Can WhatsApp administrators be liable for members’ crime?

By Francis Ogunbowale

There is controversy in the recent time on whether a WhatsApp Group Administrator can be liable for an objectionable post or crime by a member of the group.

Those who believe that an Administrator can be vicariously liable hinged their argument on the fact that one, an Administrator ought to have and exercise control on both the members and the content, but if he fails to do so, he should be liable.

Two, that an Administrator who ought to be vigilant but fails to do so and instead look the other way when a member posts a criminal content that promotes hate, racism, homophobia or other crimes that are actionable in law, should be liable.

Three, that an Administrator who ought to take urgent or immediate step to mitigate the damage caused by an offensive post of a member, but fails to do so should be regarded as an accomplice and be similarly culpable.

There are even those who rely on Section 24 of the Cybercrime Act 2015 to prove that vicarious criminal liability can lie against a WhatsApp Group Administrator.

Firstly, to hold that an Administrator can be vicariously liable for the act of a member, without any involvement of such an Administrator, will be against the rule of law and natural justice. An Administrator does nothing more than to create a WhatsApp group; He can only have control over who enters the group; He cannot influence any instant message posted by a member, until they are eventually posted.

When an Administrator creates a group, he becomes equal and stands at par with the other members. He does not have the power to censor, regulate or moderate members’ posts before they are posted.  Therefore, it will be taking criminal law and jurisprudence too far, if an Administrator is held vicariously liable for the act of a member of the group.

Secondly, on Section 24 of the Cybercrime Act 2015, let us be quick to state here that the section does not support vicarious criminal liability of an Administrator. Section 24 which only deals with cyberstalking, i.e., the repeated use of electronic communication to harass or frighten people, provides:

‘A person who knowingly or intentionally sends a message or other matter by means of computer system or network that (a) is grossly offensive, pornographic or an indecent, obscene or menacing character or causes any such message or matter to be so sent (b) he knows to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or caused such a message to be sent, commits an offence..’

The above provision shows very vividly that a WhatsApp Group Administrator cannot be criminally liable for the act of a member, except the twin ingredients of ‘intention’ (i.e., mens rea) or ‘pre-arranged plan’ (i.e., conspiracy) with the member who posted the offensive content, can be proved. A Group Administrator cannot be expected to presume or have an advanced knowledge of the criminal intention or the act of a member.

It should be stated that Section 24 of the Cybercrime Act 2015, is similar to Section 67(a) of the Information Technology Act, 2000 of India, which provides:

Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to 5 years and with fine which may extend to ten lakh.

This provision was considered by the High Court of India in the case of Mr Kishore V The State of Maharashtra & Anor. 1/3/21. In that case, Mr Kishore, the Group Administrator, was a resident of the District of Gondia. The complaint against him was that a member of his WhatsApp group used filthy language against him and that Mr Kishore did not remove him from the group or take any step. The court rejected the argument of vicarious criminal liability against Mr Kishore and held that except the ingredients of ‘common intention’, ‘pre- arranged plan’ and ‘conspiracy’ are proved, the offence cannot lie against an Administrator.

Similarly, the Supreme Court of India in Navtej Sigh Johar held that it is unconstitutional to criminalize a consensual private act. The conclusion here is that WhatsApp Group Administrator cannot be liable for an offensive item posted by a member, except it can be proved that such Administrator played a role in the crime.

Francis Ogunbowale, is a lawyer in Lagos.

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