Wikipedia loses challenge against Online Safety Act verification rules.

Wikipedia which supports the online encyclopedia has lost a legal challenge to new Online Safety Act rules which it says could threaten the human rights and safety of its volunteer editors. The Wikimedia Foundation, which is a non-profit entity wanted a judicial review of regulations which could mean Wikipedia has to verify the identities of its users. But it has reiterated that despite the loss, the judgement “emphasised the responsibility of Ofcom and the UK government in ensuring Wikipedia’s protection.

The government told the Media Personnel, that it welcomes the High Court’s judgment, “which will help us continue our work implementing the Online Safety Act to create a safer online world for everyone“. Judicial reviews challenge the lawfulness of the way in which a decision has been made by a public body.

In this case the Wikimedia Foundation and a Wikipedia editor tried to challenge the way in which the government decided to make regulations covering which sites should be classed “Category 1” under the Online Safety Act – the strictest rules sites must follow. It argued the rules were logically flawed and too broad, meaning a policy intended to impose extra rules on large social media companies would instead apply to Wikipedia.

In particular the foundation is concerned the extra duties required – if Wikipedia was classed as Category 1 – would mean it would have to verify the identity of its contributors, undermining their privacy and safety. The only way it could avoid being classed as Category 1, would be to cut the number of people in the UK who could access the online encyclopedia by about three-quarters, or disable key functions on the site. The government’s lawyers argued that ministers had considered whether Wikipedia should be exempt from the regulations but had reasonably rejected the idea.

‘Left the door open’, the court rejected Wikimedia’s arguments. But Phil Bradley-Schmieg, Lead Counsel at the Wikimedia Foundation, said the judgment did not give Ofcom and the Secretary of State, in Justice Johnson’s words, “a green light to implement a regime that would significantly impede Wikipedia’s operations”. And the judgement makes it clear other legal challenges could be possible.

Wikimedia could potentially challenge Ofcom’s decision making if the regulator did ultimately decide to classify the site as Category 1. And if the effect of making Wikipedia Category 1 meant it could not continue to operate, then other legal challenges could follow. “Wikipedia has been caught in the stricter regulations due to its size and user created content even though it argues (convincingly) that it differs significantly from other user-to-user platforms“, said Mona Schroedel, data protection litigation specialist at law firm Freeths. “The court’s decision has left the door open for Wikipedia to be exempt from the stricter rules upon review“.

The communications regulator Ofcom, which will enforce the act, briefed the media: “We note the court’s judgment and will continue to progress our work in relation to categorised services and the associated extra online safety rules for those companies”.

MR JUSTICE JOHNSON – Approved Judgment:

Wikimedia v Secretary of State

Mr. Justice Johnson:

1. The first claimant is a charitable foundation which hosts the online encyclopedia, Wikipedia. The second claimant is a user and editor of Wikipedia. The claimants challenge the Secretary of State’s decision to make regulation 3 of the Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions)

Regulations 2025. That regulation prescribes the criteria for “Category 1” online services, which are made subject to many statutory duties.

2. The claimants say that the criteria are logically flawed. They were intended to capture large profitable social media companies where anonymous content can “go viral”. However, they were (say the claimants) drawn too broadly with the result that Wikipedia is likely to qualify as a Category 1 service even though that was never the

policy intention. If Wikipedia is a Category 1 service, that will fundamentally change the way it operates. Either the number of people in the United Kingdom who access Wikipedia will have to be reduced by around three quarters, or important functionality corresponding to Category 1 threshold criteria must be disabled, or else the first claimant will have to comply with duties that are not reasonably manageable and which

are incompatible with the way in which Wikipedia operates.

3. Allowing for the way in which the arguments were ultimately advanced (and slightly re-numbering and re-characterising the grounds accordingly), the claimants say that the decision to make the regulation was flawed on the grounds that:

• the Secretary of State failed to comply with a duty imposed by paragraph 1(5) of schedule 11 to the Online Safety Act 2023 to take into account the likely impact of the number of users of the user-to-user part of a service, and its functionalities, on the ease, speed and breadth of the dissemination of user-generated content.

• the decision was irrational because it was based on flawed reasoning.

• the decision is incompatible with articles 8, 10 and 11 of the European Convention on Human Rights.

• the decision is incompatible with article 14 of the Convention (or is otherwise irrational) because it fails to distinguish between different types of online provider.

4. There is a degree of urgency in these proceedings because they are, in effect, holding up part of a complex regulatory process that needs to be worked through before important parts of the Act take effect. For that reason, the claim was listed for hearing on an expedited basis for the court to consider both the question of whether permission should be granted to bring a claim for judicial review and, if so, whether the decision to make regulation 3 was flawed on one or more of the grounds asserted by the claimants.

5. BLN has filed a witness statement, as has Philippe Bradley-Schmieg who is the first claimant’s in-house lead counsel. The defendant has filed a statement from Talitha Rowland, Director, Security and Online Harms at the Department for Science, Innovation and Technology. Ms. Rowland has been in her current post throughout the

period when consideration was given to the making of the 2025 regulations. She provided senior civil servant sign off on all relevant Ministerial Submissions, and she engaged regularly with the policy team and with ministers and their officials throughout the decision-making process.

Team Maverick