The ruling says that criminal liability in social media application groups must be based on the person’s own identifiable acts
In this illustration, teenagers pose for a photo while holding their smartphones in front of the WhatsApp logo. PHOTO: REUTERS
In a major ruling on criminal liability in WhatsApp groups, the Lahore High Court on Thursday ruled that the mere creation or administration of a WhatsApp group did 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 did 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 own identifiable acts and not on his or her status as a creator, administrator or member of the group.
The court ruled that an administrator did not normally have the power to moderate or approve messages before they were published and could not be held vicariously liable for objectionable content shared by others unless evidence demonstrated a common intention, conspiracy, complicity or active participation in the circulation of illegal material.
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The observations came while dismissing a post-arrest bail petition filed by an individual arrested in a cybercrime case involving allegations of circulation of blasphemous material through WhatsApp groups.
The petitioner had sought post-arrest bail 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 (abetment) of the Pakistan Penal Code (PPC), along with Section 11 of the Prevention Act of Electronic Crimes (PECA) of 2016.
According to the prosecution, the complainant was added to two WhatsApp groups where several members allegedly shared blasphemous posts. After retaining screenshots of the content, he approached the FIA’s Cyber Crime Wing, which registered an investigation. Another complaint regarding the same groups was later incorporated into the investigation, after which the investigators concluded that the petitioner had uploaded, shared and disseminated the offensive material, leading to the registration of the FIR.
The petitioner’s lawyer argued that his client had been falsely implicated and that the prosecution had not proven that he was the creator or administrator of the WhatsApp groups. He held that mere membership in a group and the recovery of a mobile phone could not establish that the petitioner uploaded or disseminated the alleged content.
The defense further contended that the prosecution had not properly linked the WhatsApp account, SIM, phone number or the offensive posts with the petitioner. He also questioned 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, creating the possibility of misuse or tampering.
Opposing the bail plea, the Deputy Attorney General, assisted by the plaintiff’s counsel, argued that the case was not simply based on the plaintiff’s membership in WhatsApp groups. He stated that during the investigation six suspects were arrested and their mobile phones were seized. The petitioner’s phone was subjected to a forensic examination, which specifically linked it to the uploading, sharing and dissemination of the impugned material. The prosecution denied any tampering with the device and maintained that it remained secure throughout the forensic process.
Examining the legal framework under 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 interreligious, 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 simply from the accidental, involuntary or passive receipt of the content.
The court also held that in the context of WhatsApp groups, uploading, forwarding, sending, sharing, storing for later transmission or otherwise circulating offensive content may fall within the ambit of Section 11, where the other ingredients of the offense were laid down.
Discussing complicity under Section 109 PPC, the court ruled that criminal liability could not arise simply because a person created or managed a WhatsApp group. Instead, the prosecution must establish instigation, conspiracy, or intentional assistance supported by evidence.
The judgment extensively reviewed Indian court decisions as well as Pakistani jurisprudence, noting that while foreign judgments had only persuasive value, they consistently supported the principle that WhatsApp administrators could not be held automatically liable for posts shared by group members in the absence of legal provisions creating indirect criminal liability.
For analytical clarity, the court classified potential liability in WhatsApp group cases into different categories.
Regarding the creators and administrators of groups, he maintained that the mere creation or administration of a WhatsApp group does not in itself entail criminal liability. However, liability may arise when the administrator actively participated in the circulation of illicit content, facilitated or encouraged its dissemination, or when there is evidence establishing a common intention, conspiracy or complicity.
With respect to 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.
Instead, criminal liability must be based on an identifiable act such as intentionally uploading, forwarding, sharing, soliciting, or participating in the circulation of illegal content.
The ruling further held that persons who uploaded, forwarded, sent or circulated objectionable material were in a different situation because their liability was based on their own actions and not on vicarious 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 disseminating or preparing illegal content. Similarly, 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 petitioner’s alleged membership in WhatsApp groups but also on technical evidence.
The ruling indicated 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 offensive material stored in the “sent” folder of the WhatsApp backend.
Rejecting the defense challenge to the forensic evidence at the bail phase, the court observed that the mere passage of five weeks between the seizure of the phone and the preparation of the report did not in itself demonstrate tampering. It noted that the technical report recorded that the device had been received in sealed condition through a documented chain of custody, while no independent material had been produced to suggest unauthorized access or insertion of data after seizure.
The court held that although the presence of material in the “sent” folder alone cannot conclusively prove that the registered user 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 material against the petitioner, 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 dismissed the post-arrest bail application and clarified that its observations were provisional, were limited to deciding the bail petition and would not prejudice the trial. He also ordered the trial court to expedite the procedure as the suspect was still detained.
