In April 2016, two state governments issued directives seeking to regulate communication on WhatsApp, an internet-based instant messaging application used by more than 70 million people in India, largely on their mobile phones.

With increasing internet shutdowns, banning of mobile telephony and arrests for online content, it is not surprising that the government has sought to regulate this mode of communication.

Much like shutdowns, these directives pose a severe threat to the freedom of speech enjoyed by users online and are in clear violation of existing legal precedents.

Government directives

The district magistrate of Kupwara district of Jammu & Kashmir mandated the administrators of “WhatsApp news groups” and “social media news agencies” to register their groups at the District Social Media Centre through a circular issued on April 18, 2016.

It designated an informatics officer to "keep vigil” on the groups and placed the liability on group administrators for any "irresponsible remarks/deals".

In the same month, news reports indicated, the Jharkhand government issued an advisory for administrators of all social media groups to remove persons who share “incorrect/misleading information, antisocial tirade or anything seditious in nature” and report the same. A failure to report such information would land both the violator and the group administrator in jail.

These directives are inconsistent with the right to freedom of speech and expression as interpreted by the Supreme Court in Shreya Singhal v Union of India in March 2015, as per which any law restricting the freedom of speech is valid only if it is proximately related to the eight permitted restrictions in Article 19(2). In this case, the apex court struck down section 66A of the Information Technology Act for its chilling effect on speech for its “vague” and “over-broad” restriction on speech.

The Kashmir and Jharkhand directives prohibit conduct that is “irresponsible” and “incorrect/misleading or antisocial” respectively without referring to any legal provisions. The terms “antisocial” and “irresponsible” may encompass a range of activities and do not clearly elucidate what exactly is prohibited content. Further, directing WhatsApp administrators to remove individuals who post such content may result in self censorship of content by individuals.

The apex court had held that restrictions in the interest of public order are justified only when advocacy reaches the level of incitement. However, both these directives ignore these standards set out in Shreya Singhal. By burdening the WhatsApp administrators with responsibility to vet content on their groups on the basis of vague guidelines, the directives pave the way for arbitrary censorship and chilling effect, which could lead to the suppression of legal and legitimate content.

Arresting administrators

These directives come in the wake of a series of arrests in India for content circulated on WhatsApp. From June 2015 to June 2016, there were more than 20 arrests of WhatsApp users under various sections of the Indian penal code and IT Act. Particularly worrying incidents involved arrests of WhatsApp administrators even when they had not posted the allegedly inflammatory or defamatory content.

In August 2015, the Chattisgarh police arrested a WhatsApp group administrator for a video posted on the group by another member under section 153A, 153B and Section 504 of the penal code as well as the IT Act. In October 2015, police in the Latur district of Maharashtra arrested a WhatsApp group administrator and three others for content posted on the group.

Despite criticism for these arrests, law enforcement authorities continued to register cases against WhatsApp administrators. In May 2016, the Jharkhand police arrested one person for posting allegedly inflammatory content on a WhatsApp group and a case was also registered against the WhatsApp administrator.

The police stated that they would be “verifying if the administrator took any steps to ensure that the message was not circulated further”.

Three problems

The directives and arrests making the administrator responsible for posting of content on the group are problematic for a number of reasons.

First, it burdens private persons with the responsibility of deciding between legal and illegal content which may lead to overbroad restrictions and extreme censorship. Private parties do not have the legal knowledge or resources to subjectively determine the legitimacy of content, which is why Section 79 of the IT Act was read down in Shreya Singhal to prevent "takedowns" or removal of content on orders of intermediaries alone. Therefore, now placing this responsibility on WhatsApp administrators lends open the content to overbroad restrictions by administrators who may delete people from groups or threaten to complain against content that is legitimate, erring on the side of caution.

Second, the WhatsApp application is not designed in a manner to give WhatsApp group administrators’ editorial powers apart from the power to remove or add participants. They have no power to edit the content before it is posted. Further, if an existing administrator leaves the group the next administrator is randomly assigned by WhatsApp. As a result, a person may become the administrator without choosing to or even realising that they have become the administrator.

Third, it remains unclear how the WhatsApp administrator is being made liable. If the administrator is being considered liable for aiding the transmission of the messages by virtue of allowing participation in the group then he or she would also fall within the definition of an intermediary. By being an intermediary he or she attracts the safe harbour protection under Section 79. The apex court in Shreya Singhal directed that an intermediary need only take action on notification of illegality through a court or an executive order. In the absence of such orders the intermediary is protected from liability which should also extend to administrators of WhatsApp groups. Any such characterisation has the potential to impact various platforms like Hike messenger or Google docs or other shared or common group services.

Government directives and unclear policy regarding messaging applications like WhatsApp can undermine the freedom of speech and expression. These directives also ignore the clear mandate laid down by the apex court in Shreya Singhal on various counts. Curbing speech that incites violence is a valid concern. However, the government needs a better understanding of technology in order to develop clear, precise and more effective policies. The government and platforms like WhatsApp ought to engage on these policy matters to help carve out least restrictive measures in consonance with the law.

Parul Sharma is an Analyst at the Centre for Communication Governance at National Law University Delhi.