Is the administrator of a WhatsApp group legally responsible for everything posted in the group?
In November, a journalist in Uttar Pradesh’s Meerut district was booked for defamation for sharing a video lampooning Prime Minister Narendra Modi on a WhatsApp group. The group had both police officers and journalists as members and was used as a platform to share news and information. Its administrator was the district’s senior superintendent of police.
The journalist, Afgan Soni, who works for a Hindi daily in Meerut, was a member of the group. While a First Information Report was registered against Soni, he said that the police has not contacted him about it, leave alone arrested or detained him. No action has been taken against the police officer who was the group’s administrator either.
Things went very differently for 21-year-old Junaid Khan, a science undergraduate from Rajgarh in Madhya Pradesh. In February, Khan was arrested for being the administrator of a WhatsApp group in which some content was shared that the police deemed to be objectionable. He was charged with sedition, and under provisions of the Information Technology Act. He is still in jail.
The district administration and police in Rajgarh are also yet to explain why Khan was arrested in the first place. Nor have they disclosed what the objectionable content was and how it qualified for sedition.
Baffling case
Around five months after his arrest, his family has attempted to bring attention to a technical argument that could have a direct impact on his case. They say that Khan had not started the WhatsApp group but had become its default administrator after the original administrator quit the group.
In WhatsApp groups, whenever the original administrator exits, the first person who was added to the group becomes the new administrator by default. Even if the new administrator adds the original administrator back to the group, the new administrator remains the person in charge of the group.
Khan’s family told a court in Madhya Pradesh that a person called Irfan, who was the original administrator of the group, had left the group immediately after posting the message that the police deemed to be objectionable. This made Khan the default administrator. He was still the administrator when the police investigation began, thus landing him in jail. The police arrested Irfan earlier this month.
The office of Simala Prasad, the superintendent of police in Rajgarh, did not take this reporter’s calls. However, Prasad had earlier told the media: “The family hasn’t told us that Junaid [Khan] had become the default administrator. Rather, they have complained that some other people were also administrators of the group at that time.”
But default administrator or not, the question is: Should Khan have been arrested for someone else’s post? Is being administrator of a group really grounds enough to be in jail?
What the law says
Questions concerning accountability and the legal obligation of administrators of WhatsApp groups have been asked for a while now. Around three years ago, one such case, Ashish Bhalla vs Suresh Chawdhary and Others reached the Delhi High Court.
In December 2016, in its judgment, the court had said:
“…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. 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. 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 therefor. It is not as if without the Administrator’s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform.”
Notwithstanding the Delhi High Court judgment, there have been other cases in which WhatsApp group administrators have been arrested for content posted by members of the group.
In April 2017, the police in Karnataka’s Uttara Kannada district arrested the administrator and a member of a WhatsApp group after the member posted a morphed photograph of Modi on the group.
This was arguably the first arrest of this nature. Here too it is unclear how the police charged the administrator of the group when he had minimum control over what the participant could post. But unlike in Khan’s case, both men were immediately released on bail.
On multiple occasions since 2016, district administrations in some states have issued orders – citing law and order issues – stating that WhatsApp group administrators would be held liable for content posted by any group member. Though these orders contradict the Delhi High Court judgment, the police have even acted on them.
Criminal responsibility?
One such order led to alarm among WhatsApp users across the country last year. The social messaging application has around 200 million users in India.
In April 2017, in Uttar Pradesh’s Varanasi, the constituency of Narendra Modi, District Magistrate Yogeshwar Ram Mishra and Senior Superintendent of Police Nitin Tiwari had issued an order that said a WhatsApp group administrator risked facing charges if rumours or misleading information was posted on a group.
Soon, reports spread across the country that group administrators on WhatsApp can be booked for spreading misleading information and rumours. The order, however, applied only to Varanasi district and not to the entire country.
Scroll.in called the office of Rajgarh collector Karmveer Sharma’s office to ask if such an order was in effect in the district around February, when Khan was arrested. The official who spoke answered in the negative.
While Khan languishes in jail, police and district administrations across states scratch their heads to find ways to legitimise arrests of WhatsApp group administrators for messages posted by members that may be deemed objectionable. But the lack of clarity over these arrests remains, leaving much room for the harassment of others in the future.
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