The ruling says criminal liability in social media app groups must rest on the person’s own identifiable actions
Teenagers pose for a photo while holding smartphones in front of a Whatsapp logo in this illustration. PHOTO: REUTERS
In a landmark judgment on criminal liability in WhatsApp groups, the Lahore High Court on Thursday ruled that merely creating or managing a WhatsApp group did not make a person criminally liable for every message sent by its members, while mere membership of a group, passive receipt of content or failure to leave it did not constitute a criminal offense either.
Justice Tariq Saleem Sheikh noted that criminal liability in cases involving WhatsApp groups must be based on a person’s own identifiable actions rather than their status as a group creator, administrator or member.
The court ruled that an administrator normally did not have the power to moderate or approve messages before they were published, and that they could not be held vicariously liable for objectionable content shared by others unless evidence showed common intent, conspiracy, support or active participation in circulating illegal material.
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The observations came while rejecting a post-arrest bail plea filed by a person arrested in a cybercrime case involving allegations of circulating blasphemous material through WhatsApp groups.
The petitioner had sought bail after arrest 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 (PCC11) along with the Electronic Penal Code (PCC11). Crimes Act (PECA), 2016.
According to the prosecution, the complainant was added to two WhatsApp groups where several members allegedly shared blasphemous posts. After preserving screenshots of the contents, he approached the FIA Cyber Crime Wing, which registered an enquiry. Another complaint relating to the same groups was later merged into the investigation following which the investigators concluded that the petitioner had uploaded, shared and disseminated the objectionable 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 established that he was the creator or administrator of the WhatsApp groups. He maintained that mere membership of a group and recovery of a mobile phone could not establish that the petitioner uploaded or disseminated the alleged content.
The defense further argued that the prosecution had not sufficiently linked the WhatsApp account, SIM card, phone number or the offensive posts to the petitioner. It also challenged the reliability of the technical evidence, arguing that the petitioner’s Vivo Y22 mobile phone, which was 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 Assistant Public Prosecutor, assisted by the petitioner’s counsel, argued that the case was not based solely on the petitioner’s membership of the WhatsApp groups. He claimed that six suspects had been arrested during the investigation and their mobile phones seized. The petitioner’s phone was subjected to a forensic examination which specifically linked him to the uploading, sharing and dissemination of the impugned material. The prosecution denied any tampering with the device and maintained that it remained secured throughout the forensic process.
While examining the legal framework under PECA, Justice Tariq Saleem Sheikh noted that Section 11 criminalized the preparation or dissemination of information through an information system or device that promoted or was likely to promote inter-religious, sectarian or racial hatred. The court noted that although the provision did not expressly use the word “intentionally,” the creation and dissemination of information were inherently voluntary acts, and criminal liability could not arise merely from the accidental, involuntary, or passive receipt of content.
The court also held that in the context of WhatsApp groups, uploading, forwarding, sending, sharing, storing for further transmission or otherwise circulating objectionable content can fall within the ambit of section 11, where the other ingredients of the offense were established.
The court discussed that under Section 109 PPC, criminal liability could not arise merely 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 decisions of Indian courts as well as Pakistani jurisprudence and noted that while foreign judgments had only persuasive value, they consistently supported the principle that WhatsApp administrators could not be automatically held liable for posts shared by group members in the absence of statutory provisions creating vicarious criminal liability.
For analytical clarity, the court classified potential liability in WhatsApp group cases into different categories.
With regard to group creators and administrators, it held that the mere creation or administration of a WhatsApp group did not in itself give rise to criminal liability. However, liability may arise where the administrator actively participated in circulating illegal content, facilitated or encouraged its dissemination, or where evidence demonstrated common intent, conspiracy or support.
With respect to ordinary members, the court noted that mere membership of a WhatsApp group, passive receipt of messages, remaining in the group or failure to leave it did not amount to preparation, mediation or support.
Criminal liability must instead be based on an identifiable act, such as uploading, forwarding, sharing, soliciting or intentionally participating in the circulation of illegal content.
The judgment further held that persons who themselves uploaded, forwarded, sent or circulated objectionable material stood on a different footing because their liability was based on their own actions rather than vicarious liability.
The court also noted that a mere emoji, expression of agreement or brief reaction to a message should not in itself be treated as dissemination or preparation of illegal content. An administrator’s failure to remove objectionable content similarly did not constitute automatic criminal liability unless accompanied by other legally relevant circumstances demonstrating facilitation, conspiracy, support or a statutory duty to act.
Applying these principles in this case, the court observed that the prosecution had relied not only on the petitioner’s alleged membership of the WhatsApp groups but also on technical evidence.
The judgment stated 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 infringing material stored in the WhatsApp backend “sent” folder.
The court rejected the defense’s challenge to the forensic evidence at the bail stage, noting that the mere lapse of five weeks between the seizure of the phone and the preparation of the report did not in itself establish tampering. It noted that the technical report recorded that the device had been received in a sealed state 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 does not conclusively prove that the registered user personally transmitted each message, the device had been recovered from the petitioner and at the bail stage he had not alleged that anyone else had access to or used the phone.
Concluding that there was sufficient incriminating material against the petitioner, the court found that the case did not fall within the scope of “further investigation” under section 497(1). 2, in the Criminal Procedure Act.
Accordingly, the Lahore High Court rejected the post-arrest bail application while clarifying that its observations were preliminary, limited to deciding the bail application and would not affect the trial. It also ordered the High Court to expedite the case as the suspect remained in custody.
