LHC says WhatsApp admins cannot be blamed for every group post

LAHORE: The Lahore High Court has ruled that criminal responsibility in WhatsApp group cases must rest on a person’s own proven conduct, holding that neither creating nor managing a group automatically makes someone answerable for every message posted by others.

The observations were made by Justice Tariq Saleem Sheikh while deciding a post-arrest bail plea in a cybercrime case tied to allegations of sharing blasphemous material through WhatsApp groups. The court ultimately refused bail to the petitioner, finding that the prosecution had presented sufficient incriminating material against him at this stage.

Court outlines limits of liability

In its ruling, the court said a WhatsApp administrator generally does not have prior control over messages sent by members and therefore cannot ordinarily be held vicariously criminally liable for objectionable content shared by others. Such liability could arise only where evidence showed common intention, conspiracy, abetment, facilitation or active participation in spreading unlawful material.

The judgment also said simple membership of a WhatsApp group, passively receiving messages, staying in the group or not exiting it did not by themselves amount to a criminal offence. Liability must instead be connected to an identifiable act such as uploading, forwarding, sending, sharing, soliciting or intentionally taking part in the circulation of unlawful content.

Justice Sheikh further observed that a brief reaction, an emoji or an expression of agreement should not on its own be treated as preparation or dissemination of unlawful content. Likewise, the court said an administrator’s failure to remove objectionable material would not automatically create criminal liability unless accompanied by other circumstances showing abetment, facilitation, conspiracy or a statutory duty to act.

Case background and arguments

The bail petition arose from FIR No. 57/2024 registered by the FIA Cyber Crime Wing, Lahore, under Sections 295-A, 295-B, 295-C, 298-A and 109 of the Pakistan Penal Code, along with Section 11 of the Prevention of Electronic Crimes Act, 2016.

The complainant was added to two WhatsApp groups in which several participants allegedly posted blasphemous material. After preserving screenshots, he approached the FIA Cyber Crime Wing, which began an inquiry. A second complaint concerning the same groups was later merged into that inquiry, after which investigators concluded that the petitioner had uploaded, shared and disseminated the impugned material, leading to registration of the FIR.

The defence argued that the petitioner had been falsely implicated and said the prosecution had failed to show that he was the creator or administrator of the groups. His counsel maintained that group membership and recovery of a mobile phone were not enough to prove that he had uploaded or circulated the material. The defence also questioned whether the WhatsApp account, SIM, phone number and disputed posts had been properly linked to the petitioner.

The petitioner’s side further challenged the technical evidence, arguing that his Vivo Y22 phone, seized on April 8, 2024, stayed in official custody for more than five weeks before a technical analysis report was prepared, creating the possibility of tampering or misuse.

Opposing the plea, the assistant attorney general, assisted by counsel for the complainant, said the prosecution case did not rest simply on group membership. He told the court that six suspects had been arrested during the inquiry and that their mobile phones had been taken into custody. He said forensic examination of the petitioner’s phone specifically connected him to uploading, sharing and disseminating the offending material. The prosecution also denied any tampering and said the device remained secure during the forensic process.

How the court applied the law

While examining Section 11 of PECA, the court observed that the law criminalises preparing or disseminating information through an information system or device that advances, or is likely to advance, interfaith, sectarian or racial hatred. The judgment said that even though the provision does not expressly use the word intentionally, the acts of preparing and disseminating information are inherently voluntary and criminal liability cannot arise from accidental, involuntary or passive receipt of content.

The court added that in the setting of WhatsApp groups, uploading, forwarding, sending, sharing, storing for onward transmission or otherwise circulating offensive material could fall within Section 11 where the remaining ingredients of the offence were made out. On Section 109 of the PPC, the court said abetment cannot be presumed merely from creating or administering a group and must instead be supported by evidence of instigation, conspiracy or intentional assistance.

The judgment also reviewed Pakistani case law and Indian court decisions, noting that while foreign rulings carry persuasive rather than binding value, they consistently support the view that WhatsApp group administrators cannot automatically be held responsible for posts shared by members where no statutory rule creates vicarious criminal liability.

Bail refused in present case

Applying those principles, the court said the prosecution had relied not only on the petitioner’s alleged presence in the groups but also on technical material. The judgment recorded that the Technical Analysis Report dated May 17, 2024 linked the seized Vivo Y22 handset to the petitioner, identified three active WhatsApp accounts on the device and found the allegedly offending content in the WhatsApp backend sent folder.

At the bail stage, the court declined to accept the defence objection to the forensic evidence, observing that the five-week gap between seizure of the phone and preparation of the report was not by itself enough to prove tampering. The report stated the phone had been received in sealed condition through a documented chain of custody, and that no independent material had been produced to show unauthorised access or insertion of data after the seizure.

The court further held that although the presence of material in the sent folder alone might not conclusively establish that the registered user personally transmitted every message, the phone had been recovered from the petitioner and, at this stage, he had not claimed that anyone else had access to or used the device.

On that basis, the court concluded that the case did not fall within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure and dismissed the post-arrest bail application. It clarified, however, that the observations were tentative, limited to the bail matter and would not prejudice the trial.