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To charge WhatsApp admins or not – what experts say

“There is no law that I’m aware of that can hold the administrator of a WhatsApp group liable,” he stated/FILE

NAIROBI, Kenya, Jul 19 – Recently during a stakeholders’ breakfast meeting on election preparedness in Nairobi, Communications Authority of Kenya (CA) Director-General Francis Wangusi warned that WhatsApp administrators will be held responsible for any rumours, hate speech or misinformation that is spread in their groups.

He said that the administrators have a responsibility to ensure that members do not spread rumours and hate speech or misinform others.

Social media immediately went ablaze with debate about the validity of the statement and whether it was enforceable. The discussion elicited diverse opinions on social media making it a trending topic on Twitter in Kenya.

An excerpt from a similar case in 2016 between Ashish Bhalla versus Suresh Chawdhary in the High Court of Delhi, India immediately started spreading.

“Similarly, I am unable to understand as to how the administrator of a group can be held liable for defamation even if any, by the statements made by a member of the group. To make an administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation,” reads part of the ruling.

“When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the administrator liable, therefore. It is not as if without the administrator’s approval of each of the statements, the statements cannot be posted by any of the members of the group on the said platform,” the ruling continued.

While the social media user who posted the image argued that it can form part of precedence in Kenya, a prominent Kenyan advocate who didn’t want to be quoted for professional reasons disagrees.

“It can be persuasive but the court isn’t bound to arrive at the same conclusion. Cases that are persuasive are the ones that are made by a court in the same level. Decisions of foreign courts have a similar effect. They can be used to persuade the judge but the judges have the discretion to decide the matter either in line with the ruling or not,” he said.

On the matter of WhatsApp group administrators being held liable for what is posted in the group, he disagrees with Wangusi.

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“Each person is liable for their own actions. An administrator has no veto power or a legal obligation on what is posted,” he said.

Mugambi Laibuta, a constitutional lawyer who has represented the Bloggers Association of Kenya (BAKE) members and trains on the law of the Internet also disagrees with Wangusi.

“You can’t give policing powers to WhatsApp administrators,” he said. “In fact, the statement is based on an assumption that WhatsApp group administrators look at the content posted full time,” he added.

He, however, agrees that according to the National Cohesion and Integration Act, the body can apprehend anyone who is caught spreading propaganda in WhatsApp groups.

“The person who has posted any information that is inflammatory can be held responsible if the information reaches the hands of the authority,” he affirmed.

Kennedy Kachwanya, BAKE chairman urges WhatsApp groups to have rules of engagement and strictly enforce them.

“As an individual and you are in a group, you shouldn’t entertain members who share inflammatory content. All the groups I belong to have clear rules and regulations that if breached, there are consequences,” he said.

Laibuta, however, encouraged the authorities to familiarise themselves with some of these platforms so that they can enforce the law effectively.

“The authorities need to know how the platform works. For example, if someone posts information, I can delete it on my phone but it has already gone to all the members of the group. How then do you hold the administrator responsible?” he asked.

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He further added that there is no law he is aware of that can hold the administrator liable.

“There is no law that I’m aware of that can hold the administrator of a WhatsApp group liable,” he stated.

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