Think Before You Ping!

Subrahmanya Kaushik R S

16 April 2020 6:01 AM GMT

  • Think Before You Ping!

    Communally colored messages and fake news items are all over social media platforms including Whatsapp and Facebook. Senior police officials across the country have already rung the warning bells cautioning strict legal action against those inciting communal feelings and spreading fake news regarding the coronavirus on social media platforms. Law in India may not have necessarily caught up with the pace of technological progress. However, the legal implications of the use of technology and the legal obligations and liabilities of the users of social media in the existing legal framework are worth examining.

    To begin with, acts intending to create communal disharmony or to outrage religious feelings are punishable offences under the Indian Penal Code. Section 153A of the Penal Code makes doing of acts prejudicial to maintenance of harmony and promoting enmity on grounds of religion a punishable offence. Section 295A deals with deliberate and malicious acts intended to outrage religious feelings. Subject to the exceptions enumerated therein, making, publishing or circulating statements which are likely to create or promote enmity, hatred or ill-will among communities is made punishable under Section 505(2). These offences are all cognizable and non-bailable offences. The punishment prescribed for each of the offences is imprisonment upto 3 years or fine or both. Thus, the penal law of India views these offences as serious offences. Posting communally coloured textual content, images, videos on social media platforms can certainly fall within the ambit of these provisions of the Penal Code. However, the question would be whether a person who merely shares or forwards such content is also guilty of the offence even though he did not originally create or publish such content. This question will have to be answered with reference to whether a particular state of mind or intention is a mandatory requirement to attract the rigours of a particular penal provision. On a bare reading of Section 153A (1) (a) and Section 153A (1) (b) of the Penal Code which are the provisions relevant to the issue at hand, it would emerge that it is sufficient if sharing or forwarding the content was prejudicial to maintaining harmony or was likely to disturb public tranquillity. Therefore, in the case of Section 153A, it becomes immaterial whether the person who shared or forwarded the content did so with an intention to create or ill-will or whether he was even aware of the contents of such text/image/ video.

    On the other hand, Section 295A contemplates a particular state of mind for the act to become punishable. A deliberate and malicious intention to outrage the feelings is an essential ingredient of Section 295A. However, it could be said that such a state of mind or intention can be presumed in a given case. When a person shares or forwards a textual message or image or video, it can be presumed that he was aware of its contents and in token of his approval or endorsement to the content, he shared or forwarded the same. The presumption is naturally stronger in the case of a person who is educated, well-informed, worldly-wise and socially conscious.

    Further, Section 66-D of Information Technology Act, 2000 clearly states that "Whoever, by means for any communication device or computer resource cheats by personating shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees."
    In this regard, it may be relevant to refer to an order of the High Court of Madras passed in the year 2018
    [1]. In the instant case, the police had initiated criminal action against the accused of having shared on his Facebook wall, an alleged defamatory post against a woman. It was the contention of the accused before the High Court which was hearing his bail application that he had shared the content with bona fide intention without reading its contents, and hence, he could not be held liable for having committed the offence alleged. Rejecting the argument, the Court made the following observation:

    "Forwarded message is equal to accepting the message and endorsing the message".

    The same principle can be made applicable even to Whatsapp messages. The order was one passed by a High Court in the context of a bail petition and whether it has enunciated the correct legal position is a matter of jurisprudential debate. However, it cannot be said at this stage that the order does not lay down the correct law. Therefore, it is essential for every responsible member of the digital society to exercise prudence and restraint on digital fora and to avoid blind sharing or forwarding of all content found within his digital vicinity.

    The next question would be whether the Group Administrator of a Whatsapp Group can be held liable for any content that is posted on the group by another member. As it stands today, there is no codified legislation or judgment of the Supreme Court of India which specifically lays down that the administrator of a Whatsapp Group is liable for the content posted on the group by another member. Incidentally, the High Court of Delhi dealt with the question in the context of a civil defamation suit. It was held that the administrator cannot be said to be liable for the alleged defamatory content posted on the group
    [2]. One of the reasons which led to the High Court to hold so was that the administrator of a group did not have the option to regulate or restrict the content which could be posted on the group back then. However, currently, an option is made available to the administrator to restrict posting messages on the group to himself. In view of the addition of this feature to Whatsapp, in the days to come, the question of vicarious liability of a group administrator may have to re-examined in the context of a tort like defamation or negligence since vicarious liability may also arise by ratification
    . However, where the malicious content is posted on a Whatsapp group by a member, the administrator of the Whatsapp group cannot be held criminally liable only because he was the administrator. No such vicarious liability can be readily inferred in the context of an offence punishable under the penal law. However, it advisable for a group administrator to restrict the posting of messages by members or to terminate erring members from the group as a matter of abundant caution.

    Subrahmanya Kaushik R S is an advocate practicing at the High Court of Karnataka, Bengaluru.

    [The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

    [1] Selvi J. Kavin Malar v The Commissioner of Police, WP NO. 12570 of 2018, dtd: 30.05.2018

    [2] Order dated 29.11.2016 in CS (OS) No. 188/2016

    [3] Page 105, Chapter VIII, "The Law of Torts", Ratanlal and Dhirajlal, 21st Edition

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