CHENNAI: If you are a WhatsApp group’s admin and someone posts ‘objectionable’ content on it, you, as an administrator of the group, are also liable for criminal prosecution. Surprised? So were we. According to legal experts across the country, the Information Technology Act of India is crystal clear. As an admin, you are responsible and liable for content posted on it — unless you take certain precautions. But why? Especially when WhatsApp admins have no control, neither retrospectively nor proactively, over content. Apparently, the Indian IT Act, even in the most recent amended version of 2008, effectively defines a group administrator as an ‘intermediary’ — a person or entity who “on behalf of another person receives, stores or transmits that record or provides any service with respect to that record...”
That puts you on the same footing as telecom, network and Internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market-places and cyber cafes. “An intermediary has certain obligations under the Act,” explains advocate Pavan Duggal, one of India’s top cyber law experts and author of Whatsapp and Indian Cyber Law. “By creating the group, they have created a service and are defined as an intermediary. The law expects the administrator to have in place firm rules and regulations as per the IT Act,” he said.
In short, you need to ensure that no one posts or circulates content that violates cyber laws — everything from ‘objectionable’ content to posts that endanger national security. The entire list is notified in the Information Technology (Intermediary Guidelines) Rules of 2011. But WhatsApp admins have no control over the posts of the group’s members.
“This is where another aspect comes into play. Section 79 states that the intermediary cannot be held liable for any content posted by a third party,” said Duggal. “But only and only if they comply with the provisions of the IT Act, exercise due diligence, do not conspire to circumvent the law and are co-operative once called upon to remove content.”
The only way WhatsApp administrators will not be held liable for content posted on their group is if they have set in place firm terms and conditions for the group. These need to be notified to every member and acknowledgement received. “It is only if a disclaimer is included will he or she be not criminally liable,” clarified advocate Prashanth Mali, another cyber law expert. Claiming ignorance of these provisions will be of no avail if the law sets its eyes on them. “The law takes its own course and ignorance of the law is no excuse. When the Supreme Court made its landmark judgement in March this year on Section 66A, it found the other sections not in violation of the constitution,” said Duggal. “An admin without set terms and conditions and a disclaimer is flirting with danger,” he stated.
But while the law is iron-clad in its interpretation, the very same experts say that it is also extremely outdated. The first version of the law was passed in 2000. The only amendment following this came in 2008. WhatsApp was founded in 2009. “It is obligatory of cyber laws across the world to constantly play catch-up. Indian cyber laws have not,” concluded Duggal. And while they do, buck up and download a copy of the rules. Send them to your members with a disclaimer and preserve a record. Because if you don’t, you might well find yourself in jail.