The operator of Wikipedia has been given permission by a high court judge to challenge the Online Safety Act if it is categorised as a high-risk platform, which would impose the most stringent duties.
The Wikimedia Foundation has said it will be forced to reduce how many people can access the site in order to comply with the regulations if it is classified as a category 1 provider by Ofcom later this summer.
As a non-profit, the site said, it “would face huge challenges to meet the large technological and staffing needs” required to comply with the duties, which include user-verification requirements, stringent protections for users and regular reporting responsibilities to prevent the spread of harmful content.
The Wikimedia Foundation calculated that the number of people in the UK who access Wikipedia would have to be reduced by about three-quarters in order for the site to not qualify as a category 1 service, which is defined as a large user-to-user platform that uses algorithmic contender recommendations.
It said Wikipedia was different to other sites expected to be labelled as category 1 providers, such as Facebook, X and Instagram, because it was run by a charity and its users typically only encountered content that they sought out.
Mr Justice Johnson refused Wikipedia’s legal challenge in the high court on several grounds, but he noted that the site “provides significant value for freedom of speech and expression” and added that the outcome did not give Ofcom or the government “a green light to implement a regime that would significantly impede Wikipedia’s operations”.
Any decision to make Wikipedia a category 1 provider would have to be “justified as proportionate if it were not to amount to a breach of the right to freedom of expression”, he said, but he added that it would be “premature” to rule on this since Ofcom had not yet determined that Wikipedia was a category 1 service.
If Ofcom determines that Wikipedia is a category 1 service and this means Wikipedia is unable to operate as at present, Johnson suggested that the technology secretary, Peter Kyle, should “consider whether to amend the regulations or to exempt categories of service from the act” and said Wikipedia could bring a further challenge if he did not.
Phil Bradley-Schmieg, the lead counsel at the Wikimedia Foundation, said: “While the decision does not provide the immediate legal protections for Wikipedia that we hoped for, the court’s ruling emphasised the responsibility of Ofcom and the UK government to ensure Wikipedia is protected as the OSA [Online Safety Act] is implemented.
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“The judge recognised the ‘significant value’ of Wikipedia, its safety for users, as well as the damages that wrongly assigned OSA categorisations and duties could have on the human rights of Wikipedia’s volunteer contributors.”
Cecilia Ivimy KC, for the government, said ministers had reviewed Ofcom guidance and considered specifically whether Wikipedia should be exempt from the regulations and rejected that. She said they had decided that Wikipedia “is in principle an appropriate service on which to impose category 1 duties”, and how ministers had arrived at that choice was not “without reasonable foundation nor irrational”.
A government spokesperson said: “We welcome the high court’s judgment today, which will help us continue our work implementing the Online Safety Act to create a safer online world for everyone.”
