Blasphemy case: WhatsApp group admins, members not liable for posts shared by others, rules LHC

LAHORE: The Lahore High Court (LHC) has issued important legal guidelines on criminal liability in cases involving blasphemous content shared in WhatsApp groups, ruling that group administrators and members cannot automatically be held responsible for posts made by other participants.

Justice Tariq Saleem Sheikh made the observations while dismissing the post-arrest bail petition of Syed Abdul Mannan in a case registered by the Federal Investigation Agency’s (FIA) Cyber Crime Wing under Sections 295-A, 295-B, 295-C, 298-A and 109 of the Pakistan Penal Code (PPC), as well as Section 11 of the Prevention of Electronic Crimes Act (PECA), 2016.

According to the prosecution, the complainant was added to two WhatsApp groups where several members allegedly shared blasphemous and sacrilegious material.

The complainant preserved screenshots of the posts and filed a complaint with the FIA Cyber Crime Wing in Lahore, leading to the registration of Inquiry No. 940/2024 on April 4, 2024. During the inquiry, the FIA received another complaint regarding the same WhatsApp groups.

The investigation concluded that Syed Abdul Mannan had uploaded, shared and disseminated the offensive material, following which FIR No. 57/2024 was registered against him.

The petitioner’s counsel, Usman Bhatti, argued that his client had been falsely implicated and that the prosecution had failed to establish that he was either the creator or administrator of the WhatsApp groups.

He further submitted that the petitioner’s alleged connection to the groups was based solely on his membership and the recovery of a mobile phone, which, by itself, did not prove that he had uploaded, shared or disseminated the offensive content.

Opposing the bail plea, Assistant Attorney General Muhammad Nasim Saqlain argued that the allegations were not based merely on the petitioner’s membership of the WhatsApp groups.

He submitted that six accused, including the petitioner, were arrested during the inquiry and their mobile phones were seized. The petitioner’s device was sent for forensic examination, and a technical analysis report dated May 17, 2024, linked him to the uploading, sharing and dissemination of the objectionable material.

While dismissing the bail petition, the court clarified the scope of criminal liability for WhatsApp users under PECA and the Pakistan Penal Code.

The judgment observed that neither PECA nor its rules create a separate criminal offence against every creator, administrator or member of a WhatsApp group. The court held that the prosecution must still establish all essential ingredients of the offence against each accused.

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The court further noted that Section 38 of PECA deals with service providers and does not directly govern the liability of WhatsApp group creators, administrators or members.

Referring to a judgment of the Bombay High Court, Justice Sheikh observed that a WhatsApp group administrator has only limited powers to add or remove members and does not possess the ability to regulate, moderate or approve messages before they are posted.

The court ruled that a group administrator cannot be held responsible for objectionable posts shared by another member merely because of his administrative status.

However, the court clarified that liability may arise where a group is created for an unlawful purpose, or where the administrator personally participates in sharing the content, facilitates or encourages its circulation, or acts in furtherance of a common intention, conspiracy or abetment established through evidence.

“It would be unsafe to treat an administrator’s silence or inaction as dissemination in the absence of some other legally relevant circumstance,” the judgment observed, adding that each case must be decided on its own facts.

“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 judgment noted.

Ordinary members

The court also ruled that mere membership of a WhatsApp group, passive receipt of content, continued presence in the group, or failure to exit the group does not constitute preparation, dissemination or abetment under Section 11 of PECA or Section 109 of the PPC.

According to the judgment, criminal liability must be based on a specific act or legally relevant omission attributable to the accused, coupled with the intention or knowledge required by law.

The court said such acts may include uploading, forwarding, sharing, soliciting, storing for onward transmission, or otherwise intentionally participating in the circulation of offensive material.

The judgment further held that a person who personally uploads, forwards, sends or circulates objectionable content may be held criminally liable based on his own conduct rather than on any vicarious responsibility.

Emoji

The LHC also observed that a mere emoji, brief reaction or expression of agreement in a WhatsApp group should not, by itself, be treated as preparation or dissemination of unlawful content.

Whether such conduct amounts to abetment by instigation, conspiracy or intentional aid under Section 109 of the PPC, the court said, would depend on the nature of the alleged offence, the surrounding circumstances, the reaction itself, and the accused’s conduct before and after the communication.