The digital revolution has transformed communication in Pakistan. Applications like WhatsApp have become essential. While these platforms have enabled instant communication, they have also raised important legal questions regarding criminal liability for online content.
One of the most common misconceptions is that if a member of a WhatsApp group shares illegal, offensive or prohibited material, the group administrator automatically becomes criminally liable. This assumption often arises during investigations into hate speech, fake news, cyberterrorism, online harassment, blasphemous content and other crimes under Peca 2026. However, a careful examination of Pakistan’s constitutional framework and criminal laws demonstrates that this belief is legally incorrect.
The cornerstone of Pakistan’s criminal justice system is that criminal responsibility is personal, not collective. The constitution reinforces this principle through Article 4 and Article 10A. Article 14 also protects the dignity and privacy of people. The Pakistan Penal Code reflects the same principle. Criminal liability generally requires proof of both a prohibited act (actus reus) and a guilty mind (mens rea). Mere membership in, or even administration of, a WhatsApp group does not satisfy any of the requirements.
The criminal code recognizes limited exceptions in which more than one person can be held responsible. Article 34 applies when several persons act with a common intention. Sections 107 and 109 deal with aiding and abetting, while sections 120A and 120B deal with criminal conspiracy. These provisions require evidence that the defendant actively participated in, encouraged, facilitated, or conspired to commit the crime.
Peca takes the same approach. It criminalizes a wide range of cybercrimes, including unauthorized access to information systems, electronic forgery and fraud, cyberterrorism, hate speech, crimes against dignity and privacy, child sexual abuse material, cyberbullying and malware. In all cases, the legal language is directed at the person who intentionally creates, uploads, posts, transmits or disseminates illegal content. Significantly, Peca does not contain any provision that imposes automatic criminal liability on the administrator of a WhatsApp group solely because another member has posted objectionable material.
This does not mean that group administrators enjoy complete immunity. Where there is credible evidence establishing that an administrator personally uploaded illegal content, ordered another person to circulate it, deliberately facilitated its dissemination, encouraged crime or became part of a criminal conspiracy, prosecution may legally follow under the Pakistan Penal Code and Sin. In such cases, liability arises from the administrator’s own conduct and not from his administrative status.
Comparative legal practice supports this interpretation. In the United Kingdom and the United States, criminal liability is based on personal conduct and criminal intent and not mere association with a communication platform.
This distinction is especially important in today’s digital environment. Thousands of WhatsApp groups are used by universities, courts, government institutions, hospitals, companies and civil society organizations. Administrators generally possess limited powers, such as admitting or removing members. They do not pre-screen all messages or exercise editorial control over group communications. Imposing automatic criminal liability for every message posted by others would create an unrealistic and legally unsustainable burden.
At the same time, responsible digital governance requires that administrators exercise reasonable care. They should establish clear group rules, discourage illegal content, remove manifestly illegal material where reasonably possible, and cooperate with legal investigations.
Ultimately, the legal situation in Pakistan is clear. The Constitution, the PPC and Peca recognize that criminal responsibility is individual and based on evidence. The person who intentionally creates, uploads, shares or forwards illegal electronic content bears primary responsibility. Neither the administrator of a WhatsApp group nor other members of the group automatically become criminally liable simply because of their status or association. Liability arises only when the prosecution demonstrates, beyond a reasonable doubt, common intention, complicity, facilitation, conspiracy or direct participation in the commission of the crime.
The author is a practicing lawyer of the Supreme Court of Pakistan with 25 years of legal experience. He can be contacted at: [email protected]
Disclaimer: The views expressed in this article are those of the writer and do not necessarily reflect the editorial policy of PakGazette.tv.
Originally published in The News
