Creators, admins of WhatsApp groups not criminally liable for posts made by members: LHC

LAHORE: In a case pertaining to blasphemy, the Lahore High Court (LHC) on Thursday held that the “mere creation or administration of a WhatsApp group does not, by itself, make the creator or administrator criminally liable for every post made by its members”.

The court issued the directives while denying post-arrest bail to a man accused of uploading and sharing blasphemous content through WhatsApp groups.

Justice Tariq Saleem Sheikh passed a detailed judgment on Thursday, dismissing the bail petition filed by a man booked by the Federal Investigation Agency’s now defunct Cyber Crime Wing. The case was registered on April 5, 2024 under sections 295-A, 295-B, 295-C, 298-A (blasphemy offences) and 109 (abetment) of the Pakistan Penal Code (PPC) and Section 11 of the Prevention of Electronic Crimes Act (Peca).

According to the prosecution, the petitioner was added to two WhatsApp groups where he allegedly noticed blasphemous and sacrilegious posts being shared by members. He took screenshots of some posts and approached the FIA, which initiated an inquiry.

During the investigation, the FIA alleged that the petitioner had uploaded, shared and disseminated the offensive material, leading to the registration of a first information report (FIR).

The petitioner’s counsel argued that his client had been falsely implicated and that the prosecution had failed to establish that he was the creator or administrator of the WhatsApp groups. He contended that mere membership of a group and recovery of a mobile phone could not prove that the petitioner had uploaded or circulated the alleged content, the order said.

The counsel also challenged the reliability of the FIA’s technical analysis report, arguing that the petitioner’s mobile phone was seized on April 8, 2024, while the forensic report was prepared after over five weeks, raising questions about safe custody and chain of custody, it added.

Opposing the bail plea, the FIA argued that the case was not based merely on membership of WhatsApp groups. It said the petitioner’s mobile phone was subjected to technical analysis, which connected him to the uploading and sharing of the alleged material, it said.

Justice Sheikh examined Peca’s legal framework and observed that Section 11 criminalises preparing or disseminating information through an information system or device that advances or is likely to advance interfaith, sectarian or racial hatred.

The judge observed that liability under Peca required examination of whether the information was prepared or disseminated through an electronic device and whether the act was voluntary and attributable to the accused.

The judge held that a person cannot be held criminally liable merely for creating or administering a WhatsApp group or for being a member of it. However, he maintained that liability may arise where a person personally uploads, forwards, shares or circulates objectionable content.

The judge explained that an ordinary WhatsApp group member cannot automatically be blamed for every post shared by others, and criminal liability must be based on an identifiable act or legally relevant omission.

The judge also discussed the role of WhatsApp groups’ administrators, observing that an administrator normally has limited powers to add or remove members and does not automatically become responsible for every message posted by group members.

However, he said, an administrator can be held liable if a group is created for an unlawful purpose or if the administrator participates in the dissemination.

While examining the evidence, the judge noted that the technical analysis report showed that the petitioner’s cellphone was attributed to him and that the alleged offensive content was found in the WhatsApp “sent folder” of the device.

The judge observed that the prosecution’s case did not rest solely on the petitioner’s membership of WhatsApp groups but was supported by technical evidence allegedly connecting him to the circulation of the content.

Rejecting the defence plea regarding delay in forensic analysis, Justice Sheikh held that mere passage of time between seizure and examination of a device did not establish tampering, particularly when the record showed that the phone was received by the technical analyst in sealed condition through a chain-of-custody process.

The judge concluded that sufficient incriminating material existed against the petitioner.

The judge dismissed the bail petition. However, he clarified that observations made in the decision were tentative in nature and the trial court shall decide the case independently on the basis of evidence. ...