Author: Sinchan Chatterjee
I) Background
In July of 2024, Asian News International (ANI) moved the Delhi High Court (DHC) with a petition of defamation against the Wikimedia Foundation, alleging certain information on their Wikipedia page was published maliciously to tarnish their reputation. The page described ANI as “propaganda tool for the incumbent central government, distributing material from fake news websites”. However, the statement referenced multiple news organizations – such as the Diplomat, the Caravan, the Politico and BBC News. Subsequently, Wikimedia was ordered to disclose the names of the editors of the page, and the DHC threatened to revoke their safe-harbour protection and shut down the website on failure to comply. Wikimedia eventually agreed to provide the Basic Subscriber Information – (user’s name, address, email address, phone number and other identifiers) in a sealed file.
The primary legal questions arising are whether the court is justified in ordering Wikimedia to furnish names of their editors, and if non-compliance can lead to withdrawal of their safe-harbour protection as an intermediary, and the extent of liability that can be ascertained on Wikipedia, due to it being an intermediary with a community-driven platform. Additionally, the high-court ordered Wikimedia to take down one of their pages detailing the ongoing proceedings, the article shall also examine any “chilling effect” this might create over the free-speech jurisdiction of online publication in India.
II) Is Wikipedia’s safe-harbour status under threat?
The safe-harbour principle protects intermediaries from liability for third-party content on their website. However, the intermediary cannot initiate, select or modify the content, and must expeditiously remove content upon notification of illegality, as per Section 79 of the IT Act. Intermediaries are provided with such protection in order to avoid over-prosecution.
In instances of promulgation of fake or misleading information, the primary liability rests on the content creators posting the information on the platform. However, intermediaries such as social media platforms have specific obligations to comply with, failure of which can lead to attestation of liability on them. This includes removing misleading content in case of a court order or a government notification, or due to non-compliance with their due diligence requirements under section 79 of the IT Act and Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules). Additionally, failure to comply with these provisions might lead to the withdrawal of safe-harbour protections that shield them from liability for third-party content – leaving them vulnerable to lawsuits and criminal charges.
Rule 3(1)(b) of the IT Rules lays down that an intermediary must undertake “reasonable efforts” to cause users on its platform to not publish or upload any information that violates any law in India. Rule 3(d) further explains that upon receival of a court order informing an intermediary of the illegality of the content, they shall remove or disable access of such content. The has been validated in the Shreya Singhal v. Union of India (2015) , where the Supreme Court interpreted the clause to mean that only after an intermediary receives a notice from the government, or a court order that unlawful acts in relation to Article 19(2) have been committed, and despite that, fails to remove or disable access to such material, can this safeguard be taken away from them. The same was again reiterated by the DHC in the Flipkart Internet Private Limited v. State of NCT of Delhi (2022) case. Even in matters of criminal liability, the safe harbour protects the intermediary. In the Flipkart case, the DHC interpreted section 79 of the IT Act to mean that intermediaries shall receive the safe-harbour protection unless they play an active role in the commission of an offence, where they may lose their immunity.
In the present case, Wikimedia was asked to take down its content due to ANI alleging it to be defamatory in nature, which is a criminal offence under section 356 of the Bharatiya Nyaya Sanhita. Assuming that the content published is defamatory in nature, what deems greater interest in the present matter is the threat of Wikimedia losing its safe-harbour protection based on the same. In the absence of a court order or governmental notification informing Wikimedia of any illegality on their platform with respect to their article on ANI, its actions may be viewed as consistent with the expectations under section 79 of the IT act and the IT Rules. It cannot be argued that drawing attention towards the alleged defamation is standing enough for Wikipedia to remove their content both under the IT Act and the IT Rules.
Another aspect to be noted is the model followed by Wikipedia to moderate its content. The platform has volunteers who fact-check the content being uploaded to the page. The content is only approved if it has reliable sources, and no unpublished opinion can be freely published on the Wikipedia mainspace. Further, it also provides a list of Do’s and Don’ts for the editors who add content. Post the initiation of the case, Wikipedia has also restricted edit access to the ANI page via its “extended confirmed protection” feature. Only those volunteers with an editor account of no less than 30 days and with at least 500 edits are permitted edit-access to the page. This would result in reducing the pool of volunteers to only those who have been complying with Wikipedia’s policies and guidelines on neutrality. These guidelines of Wikipedia are suggestive of the reasonable efforts being taken to prohibit violative content being published on their platform.
Since the initiation of the dispute, Wikimedia has taken reasonable steps to control the nature of access the article on ANI receives on its platform. In light of this, it is pertinent to highlight that such threat to withdrawal of an intermediary’s safe-harbour protection seems like a step away from the previous stance taken by the judiciary on the matter, where intermediaries have even recognized their right to be exempted criminal liability due to the higher threshold of burden of proof involved in such instances. The statement made by the DHC in this case is rather unprecedented, and showcases the possibly making the provision more stringent, something which has been reverberated by the MeitY in the past as well. In 2023, the erstwhile IT minister had questioned the relevance of this provision in light of the varied functions of online intermediaries in the present digital world.
