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The focus on WhatsApp's responsibility for the false new threat led to a return to the focus on another issue – on the liability imposed on group directors. A recent report mentions the arrest of Junaid Khan, 21 years old and 21 years old and imprisoned for five months simply for being a director of a WhatsApp group for which a reprehensible position had been committed. The arrest of the group's administrator is becoming more and more a default practice, without badessing its actual involvement in the criminal act in question. The result is that, ironically, a WhatsApp group administrator is subject to greater liability and stricter liability for objectionable content than WhatsApp itself, which is protected by law as an intermediary.
No law imposes liability on a WhatsApp administrator
The WhatsApp group administrator is therefore responsible for the lack of monitoring or removal of this content on the group. Liability furthermore, is strict liability because it is stopped for the simple fact that he was the group director of this group, regardless of the fact that he actually had a criminal intent in relation to illegal content. The immediate question then arises is the legal basis of this responsibility imposed on the group administrator.
The fact is that no such liability is imposed by virtue of any act whatsoever. The group administrator is certainly not an intermediary under the Information Technology Act 2000 (as defined an intermediary receives, stores or transmits the message, which in this case would be WhatsApp, not the administrator). It is therefore not subject to the obligations imposed on an intermediary, such as to remove objectionable content by reading it. Nor is he entitled to the protections afforded to an intermediary, who is not responsible for any illegal content that he or she hosts on his platform.
Image of representation. Reuters
The legal basis includes the orders of magistrates and the instructions of the police
The legal basis appears to be then, through the orders issued by various district magistrates on the one hand, and the directives issued by the police on the other hand. For example, recent reports include a warning to the administrators of the group against them by an IPS officer from Madhya Pradesh and a notice to 21 WhatsApp group's administrators in Jammu from a magistrate Kishtwar for failing to register, noting that the platform was commonly used to broadcast provocative material on militancy. The legal basis for some of these arrests is not clear, as in the case of the arrest of a group administrator by the police of Kairana (UP) recently for sharing of messages inciting religious hatred.
or Limits of Liability Imposed
Although the exact terms of these orders are unclear, they impose a liability which is very strict, and which has no further procedural clarity or limits established for its exercise. Let's take a look at the rules to which WhatsApp is subject when it comes to content control.
For example, an intermediary is required to exercise due diligence in accordance with IT (Intermediary Guidelines) Rules, 2011 . However, this does not include the obligation to monitor the content. The obligation of an intermediary with objectionable content is to remove access to it, only when the content is communicated to him. In addition, this must be done within 36 hours only if it is accompanied by a court order or other government directive (according to Shreya Singhal v. Union of India .) Censorship is also subject to rules and regulations such as information technology (Procedure and Warranties for Blocking Access to Information by the Public) Rules , 2009.
The reason for these rules and protections is, first, that censorship raises major concerns in the exercise of Second, an intermediary, given its particular position as an entity that allows communication but does not participate otherwise, should not be aware of the content. of a newspaper, which must be aware of the contents that it sets up. The false threat of news has certainly raised questions about whether these protections need to be revisited, and intermediaries like WhatsApp be subject to a larger resp
Image of representation
The administrator of WhatsApp is not on the same footing as an intermediary
However, the fact is that for the moment, these responsibilities are not subject to such responsibilities. A WhatsApp group administrator further away, is just not on the same footing as an intermediary. The question then arises as to how the WhatsApp group's directors are expected to perform the same, or greater responsibilities, and be subject to more strict liability than WhatsApp itself.
This leads to a situation where, with respect to objectionable content, a group administrator would be subject to more defined responsibilities and greater protection should he / she launch a social media platform instead. . There, for example, there is a clearly defined obligation to inform him of a reprehensible position, before any form of liability is engaged.
Administrators Take Responsibility for Content Irrespective of Facts
In the current situation, however, directors are expected to badume responsibility for the content of their group, whether or not they are aware of the illegal content of the content. group, that they are active members of the group and even that they are actually the director.
Specific facts show it, as in the case of Junaid Khan, where he argues that he was not the administrator at the time the post was shared, and moreover, he was not even aware that he was the administrator. He had become the default administrator after two successive administrators. In another case, the arrested administrator maintains that he was not even a member of the group at the time the post was shared
. Several other facts come to mind, for example people who have created groups and are not even active participants, leave alone to monitor communications on the group. Many group administrators are not even aware of the identity of each member of their group.
Problems Occurring if an Administrator Takes Action Against Content
Even if a WhatsApp Administrator is acting against objectionable content, this can lead to other problems, such as a charge of censorship or violation of the right to liberty. # 39; s expression. An administrator deleting such content may also face eviction charges. Other problems may arise, for example if the administrator has the responsibility to inform the police of such content. Even in such a case, it is certain that equal responsibility lies with any member of the group.
Mens rea is not contemplated
Unless the administrator has actually participated in one way or another, either to create the illegal content, if not add to, say, the inflammatory nature of it through comments, the targeting is completely unjustified. When the group has been specifically created for an illegal purpose, the administrator, as well as each member, must be the subject of an investigation. The same applies to a group that is often misused for this purpose. Effective knowledge of content by administrators is a crucial factor.
The imposition of criminal liability is unjustified
However, in the absence of clear laws on the matter or the order of a higher court in the matter, these Ordinances are mandatory in the jurisdiction in which they are issued. A judgment in support of the directors of the WhatsApp group is this 2016 judgment of the High Court of Delhi . Unfortunately, this will only be binding on the lower courts within its jurisdiction and, in addition, the judgment will not deal with important issues, for example if a group administrator is responsible for monitoring the content.
be brought to this situation. Thus, in the case of Junaid Khan, measures are taken against him for sedition, which can result in a sentence of imprisonment of 3 years according to the CIP . Without any change in current practices, he could well be held responsible for sedition. In these cases, the imposition of criminal liability on a person without any statutory obligation to him or any badessment of his criminal intent or mens rea is unjustified and constitutes a significant abuse of the law. law.
author is a lawyer and author specializing in technology, privacy and cybers laws.
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