Wikimedia Foundation Loses First Court Battle To Swerve Online Safety Actregulation
Wikipedia today lost a legal battle against the UK’s tech secretary to tighten the criteria around the Online Safety Act 2023 (OSA), as it seeks to exclude itself from the strictest regulations.
The Wikimedia Foundation argued that the criteria for Category 1 services, as defined by the OSA, were too broad and would see its online encyclopedia unfairly grouped together with social media and porn giants.
The ruling does not indicate that either tech sec Peter Kyle or Ofcom, the regulator responsible for the UK’s OSA, were wrong to define the service categories in the way they did, or to introduce the Act in the first place.
However, Mr Justice Johnson said that his ruling [PDF] should not be confused as a “green light” for Ofcom and Kyle to “implement a regime that would significantly impede Wikipedia’s operations.”
Wikipedia initially challenged the OSA in general, and the Category 1 criteria on four grounds, but the judge dismissed all four grounds, though he said he would permit Wikimedia to claim judicial reviews on two of the grounds.
These were that Secretary of State Kyle allegedly “failed” to consider the potential impact of the OSA on the number of users of the user-to-user part of a service, and its functionalities – including the speed and breadth of the dissemination of user-generated content. The second ground that failed but which the judge will allow Wiki chiefs to claim a judicial review on, was that the decision by the Secretary of State to create the OSA regulations themselves was allegedly “irrational” because it was “based on flawed reasoning.”
Crucially, Ofcom has yet to rule on whether Wikipedia is a Category 1 service – which would mean the contested rules apply to it – although it is expected to do so by the end of summer.
If Ofcom decides that Wikipedia is not a Category 1 service, the judge continues, then no further issue will arise.
Mr Justice Johnson noted in his ruling that if Kyle or Ofcom does end up filing it in the Category 1 box and this hurts Wikipedia’s ability to operate, the Secretary of State might have to have a rethink:
If Ofcom permissibly determines that Wikipedia is a Category 1 service, and if the practical effect of that is that Wikipedia cannot continue to operate, the Secretary of State may be obliged to consider whether to amend the regulations or to exempt categories of service from the Act. In doing so, he would have to act compatibly with the Convention. Any failure to do so could also be subject to further challenge. Such a challenge would not be prevented by the outcome of this claim.
If the regulator decides that Wikipedia falls under Category 1, the website would have to implement the same identity-verification tech as social media and pornography sites since July 25.
In the organization’s view, the consequences of it having to do so would be extensive and damaging for its users’ privacy.
In a blog post published in July, before its claim was heard, the Wikimedia Foundation argued that if it were to be Category 1’d, it would threaten the privacy of its contributors and potentially put them in hot water overseas.
“In addition to being exceptionally burdensome, this requirement – which is just one of several Category 1 demands – could expose contributors to data breaches, stalking, lawsuits, or even imprisonment by authoritarian regimes,” it wrote.
The Foundation’s lead counsel, Phil Bradley-Schmieg, said a week prior to the hearing: “Our concerns on the looming threats to Wikipedia and its contributors remain unaddressed.
“We are taking action now to protect Wikipedia’s volunteers, as well as the global accessibility and integrity of free knowledge. We call on the court to defend the privacy and safety of Wikipedia’s volunteer contributors from flawed legislation.”
Wikimedia Foundation updated its blog today following Mr Justice Johnson’s ruling, acknowledging that while “the decision does not provide the immediate legal protections for Wikipedia that we hoped for, the court’s ruling emphasized the responsibility of Ofcom and the UK government to ensure Wikipedia is protected as the OSA is implemented.”
It went on to highlight the positives it took from the decision, including that Ofocm must not impede the organization’s operations, and that it could face legal consequences if it defied that order.
The nonprofit also acknowledged Mr Justice Johnson’s suggestion that Ofcom may either need to find a flexible interpretation of the legislation, or send it back to parliament to have it amended, if it could not do so, in order to protect Wikipedia, which “has content of democratic importance.”
A spokesperson from the Department for Science, Innovation, and Technology (DSIT) 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.”
The Register contacted Ofcom for more information. ®
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