In a significant ruling on criminal liability in WhatsApp groups, the Lahore High Court held on Thursday that merely creating or administering a WhatsApp group did not make a person criminally liable for every message posted by its members, while mere membership of a group, passive receipt of content or failure to leave it also did not constitute a criminal offence.

Justice Tariq Saleem Sheikh observed that criminal liability in cases involving WhatsApp groups must be based on a person’s own identifiable acts rather than their status as a group creator, administrator or member.

The court ruled that an administrator ordinarily had no power to moderate or approve messages before they were posted and could not be held vicariously liable for objectionable content shared by others unless evidence showed common intention, conspiracy, abetment or active participation in circulating unlawful 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 circulating blasphemous material through WhatsApp groups.

The petitioner had sought post-arrest bail in FIR No. 57/2024, registered by the 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 of Electronic 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 content, he approached the FIA Cyber Crime Wing, which registered an inquiry. Another complaint regarding the same groups was later merged into the inquiry, following which investigators concluded that the petitioner had uploaded, shared, and disseminated the offensive material, leading to the registration of the FIR.

The petitioner’s counsel argued that his client had been falsely implicated and that the prosecution had failed to establish 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 defence further contended that the prosecution had not adequately linked the WhatsApp account, the SIM, the phone number, or the offending posts to the petitioner. It also challenged 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 assistant attorney general, assisted by the complainant’s counsel, argued that the case was not based merely on the petitioner’s membership in the WhatsApp groups. He submitted that six suspects had been arrested during the inquiry and their mobile phones seized. The petitioner’s phone was subjected to forensic examination, which specifically linked him with uploading, sharing, and disseminating the impugned material. The prosecution denied any tampering with the device and maintained that it remained secure throughout the forensic process.

While examining the legal framework under PECA, Justice Tariq Saleem Sheikh observed that Section 11 criminalised preparing or disseminating information through an information system or device that advanced or was likely to advance interfaith, sectarian or racial hatred. The court noted that although the provision did not expressly use the word “intentionally”, preparing and disseminating information were inherently voluntary acts and criminal liability could not arise merely from accidental, involuntary or passive receipt of content.

The court also held that, in the context of WhatsApp groups, uploading, forwarding, sending, sharing, storing for onward transmission or otherwise circulating offensive content may fall within the ambit of Section 11 where the other ingredients of the offence were established.

Discussing abetment under Section 109 PPC, the court ruled that criminal liability could not arise merely because a person created or administered a WhatsApp group. Instead, the prosecution must establish instigation, conspiracy, or intentional assistance supported by evidence.

The judgment extensively reviewed decisions from Indian courts as well as Pakistani case law, observing that while foreign judgments had only persuasive value, they consistently supported the principle that WhatsApp administrators could not automatically be 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.

Regarding group creators and administrators, it held that mere creation or administration of a WhatsApp group did not by itself attract criminal liability. However, liability may arise where the administrator actively participated in circulating unlawful content, facilitated or encouraged its dissemination, or where evidence established common intention, conspiracy or abetment.

With respect to ordinary members, the court observed that mere membership of a WhatsApp group, passive receipt of messages, remaining in the group or failing to exit it did not amount to preparation, dissemination, or abetment.

Criminal liability must instead be founded upon an identifiable act such as uploading, forwarding, sharing, soliciting, or intentionally participating in the circulation of unlawful 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 responsibility.

The court also observed that a mere emoji, expression of agreement, or brief reaction to a message should not, by itself, be treated as dissemination or preparation of unlawful content. Similarly, failure by an administrator to remove objectionable content did not automatically amount to criminal liability unless accompanied by other legally relevant circumstances demonstrating facilitation, conspiracy, abetment or a statutory duty to act.

Applying these principles to the present case, the court noted that the prosecution had relied not merely 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 offending material stored in the WhatsApp backend “sent” folder.

Rejecting the defence’s challenge to the forensic evidence at the bail stage, the court observed that the mere passage of five weeks between seizure of the phone and preparation of the report did not by itself establish 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 unauthorised access or insertion of data after seizure.

The court held that although the presence of material in the “sent” folder alone may not conclusively prove that the registered user personally transmitted every message, the device had been recovered from the petitioner, and at the bail stage, he had not claimed that anyone else had access to or used the phone.

Concluding that sufficient incriminating material existed against the petitioner, the court held that the case did not fall within the scope of “further inquiry” under Section 497(2) of the Code of Criminal Procedure.

Accordingly, the Lahore High Court dismissed the post-arrest bail application while clarifying that its observations were tentative, confined to deciding the bail petition, and would not prejudice the trial. It also directed the trial court to expedite proceedings as the suspect remained in custody.