UNDERSTANDING THE VICARIOUS LIABILITY OF WHATSAPP GROUP ADMINISTRATORS
AUTHOR- SHREYAM SHARMA*
EDITOR- SHUVASMITA NANDA
INTRODUCTION:
WhatsApp has taken over the world by storm, replacing both conventional messaging and calling, especially in India, which has 390 million users[1]. It has made communication more accessible and convenient for people, with people being able to instantly message others without incurring any charges other than the ones incurred to avail internet. However, despite the advantages that WhatsApp has over conventional modes of communication, it has made the judiciary's job even more cumbersome. With exponential growth in the levels of technology, the laws cannot keep up with the needs of the day.
This has forced judges to interpret the existing laws to fill this legal lacuna. Questions such as whether WhatsApp forwards is admissible in evidence or not have become commonplace nowadays[2]. One of the salient features of this application, i.e., the ability to form chat groups, has led to a legal conundrum which the article covers. However, before understanding the case and the conundrum, let us understand the concept of vicarious liability, which plays a vital role in this entire prospect.
VICARIOUS LIABILITY
Historically, vicarious liability originates from the belief that a slave's personality is considered to have been merged with that of his master. Vicarious liability is premised upon the principles, Respondeat Superior and quifacit per alium facit per se[3]. Another reason for making the master liable is the "deep pocket theory[4]", according to which the person who is in a better financial condition, i.e., the master, should be made to bear the uncertainty of an activity.
For a person X to be vicariously liable for a tortious act caused by some other person Y, the following things must be present-
There must exist a specific nature of the relationship between X and Y.
The tortious act/omission must have some connection with this relationship.
The tortious act/omission should have been done within the course of employment.
It is also possible for a person to be Vicariously liable for someone else's tort even if he did not have any pre-existing relationship with the tortfeasor if
They ratify the act/omission subsequent to its performance
They abet the act/omission
SERVANT Vs INDEPENDENT CONTRACTOR
There is a difference between the nature of contracts in the case of a servant and an independent contractor, such that it affects the liability of the master differently. A servant is employed in a contract of service in contrast to an independent contractor, who is hired on a contract for service. Since the master enjoys a higher degree of control over the nature and procedure of work done by a servant, he is liable for the torts committed by the servant.
The most crucial test that helps in differentiating between a contract of service from a contract for service is the 'Test of Control,' given by Lord Thankerton in Short VJ and W. Henderson Ltd.[5] This test involves four checks which are
Master's authority in the appointment of servants
Control over the amount of salary paid
Master's right to sway control over the procedure of doing work
Master's right of suspension or dismissal[6]
However, this test was premised upon an outdated economic paradigm, making it unsuitable for professional forms of work requiring higher skill levels. The Supreme Court in Dharangadhara Chemical Works Ltd. v State of Saurashtra[7]accepted that though the standard of supervision and control of work is the prima facie test, the nature of control can differ from profession to profession making universal application of a precise definition impossible.
Furthermore, in Silver Jubilee Tailoring House v Chief Inspector of Shops[8], it was held that control is a crucial and decisive factor for the majority of the cases, but not all. Consequently, many other tests were evolved. The crucial part of the Business test was laid down by Lord Denning in Stevenson Jordan and Harrison Ltd. V Macdonald and Evens[9]. "Admission of the impossibility of a precise distinction between a contract of service and one for service was accompanied by general observation that within a contract 'of' service, the servant was appointed in the course of the business which was integral to itself. Whereas under a contract for service, the work done was only an accessory to the process and not an inherent part of it."
The Supreme Court of the United States of America laid down the economic reality test in United States v Silk[10]. Rather than focusing on the control aspect, this test focuses on if the person concerned was an employee "through the lens of economic practicality." To determine the same, a complex test was laid down, which incorporated control, funding of equipment, the possibility of gains, skills required, and the permanency of the relations.
