The Case of Whatsapp Group Admins
Censorship laws in India have now roped in group administrators of chat groups on instant messaging platforms such as Whatsapp (group admin(s)) for allegedly objectionable content that was posted by other users of these chat groups. Several incidents[1] were reported this year where group admins were arrested in different parts of the country for allowing content that was allegedly objectionable under law. A few reports mentioned that these arrests were made under Section 153A[2] read with Section 34[3] of the Indian Penal Code (IPC) and Section 67[4] of the Information Technology Act (IT Act).
Targeting of a group admin for content posted by other members of a chat group has raised concerns about how this liability is imputed. Whether a group admin should be considered an intermediary under Section 2 (w) of the IT Act? If yes, whether a group admin would be protected from such liability?
Group admin as an intermediary
Whatsapp 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 that allows joint participation of Whatsapp users. The number of Whatsapp users on a single chat group can be up to 100. Every chat group has one or more group admins who control participation in the group by deleting or adding people. [5] It is imperative that we understand that by choosing to create a chat group on Whatsapp whether a group admin can become liable for content posted by other members of the chat group.
Section 34 of the IPC provides that when a number of persons engage in a criminal act with a common intention, each person is made liable as if he alone did the act. Common intention implies a pre-arranged plan and acting in concert pursuant to the plan. It is interesting to note that group admins have been arrested under Section 153A on the ground that a group admin and a member posting content on a chat group that is actionable under this provision have common intention to post such content on the group. But would this hold true when for instance, a group admin creates a chat group for posting lawful content (say, for matchmaking purposes) and a member of the chat group posts content which is actionable under law (say, posting a video abusing Dalit women)? Common intention can be established by direct evidence or inferred from conduct or surrounding circumstances or from any incriminating facts.[6]
We need to understand whether common intention can be established in case of a user merely acting as a group admin. For this purpose it is necessary to see how a group admin contributes to a chat group and whether he acts as an intermediary.
We know that parameters for determining an intermediary differ across jurisdictions and most global organisations have categorised them based on their role or technical functions.[7] Section 2 (w) of the Information Technology Act, 2000 (IT Act) defines an intermediary as any person, who on behalf of another person, receives, stores or transmits messages or provides any service with respect to that message and includes the telecom services providers, network providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online marketplaces and cyber cafés. Does a group admin receive, store or transmit messages on behalf of group participants or provide any service with respect to messages of group participants or falls in any category mentioned in the definition? Whatsapp does not allow a group admin to receive, or store on behalf of another participant on a chat group. Every group member independently controls his posts on the group. However, a group admin helps in transmitting messages of another participant to the group by allowing the participant to be a part of the group thus effectively providing service in respect of messages. A group admin therefore, should be considered an intermediary. However his contribution to the chat group is limited to allowing participation but this is discussed in further detail in the section below.
According to the Organisation for Economic Co-operation and Development (OECD), in a 2010 report[8], an internet intermediary brings together or facilitates transactions between third parties on the Internet. It gives access to, hosts, transmits and indexes content, products and services originated by third parties on the Internet or provide Internet-based services to third parties. A Whatsapp chat group allows people who are not on your list to interact with you if they are on the group admins’ contact list. In facilitating this interaction, according to the OECD definition, a group admin may be considered an intermediary.
Liability as an intermediary
Section 79 (1) of the IT Act protects an intermediary from any liability under any law in force (for instance, liability under Section 153A pursuant to the rule laid down in Section 34 of IPC) if an intermediary fulfils certain conditions laid down therein. An intermediary is required to carry out certain due diligence obligations laid down in Rule 3 of the Information Technology (Intermediaries Guidelines) Rules, 2011 (Rules). These obligations include monitoring content that infringes intellectual property, threatens national security or public order, or is obscene or defamatory or violates any law in force (Rule 3(2)).[9] An intermediary is liable for publishing or hosting such user generated content, however, as mentioned earlier, this liability is conditional. Section 79 of IT Act states that an intermediary would be liable only if it initiates transmission, selects receiver of the transmission and selects or modifies information contained in the transmission that falls under any category mentioned in Rule 3 (2) of the Rules. While we know that a group admin has the ability to facilitate sharing of information and select receivers of such information, he has no direct editorial control over the information shared. Group admins can only remove members but cannot remove or modify the content posted by members of the chat group. An intermediary is liable in the event it fails to comply with due diligence obligations laid down under rule 3 (2) and 3 (3) of the Rules however, since a group admin lacks the authority to initiate transmission himself and control content, he can’t comply with these obligations. Therefore, a group admin would be protected from any liability arising out of third party/user generated content on his group pursuant to Section 79 of the IT Act.
