153A of IPC (promoting enmity between different groups by words, written or spoken) and section 294(b) of IPC (uttering of any obscene song or ballad in public place).
• Relying upon the judgement of the Hon’ble Bombay HC in the case of Kishore vs State of Maharashtra (2021), the Hon’ble Court held that the administrator of the group will not be vicariously liable for any message posted into the group by any of the members. The Court agreed with the observation made by the Bombay HC in the above case, in which the court said that vicarious liability will arise only when there is common intention or a pre-arranged plan, in pursuance of which the member and the admin were posting offensive messages in the group.
• The Bombay HC had further noted that the administrator of a whatsapp group cannot reasonably be expected to presume or to have knowledge of the criminal actions of the group members.
• The Madras HC, referring to the above case, also noted that the whatsapp administrator does not have the power to regulate or censor the content being posted in his group. He also has limited power of removing and adding persons to the group.
• After carefully considering the contentions of both the opposing counsels, the Hon’ble Court observed thus-

“If the petitioner has played the role of a group administrator alone and nothing else, then while filing the final report, the petitioner’s name shall be deleted”.

• But the Court also stated that if any other material also comes to light which shows the connivance of the petitioner, then of course, the petitioner will have to contest the case on its merits.