Social media group administrators and intermediary liability If the big intermediaries might have benefited from the greater legal clarity around India’s intermediary liability regime to some extent, the pressure may simply have shifted to a different set of actors: the authorities’ alleged concern for public order has led them to expect special vigilance on the part of WhatsApp group administrators. With more than 200 million users, India is WhatsApp’s biggest market, and it one of the most popular forms of digital communication in the country. It is also considered a prime means to spread fake news and disinformation.114 For example, when a Muslim man was murdered in Bisara village near Dadri, in September 2015, on suspicion of storing beef in his fridge, this was followed by an apparently planned rumour-mongering campaign on WhatsApp and Twitter.115 In another case that same year, in Solapur, Maharashtra, rumours about thefts, looting and possible child kidnapping that circulated in WhatsApp groups led to widespread fears.116 The authorities have attempted to contain the spread of such rumours by putting the burden of vigilance on group administrators, even though such administrators arguably are intermediaries. In 2016, two state governments issued directives holding WhatsApp group administrators liable for any message circulated in the group. In Jammu and Kashmir, the circular issued by the District Magistrate of Kupwara additionally required new WhatsApp groups to be registered with the district social media centre by the administrator. In Jharkhand, the circular released by government officials in Dumka held that social media group administrators would be held liable wherever they did not remove group members who had shared incorrect, misleading or seditious information or did not report such an incident to the authorities in cases where this information could affect peace in society.117 In April 2017, an order issued jointly by the District Magistrate and Senior Superintendent of Police in Varanasi, Prime Minister Modi’s constituency, 114 Singh, M. (2017, 24 February). WhatsApp hits 200 million active users in India. Mashable India. www.mashable.com/2017/02/24/ whatsapp-india-200-million-active-users/#F569eCmwisqG 115 The Hindu. (2016, 6 October). Dadri lynching: Police identify rumour-mongers. The Hindu. www.thehindu.com/news/national/ other-states/dadri-lynching-police-identify-main-accused/ article7727750.ece 116 Anima, P. (2015, 28 August). The new tattler in town. The Hindu Business Line. www.thehindubusinessline.com/blink/know/thenew-tattler-in-town/article7587041.ece 117 Dan, S. (2016, 28 December). Are WhatsApp Group Administrators Liable For Members’ Statements? The Wire. https://www.thewire. in/89903/whatsapp-group-administrators-liability noted that where fake information or rumours or statements that could cause religious disharmony were circulated in a social media group, such messages needed to be refuted by the group administrator and the poster of the message would need to be removed from the group. In addition, the order also required all such posts to be reported to the nearest police station. “In the event of inaction from the group admin, he or she will be considered guilty and action will be taken against the group admin,” the order said.118 Some relief seemed to arrive when in December 2016, in Ashish Bhalla v. Suresh Chawdhury & Ors,119 the Delhi High Court noted that it could not see how a WhatsApp group administrator could be held liable for allegedly defamatory messages that were circulated in the group about one of the group’s members – especially since messages do not require the administrator’s approval before being posted. However, as these remarks were merely made by the Court in its rejection of a complaint on the grounds of non-disclosure of cause of action, the judgment cannot be considered a conclusive judicial determination on the matter of liability of social media group administrators in India. And indeed, arrests of WhatsApp group administrators have continued since then. For example, in Karnataka, in May 2017, the administrator of a WhatsApp group on which “ugly and obscene” images of the prime minister were circulated, was arrested.120 And in July 2017, two WhatsApp group administrators were arrested in Chennai because objectionable images of the state finance minister and a female actress were posted in their group by a member.121 Network shutdowns The number of internet shutdowns in India has been steadily increasing over the past five years. While the Software Freedom Law Centre, which has been 118 Press Trust of India. (2017, 21 April). WhatsApp admins beware: Offensive posts can land you in jail. Hindustan Times. www. hindustantimes.com/tech/whatsapp-admins-beware-offensiveposts-can-land-you-in-jail/story-iddtcX54taNah8o3ZIlwxJ.html 119 CS (OS) No. 188/2016. 120 Deccan Chronicle. (2017, 3 May). WhatsApp group admin in Karnataka arrested for sharing offensive posts on PM. Deccan Chronicle. www.deccanchronicle.com/technology/in-othernews/030517/whatsapp-group-admin-in-karnataka-arrested-forsharing-offensive-posts-on-pm.html; ANI. (2017, 3 May). Beware! Here’s why a WhatsApp group admin was arrested. DNA India. www.dnaindia.com/india/report-k-taka-whatsapp-admin-arrestedfor-offensive-posts-on-pm-modi-2425854 121 Thirumurthy, P. (2017, 27 July). WhatsApp group admins and member arrested for posting obscene images of TN Minister. The News Minute. www.thenewsminute.com/article/whatsappgroup-admins-and-member-arrested-posting-obscene-images-tnminister-65848 INDIA / 73