Inside the first issue, the Director of Public Prosecutions, Mr. Satyajit Boolell, Senior Counsel, wrote article in which the question of whether the administrator of a Whatsapp group is caught by Section 23 of the Cybersecurity and Cybercrime Act 2021 is considered.
Here is the complete article:
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What’s what?
Section 23 (1) of the Cybersecurity and Cybercrime Act 2021 provides that: “It shall be the responsibility of the administrator of an online account to moderate and control undesirable content that has been brought to his attention by an investigatory authority”.
An investigatory authority means the police or any other body lawfully empowered to investigate any offence.
Under subsection (2), any person who contravenes subsection (1) shall commit an offence and on conviction be liable to a fine not exceeding one million rupees and to penal servitude for a term not exceeding 20 years. This section has the merit of being a two-step process. First, what is allegedly deemed to be an undesirable content on the online account is brought to the attention of the administrator by the police. Secondly, after having received notification, the administrator of an account like a Facebook or an Instagram account will have to moderate or censor the content which has been uploaded on the platform, presumably to the satisfaction of the investigatory authority.
Will the administrator of a Whatsapp group be caught by section 23, if undesirable contents authored by one member finds its way on the chat group? The answer is provided by the Bombay High Court in the case of Kishore Tarone v The State of Maharashtra, where the learned Judges addressed a similar question. In that case, both Mr Tarone, the first accused and the complainant, one Mrs Ramchanatai, were members of a WhatsApp chat group administered by the former. It was alleged that the first accused had used filthy language against Mrs Ramchanatai, on the chat group, and the administrator of the WhatsApp group had failed to take action either by deleting the name of the first accused from the group or asking him to submit an apology to the complainant. All that the administrator did, was to express his helplessness. The question that arose in the case therefore was whether the administrator was criminally liable for failing to take any action of some sort.
The High Court first pointed out that in order to adjudicate whether the administrator was criminally liable, it was important to understand the functioning of WhatsApp messaging service. WhatsApp, the Court stated, is an instant messaging platform which can be used for mass communication by opting to create a chat group. A chat group is a feature on WhatsApp which allows joint participation of members of the chat group. Group Administrators are the ones, who create the group
The Court in reaching its conclusions held that: “… a group administrator has limited power of removing a member of the group or adding other members of the group.. The administrator of a WhatsApp group does not have the power to regulate, moderate or censor the content before it is posted on the group. But if a member of the WhatsApp group posts any content, which is actionable under law, such person can be held liable under the relevant provisions of law. In the absence of specific provision .. a group administrator cannot be held vicariously liable for an act of a member of the group who posts objectionable content, unless it was 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”.
The administrator of a WhatsApp group or messaging service with similar group function will therefore not caught by Section 23 of the Cybersecurity and Cybercrime Act 2021 since in any event, he has no means to effectively moderate or control undesirable contents posted by members on the chat group.