III) Constitutional implications of this order
Through the course of this dispute, the DHC has, on multiple occasions insisted Wikimedia to produce the names of the editors, and their initial reluctance to the same led to them being held in contempt. Wikimedia claimed that it did not have the requisite user-information, but the level of freedom exercised by editors can be dampened following the summoning of editors’ information in this dispute. This would impact the quality of the information being published on the pages of Wikipedia. This is suggestive of creation of a chilling-effect on the fundamental right under article 19(1)(a) of the Indian Constitution.
In the Ram Jethmalani v. Subramaniam Swamy (2006) case, the Court observed that “if a person is under fear of being sued, he may not express himself freely on public issues, and this would chill the public debate.” The basic understanding of what can create a chilling effect is the hesitancy of an individual to enter into an enterprise due to information being available to extra-legal, governmental or any other institution, despite the legality of their actions.
Another aspect of potential threat to freedom of speech and expression has been the takedown of the dispute-page on Wikipedia. ANI filed a contempt of court against Wikipedia for not deleting the page, despite a court order on the takedown. This power was exercised by the DHC under Article 215 of the Indian Constitution that provides a high court with the power to “punish for contempt of itself”. Additionally, according to section 2(c)(iii) of the Contempt of Courts, 1971, any written statement that might “potentially interfere or obstruct a judicial proceeding”, the court can exercise its powers to hold the individual or organization in contempt. The same can also be understood from a constitutional perspective since Article 19(2), which enlists contempt as a reasonable restriction to freedom of speech and expression.
CJI Hidayatullah, in the R.C. Cooper v. Union of India (1970) case held that a court of law does not enjoy blanket immunity from fair criticism, and only those indulging in vilification of a court in the process of their critique must be brought under the scrutiny of alleged contempt. The same was once reiterated in the Re: S. Mulgaokar case, and it was held that only when obvious distortion or criticism is involved in a manner that might lead to destruction of the judiciary’s standing amongst the public, should this weapon be utilized.
What needs to be understood is the distinction between incendiary statements hampering the decision-making of the judiciary, and factual reporting of an impending suit. There is no prohibition on the latter, and it bears necessity to understand if such an action can be deemed constitutional, since it has the potential to curtail the Freedom of Speech and Expression under article 19(1)(a). Wikipedia primarily presents factual information supported by citations, which suggests that its reporting is unlikely to cause substantial interference with legal proceedings. The question arises whether a mere factual account can be deemed as potentially obstructive under the legal interpretations of contempt. The nature of Wikipedia makes us question whether its reporting can even cause “substantial interference” or might tend to create substantial interference in a legal proceeding. Currently, the remnants of the taken down article, which is predominantly a discussion page on the dispute, showcase the content of the page before the takedown order was passed. It needs to be highlighted that the page seems to have iterated the summon order of the editors with much more detail, similar to complementary other news organizations reporting on the matter.
The question remains if the rationale behind the takedown can be equated to the publishing platform being a party to the suit. It is yet to be seen if such an order can be considered “reasonable” under article 19(2).
V) Shifting trends towards Community Notes
The Bombay High Court’s dismissal of the fact-checking units (FCUs) established under the IT Rules in the Kunal Kamra v. Union of India (2024) case, which attempted to deviate from the current rules of liability for intermediaries, also highlighted the judiciary echoing similar concerns regarding the threat online free speech is under.
Importantly, there have been recent developments via policy changes by social media platforms to remove their private FCUs, and adopt an approach similar to X (erstwhile Twitter), in using ‘community notes’ on misleading posts. Mark Zuckerberg, the founder of Meta, has suggested the need for such a change to curtail over-censorship and embrace free speech more holistically. This decision also comes in light of the perennial failure of FCUs to remain independent, and from a history of consistent errors, highlighting the need to simplify the policy. Community notes have incorporated the feature of independent contributors to highlight misinformation on X’s platform, with no interference from the platform on its content. Information on X has thus become more user-oriented due to this feature and a similar corollary can be drawn between its feature and Wikipedia’s volunteers who fact-check content creators on the platform.
While at the global level, we notice a paradigm shift in how online content should be moderated, with less emphasis on creating independent FCUs, the outcome of this dispute may be seen as contradicting the trend.
Conclusion
The recent legal developments involving ANI and the Wikimedia Foundation pose some concerns to freedom of speech and expression in India. The DHC’s orders compelling Wikimedia to disclose editor identities and remove content raise critical questions about the balance between protecting reputations and safeguarding free speech under Article 19(1)(a) of the Indian Constitution. As the matter progresses, its outcome will likely shape the future of open-access platforms and their ability to remain at the forefront of free and reliable information in a globally connected world.
Additionally, with a shift of global-intermediaries at large to community-driven content moderations, the implications for democratic discourse are profound, as the judiciary’s approach may set a precedent that contrasts with the essential role of platforms such as Wikipedia in facilitating open dialogue and information sharing.
The views expressed are solely those of the author and are not affiliated with the organization.
