(This is in continuation of the earlier article)
The circular issued by INS r(Indian Newspaper Society) the posting of some publications in certain WhatsApp groups by over zealous members has the following advise.
1. Take legal action against offenders, especially against WhatsApp and Telegram admins who’re offending and trigger legal notices (WhatsApp group admins are liable for anything illegal that happens in their groups)
2.Additionally, also for any legal action taken, publish few news stories to talk about the huge fines and lawsuits initiated against offenders to deter others from doing it.
I would like to draw the attention of the INS secretariat to the following.
Media often accuses the Government and the Police when they take action against the journalists with the advise “Don’t Shoot the Messenger”. It is common for investigative journalists to adopt bribing and other illegal means to obtain a story which these publications gladly publish. Has INS ever sent any advisory to the publications that their journalists should not adopt such practices or use ethical means of publishing articles without taking bribes?
Suddenly INS has decided to shoot the WhatsApp admins instead of the individual member who has infringed. The threat itself is illegal and violates the principle of “Free Speech” by creating a “Chilling Effect” as discussed by Supreme Court in the Shreya Singhal case.
INS secretariat must learn the law that WhatsApp Admin is only a manager and not an “Editor”. The messages donot get moderated and get posted directly because the person posting the message sends a message to WhatsApp group server and the server distributes it to the group. The “group” only represents a mailing list maintained by the WhatsApp server and the admin has no control other than removing a member.
Further message in the group represents only what is meant for the members and not for public. News papers are shared by family members and in libraries it is shared by many others. Will INS go after the librarians also? If not on what grounds do you discriminate against the WhatsApp admin? Your suggested action is therefore discriminatory and against public policy. If properly pursued INS registration may have to be suspended and cancelled for acting against public policy.
INS secretariat may kindly read the following article where I have explained the WhatsApp aspects in some what more detail.
“police target WhatsApp admins and FaceBook posters once again”
Police, Prosecutors and Judiciary: Please Don’t Create Fake Laws out of your misinterpretation
It is wrong to say that WhatsApp group admins are responsible for all that happens in the group.
If in a news paper an illegal advertisement appears, will you put the Editor in jail?.
In Information Technology Act there is some thing called “Due Diligence” and the WhatsApp admin’s due diligence has certain responsibilities. As soon as a prima facie illegal activity takes place, the Admin has to advise the member to withdraw the post since the post can be withdrawn only by the member who has posted. The only punitive action the Admin can take is to remove the member which is like sacking a reporter for one fake report. Many WhatsApp admins do it when the message is sensitive.
Please let me know whether you advise your news papers to sack the reporters if any of the reporters send a wrong report? If not why treat WhatsApp admins differently?
Secondly, the advise to harass the WhatsApp admins for the infringement with huge fines and further defaming them with publicity because the publication is in charge of its own publication is not a proper advise. It is a conspiracy to threaten members of public and violate the copyright law which may provide for reasonable compensation in case of violation as determined by a Court.
First of all in any Copyright infringement, one has to see whether the person infringing made any unfair gain by the infringement and whether there was any notice of copyright etc. The Courts will consider what is a reasonable penalty. Civil claim has to have some relationship to the loss suffered by the victim and wrongful gain made by the offender. Arbitrarily claiming a large amount is not provided in law.
If Newspapers are losing customers because they have become irrelevant in the age of TV and Social media, dont’ suggest them to recover their losses by suing the WhatsApp admins. The WhatsApp admins of groups where the kind of infringement have taken place will be not worth even a few thousands of rupees for claiming compensation. The publication will not get even the lawyer’s fee for notice in return. The publication can however bribe a policeman and try to harass the WhatsApp admin and both the Police , the publication and INS would be liable for human right violations.
INS as a society of responsible publications should show some maturity before issuing such circulars.
As a remedy, INS should withdraw the part of the circular which targets the WhatsApp./Telegram admins and apologize to the community. You are well within your rights to advise the publications to institute security measures to prevent downloading which many publications do. If you had not done so so far, it shows your incompetence. If your members donot want to spend money on hosting a secure website, you cannot advise them to go after WhatsApp admins.
I look forward to a positive action from your end.
Naavi
Sir, does INS refer to Indian Naval Service or a different organization?
In this context it is Indian Newspaper Society