A report of the arrest of an admin of an app due to objectionable content posted by a member has raised questions about its legality. The Delhi HC has said an admin cannot be held liable for defamation
~By Sunil Saxena
Have you set up a WhatsApp group? If yes, you need to carefully screen every message being moved by your group members because even one post that is considered offensive by a district administration can land you in jail. It is immaterial who has written or shared the post. The responsibility is yours.
This is what happened to Krishna Sanna Thamma Naik, who was the administrator of The Balse Boys group on WhatsApp. He was arrested on May 2, 2017, by the Uttar Karnataka police along with a group member, who had posted objectionable content against Prime Minister Narendra Modi.
The same can happen in Varanasi, India’s holiest town and the constituency of the prime minister. The district magistrate and the superintendent of police here have put all WhatsApp administrators on notice. In a joint order issued in April 2017, they have decreed that the group admins take action against members who move messages that are “fake, can cause religious disharmony, or are rumours”. Inaction by the group admins can lead to the filing of an FIR against them.
Earlier in October 2015, the Latur police in Maharashtra had arrested a WhatsApp group administrator for “objectionable content” that included video clippings. This is a scary scenario for almost 200 million WhatsApp group administrators across India.
The majority of these groups are made up of family members or friends, who largely post or share photographs, videos and information about themselves. Many also share jokes and posts making fun of politicians that they pick up from the internet. Most of this activity is harmless or what the group members consider harmless.
WhatsApp has 200 million monthly active users in India, which makes it the single biggest market for the instant messaging service
However, the possibility of WhatsApp being used by criminals and anti-social elements cannot be ruled out. This social messaging platform is instant, enjoys end-to-end encryption, and can be used for conducting nefarious activities.
The question is: what is the responsibility of group administrators? How liable are they for the messages being shared on their group? Should they be punished for a message moved by a member or should the creator of the message be held liable? Should the group administrators scan every message that is moved by their group members and decide which message should be reported to the police? And how feasible is such scanning given the large volume of messages being moved on the groups? The maximum number of members that a group admin could sign used to be 100 initially. In 2016, WhatsApp raised this number to 256.
Mercifully, a judgment delivered by a Delhi High Court judge in December 2016 has settled some key points regarding the responsibilities of chat group administrators.
Justice Rajiv Sahai Endlaw of Delhi High Court, who examined the plea of defamation filed against the members and administrator of online chat and messaging groups Telegram and Google, ruled: “I am unable to understand as to how the administrator of a group can be held liable for defamation, even if any, by the statements made by a member of the group.”
Offensive content on Facebook, Google
In 2011, a complaint was filed by Vinay Rai in Patiala House Court against several tech giants such as Facebook India, Google and others highlighting several loopholes in monitoring offensive content. The complaint was filed under Sections 200 and 156(3) of the Criminal Procedure Code and Sections 153A, 153B, 292, 293, 295A, 298, 109, 500 and 120B of the Indian Penal Code.
It was stated in the complaint that as these companies provide services for electronic content, they are also accountable to manage and control online sites and internet content. They also act as hosts for inflammatory content which can destroy the secular fabric of our country. This content is demeaning, degrading and obscene and can seriously affect religious sentiments, it said.
It further stated that currently so much objectionable material was available which can pave the way for communal riots in our country. It also said it could corrupt the minds of children and result in dangerous consequences. The complaint also specified that it cannot be considered under Freedom of Speech and Expression.
It noted that the obscene content could be easily downloaded from social media sites and printed on books, pamphlets and paper. It suggested that such websites are created only for the purpose of providing educational, historical, research and education as part of their commercial activities. Though the case was disposed of, it was successful in highlighting major defects in the monitoring of online content.
The judge further held that “to make an administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation.”
The judgment is a significant ruling and should be studied carefully by all district administrations and law enforcement authorities. Even more significant was Justice Endlaw’s observation that “when an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation, and defamatory statements made by any member of the group cannot make the administrator liable”.
In the case of WhatsApp, the administrators suffer from one more limitation. They can neither delete member messages from the phones of group members nor can they influence what the members share. So, why should they be held liable for what they cannot control?
Another legal issue that needs to be studied is whether a WhatsApp group admin can be considered an intermediary as defined by the Information Technology Act (ITA). According to Section 2(w) of ITA, an intermediary “means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”.
By this definition, a WhatsApp group admin cannot be considered an intermediary because he neither stores nor transmits electronic records. He has only used a chat messaging platform to create a group. It is the messaging platform that powers the group’s activities.
In the case of WhatsApp, the administrators suffer from one more limitation. They can neither delete member messages from the phones of group members nor can they influence what the members share. So, why should they be held liable for what they cannot control?
However, if for some reason, law enforcement authorities consider group admins to be intermediaries and hold them liable for all messages moved in their group, then they should check Section 79 of the IT Act. This section provides exemption to the intermediaries from liability provided they do not (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission.
The only ground on which action can be taken against the intermediary is when he “has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act (ITAA 2008)”.
Section 79 also makes it clear that action can be taken against an intermediary only if he “fails to expeditiously remove or disable access to material” that is being used to commit an unlawful act. For this, the intermediary must be “notified by the appropriate Government or its agency”.
District administrations too should abide by this Act. They should give WhatsApp admins sufficient time to undo the damage caused by rogue members. The admins must be asked to remove the erring members and notify remaining members of why the action has been taken. If, however, the admins refuse to take action after receiving such a notice, then the authorities will be well within their rights to take action against the erring admins. Such an approach will increase the faith of people in law-enforcing authorities.
—The writer is Dean, School of Communication, GD Goenka University