It is however relevant to note whether the ability of a group admin to remove participants amounts to an indirect form of editorial control.
Other pertinent observations
In several reports[10] there have been discussions about how holding a group admin liable makes the process convenient as it is difficult to locate all the users of a particular group. This reasoning may not be correct as the Whatsapp policy[11] makes it mandatory for a prospective user to provide his mobile number in order to use the platform and no additional information is collected from group admins which may justify why group admins are targeted. Investigation agencies can access mobile numbers of Whatsapp users and gain more information from telecom companies.
It is also interesting to note that the group admins were arrested after a user or someone familiar to a user filed a complaint with the police about content being objectionable or hurtful. Earlier this year, the apex court had ruled in the case of Shreya Singhal v. Union of India[12] that an intermediary needed a court order or a government notification for taking down information. With actions taken against group admins on mere complaints filed by anyone, it is clear that the law enforcement officials have been overriding the mandate of the court.
Conclusion
According to a study conducted by a global research consultancy, TNS Global, around 38 % of internet users in India use instant messaging applications such as Snapchat and Whatsapp on a daily basis, Whatsapp being the most widely used application. These figures indicate the scale of impact that arrests of group admins may have on our daily communication.
It is noteworthy that categorising a group admin as an intermediary would effectively make the Rules applicable to all Whatsapp users intending to create groups and make it difficult to enforce and would perhaps blur the distinction between users and intermediaries.
The critical question however is whether a chat group is considered a part of the bundle of services that Whatsapp offers to its users and not as an independent platform that makes a group admin a separate entity. Also, would it be correct to draw comparison of a Whatsapp group chat with a conference call on Skype or sharing a Google document with edit rights to understand the domain in which censorship laws are penetrating today?
Valuable contribution by Pranesh Prakash and Geetha Hariharan
[1] http://www.nagpurtoday.in/whatsapp-admin-held-for-hurting-religious-sentiment/06250951 ; http://www.catchnews.com/raipur-news/whatsapp-group-admin-arrested-for-spreading-obscene-video-of-mahatma-gandhi-1440835156.html ; http://www.financialexpress.com/article/india-news/whatsapp-group-admin-along-with-3-members-arrested-for-objectionable-content/147887/
[2] Section 153A. “Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.— (1) Whoever— (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities…” or 2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
[3] Section 34. Acts done by several persons in furtherance of common intention – When a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
[4] Section 67 Publishing of information which is obscene in electronic form. -Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees."
[5] https://www.whatsapp.com/faq/en/general/21073373
[6] Pandurang v. State of Hyderabad AIR 1955 SC 216
[7]https://www.eff.org/files/2015/07/08/manila_principles_background_paper.pdf; http://unesdoc.unesco.org/images/0023/002311/231162e.pdf
[8] http://www.oecd.org/internet/ieconomy/44949023.pdf
[9] Rule 3(2) (b) of the Rules
[10]http://www.thehindu.com/news/national/other-states/if-you-are-a-whatsapp-group-admin-better-be-careful/article7531350.ece; http://www.newindianexpress.com/states/tamil_nadu/Social-Media-Administrator-You-Could-Land-in-Trouble/2015/10/10/article3071815.ece; http://www.medianama.com/2015/10/223-whatsapp-group-admin-arrest/; http://www.thenewsminute.com/article/whatsapp-group-admin-you-are-intermediary-and-here%E2%80%99s-what-you-need-know-35031
[11] https://www.whatsapp.com/legal/
[12] http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf
Author
