Judgment says criminal liability of social media app groups must be based on identifiable acts of person
Teenagers pose for a photo while holding their smartphones in front of a Whatsapp logo in this illustration. PHOTO: REUTERS
In a significant ruling on the criminal liability of WhatsApp groups, the Lahore High Court on Thursday held that mere creation or administration of a WhatsApp group does not make a person criminally liable for every message posted by its members, while mere membership in a group, passive receipt of content or failure to leave it does not constitute a criminal offense either.
Justice Tariq Saleem Sheikh observed that criminal liability in cases involving WhatsApp groups must be based on a person’s identifiable acts rather than their status as a creator, administrator or member of a group.
The court ruled that an administrator generally did not have the authority to moderate or approve posts before they were posted and could not be held vicariously liable for objectionable content shared by others unless evidence showed common intent, conspiracy, complicity, or active participation in the dissemination of illegal material.
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The observations follow the rejection of a post-arrest bail application by an individual arrested in a cybercrime case involving allegations of spreading blasphemous material via WhatsApp groups.
The petitioner had sought bail after his arrest in FIR No. 57/2024, registered by FIA Cyber Crime Wing, Lahore, under sections 295-A, 295-B, 295-C, 298-A (blasphemy) and 109 (complete) of the Pakistan Penal Code (PPC), as well as section 11 of the Prevention of Electronic Crimes Act (PECA), 2016.
According to the prosecution, the complainant was added to two WhatsApp groups, several members of which allegedly shared blasphemous messages. After retaining screenshots of the content, he approached the FIA Cyber Crime Wing, who registered an investigation. Another complaint regarding the same groups was later included in the investigation, following which investigators concluded that the petitioner had downloaded, shared and circulated offensive material, leading to the registration of the FIR.
The petitioner’s lawyer argued that his client had been falsely implicated and the prosecution had failed to establish that he was the creator or administrator of the WhatsApp groups. He argued that mere membership in a group and recovery of a cell phone could not establish that the petitioner downloaded or distributed the alleged content.
The defense further contended that the prosecution had not properly linked the accused WhatsApp account, SIM card, phone number or messages to the petitioner. She also challenged the reliability of the technical evidence, arguing that the petitioner’s Vivo Y22 mobile phone, seized on April 8, 2024, remained in official custody for more than five weeks before a technical analysis report was prepared, thereby creating the possibility of misuse or tampering.
Opposing the bail application, the Deputy Public Prosecutor, assisted by the complainant’s lawyer, argued that the case did not hinge solely on the petitioner’s membership in WhatsApp groups. He said six suspects were arrested during the investigation and their mobile phones were seized. The petitioner’s phone was subjected to a forensic examination, which specifically linked it to the downloading, sharing and dissemination of the disputed material. The prosecution denied any tampering with the device and maintained it remained secure throughout the forensic process.
Examining the legal framework of PECA, Justice Tariq Saleem Sheikh observed that Section 11 criminalized the preparation or dissemination of information through an information system or device that promoted or was likely to promote interfaith, sectarian or racial hatred. The court noted that although the provision did not expressly use the word “intentionally”, the preparation and dissemination of information were inherently voluntary acts and criminal liability could not arise from mere accidental, inadvertent or passive receipt of content.
The court also held that in the context of WhatsApp groups, downloading, transmitting, sending, sharing, storing for further transmission or otherwise disseminating offensive content may fall within the scope of Article 11, where the other elements of the offense have been established.
Discussing complicity under Section 109 PPC, the court held that criminal liability could not be incurred simply because a person created or administered a WhatsApp group. Instead, the prosecution must establish instigation, conspiracy, or intentional assistance supported by evidence.
The judgment examined in detail the decisions of Indian courts as well as Pakistani jurisprudence, observing that while the foreign judgments had only persuasive value, they consistently supported the principle that WhatsApp administrators could not be automatically held liable for posts shared by group members in the absence of legal provisions creating indirect criminal liability.
For analytical clarity, the court classified the potential liability in the WhatsApp group cases into different categories.
Concerning group creators and administrators, she considered that the simple creation or administration of a WhatsApp group did not in itself result in criminal liability. However, liability may arise where the administrator actively participated in, facilitated or encouraged the dissemination of illegal content, or where evidence established common intent, conspiracy or complicity.
Regarding ordinary members, the court observed that mere membership in a WhatsApp group, passive receipt of messages, remaining in the group or not leaving it did not constitute preparation, dissemination or complicity.
Rather, criminal liability must be based on an identifiable act such as posting, transmission, sharing, solicitation or intentional participation in the circulation of illicit content.
The judgment further held that those who themselves uploaded, transmitted, sent or disseminated objectionable material were in a different situation because their liability rested on their own actions rather than on their indirect liability.
The court also observed that a simple emoji, an expression of agreement or a brief reaction to a message should not, in itself, be treated as dissemination or preparation of illegal content. Likewise, an administrator’s failure to remove objectionable content does not automatically amount to criminal liability unless accompanied by other legally relevant circumstances demonstrating facilitation, conspiracy, complicity, or a legal duty to act.
Applying these principles to the present case, the court noted that the prosecution had relied not only on the applicant’s alleged membership in WhatsApp groups, but also on technical evidence.
The judgment states that the technical analysis report dated May 17, 2024 attributed the seized Vivo Y22 mobile phone to the petitioner, identified three active WhatsApp accounts on the device and found the allegedly incriminating material stored in the ‘sent’ folder of the WhatsApp backend.
Rejecting the defense’s challenge to the forensic evidence at the bail stage, the court observed that the mere lapse of five weeks between the seizure of the phone and the preparation of the report did not in itself amount to falsification. He noted that the technical report indicated that the device was received in a sealed condition through a documented chain of custody, while no independent evidence was produced to suggest unauthorized access or insertion of data after seizure.
The court held that although the presence of documents in the “sent” file could not by itself conclusively prove that the registered user had personally transmitted each message, the device had been recovered from the petitioner and at the bail stage the petitioner had not claimed that anyone else had access to or used the phone.
Concluding that there was sufficient incriminating evidence against the applicant, the court held that the case did not fall within the scope of “further investigation” under Section 497(2) of the Code of Criminal Procedure.
Accordingly, the Lahore High Court rejected the post-arrest bail application while clarifying that its observations were provisional, limited to ruling on the bail application and would not prejudice the trial. He also ordered the trial court to expedite the proceedings since the suspect remained in custody.