CASE ANALYSIS
The case that this article covers is Kishor v. State of Maharashtra[11]. It was heard by the division bench of Justices Zaka Haq and Amir Borkar of the Nagpur Bench of the Mumbai High Court. In the case, an FIR was registered by the non-applicant against two applicants X and Y under sections 354-A(1)(iv)[12], 509[13] and 107[14] of the Penal Code, 1860 and section 67 of the Information Technology Act, 2000[15] and also proceedings bearing Regular Criminal Case No. 177 of 2016.The FIR claimed that X had used "filthy language" against the non-applicant on the WhatsApp group, which had Y as its administrator. It further claimed that despite the use of filthy language by X, Y had neither removed X from the group nor asked X to submit an apology to the non-applicant.
Before answering the question, it must be understood what type of role an administrator plays in a WhatsApp group. A WhatsApp chat group provides a platform for users to chat simultaneously in a single forum. The administrators of the group have the technical authority to include or exclude users in a WhatsApp group." [16]The Court concluded that, since there is no penal sanction for vicarious liability, the administrator cannot be held liable for objectionable content posted by a member." [17]
In concurrence with this judgment in Allen v Flood[18], the Court elaborated that a group administrator cannot legally be held responsible vicariously for an act committed by a member of the group, who is involved in the publication of objectionable content until a common intention or a pre-arranged plan is involved such that the action was in furtherance of such a plan[19]. Common intention cannot be possibly be determined in the case of WhatsApp service users merely acting as administrators.
It should be noted that though the Court quashed and set aside the FIR lodged against the administrator as well as the subsequent charge sheet filed against him, the Court observed that the member could still be held liable for the posts which are actionable under the law. [20]
CONCLUSION
Despite the Court holding the administrator responsible for maintaining decorum in the WhatsApp group, it rightly mandated the existence of mutual purpose or premeditated plan as a necessary pre-requisite, especially in the absence of criminal legislation, to hold the administrator vicariously liable for any violative material floated by a group member. As vicarious liability requires the presence of a pre-existing relationship, subsequent ratification, or abetment, and none of the three were present in this case, it would have been a blatant miscarriage of justice to hold a person liable for the content he has zero control over.
It would be better if new laws are made or the old ones are amended without much delay to resolve legal ambiguities such as the one observed in the case, which has evolved due to the technological revolution. The IT Rules 2021 are a step taken in the right direction to make the laws keep up with the times.
REFERENCES
[1]Mansoor Iqbal, WhatsApp Revenue and Usage Statistics (2021), business of apps, (May 13, 2021), https://www.businessofapps.com/data/WhatsApp-statistics/.
[2]LiveLaw Research Team, Are WhatsApp Chats Admissible in Evidence?, Live Law (16 Jan 2021 9:51 AM), https://www.livelaw.in/know-the-law/WhatsApp-chats-admissible-evidence-admissibility-arnab-goswami-chats-168460.
[3]ratanlal & dhirajlal, The Law of Torts 168 (28th ed. 2019)
[4] Maven J. Myers, The "Deep Pocket" Rule Revisited, 19 Food Drug Cosmet. Law J. 562, 263 (1964)
[5]Short v. J. & W. Henderson, Ltd., (1945) 79 Ll.L.Rep. 271.
[6]id.
[7] Workmen of Dharangadhara Chemical Works Ltd. v. Union of India, AIR 1957 SC 264.
[8]Silver Jubilee Tailoring House v. Chief Inspector of Shops, (1974) 3 SCC 498.
[9] Stevenson Jordan & Harrison Ltd. v. Macdonald & Evans, [1952] 1 TLR 101 (111).
[10]United State v. Silk, (1947) 331 US 704.
[11] Kishor v. State of Maharashtra, (2021) SCC OnLine Bom 654.
[12] The Indian Penal Code, 1860, § 354-A(1)(iv).
[13] The Indian Penal Code, 1860, § 509.
[14] The Indian Penal Code, 1860, § 107.
[15] Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
[16] Kishor, (2021) SCC OnLine Bom 654.
[17]Kishor, (2021) SCC OnLine Bom 654.
[18]Allen v Flood [1898] AC 1.
[19] Kishor, (2021) SCC OnLine Bom 654.
[20]Kishor, (2021) SCC OnLine Bom 654.
The Author is a 2nd-year B.A.LLB (Hons) student at National Academy of Legal Studies and Research, Hyderabad, Telangana.
Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA does not hold any liability arising out of this article.
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