The Delhi High Court Monday observed that nothing can be worse than calling a news agency a stooge of the government or an agent of an intelligence agency [Wikimedia Foundation Inc v. ANI Media Private Limited & Ors]

A Bench of Chief Justice Manmohan and Justice Tushar Rao Gedela made the remark while hearing Wikipedia’s appeal against a single-judge's order directing it to disclose the identity of users who have allegedly included defamatory statements on ANI's Wiki page.

The Court observed that ANI's suit discloses very serious allegations of defamation.

"We asked you, put your client in the same place as the respondent stands before us. You would have to admit before us that they are per se scandalous, defamatory, if not proven to be true. You are accusing someone of being a puppet of a central intelligence agency. I think nothing can be worse for a news agency than to be called a puppet of an intelligence agency, stooge of the government. If that is true, the credibility goes," Justice Manmohan told counsel for Wikipedia.

The Court went on to say,

"Biggest abuse in Parliament used to be that this opposition party leader is a CIA agent. When these allegations are made, these are serious...You will say you are an intermediary, I have done nothing. Who will defend these statements?"

The Court also reiterated its concern that the suit filed by ANI would not proceed if the Wikipedia does not disclose the user information.

"Otherwise, he [ANI] will be remediless. One is saying you defend the matter, one is not saying your defence is struck off...If you (Wikipedia) don't disclose the name of the author, you take the defence of the intermediary, it will all become a cloak to hide behind the veil of anonymity and to ensure that the case does not proceed."

However, the Court also praised Wikipedia for serving the public and said it has been a huge service to mankind.

"Your client is doing some amazing work, providing open source encyclopaedia," Justice Manmohan said.

This was in contrast to earlier hearings, when the High Court had slammed Wikipedia for opposing the disclosure.

Sealed Cover or confidentiality club?

Senior Advocate Akhil Sibal, representing Wikipedia, today argued that the High Court in earlier instances has ordered such disclosure in sealed covers.

"Many such orders are in the first instance ...in the sealed cover and it is thereafter the Ld. Single Judge passes a direction for disclosure often with certain caveats on confidentiality and so and on," he said.

However, the Court asked whether this had been argued before the single judge.

"The Ld. Judge is very, very cautious in issuing notice on day one, asking for a reply. When the reply does not come, no argument advanced before him that this must not be done," it added.

Advocate Sidhant Kumar, appearing for ANI, submitted that whatever information is disclosed will only be used for the purposes of serving summons.

"I will not disclose it to any third party as far as information of defendants is concerned. I am not interested in either vilifying or in any manner causing any harm, except to pursue my remedy," Kumar said.

Meanwhile, Sibal cited various judgments to argue that a prima facie test must be met before passing such order of disclosure.

"Yes, there may have been delay in filing the affidavit...I may not have addressed all this, but still that lapse on my part should not blow the cover right away on the people whose identity is being disclosed," he added.

When the Bench pointed to Kumar's undertaking that the information would not be used for any other purposes, Sibal said that it may not be a solution to the issue.

However, the Court urged Wikipedia to consider it. In response, Sibal said he had already taken instructions that the Court can direct supply of information in a sealed cover as an appropriate approach.

"Once the identity is disclosed, nobody can control anything," Sibal said about ANI's undertaking.

The Court said Wikipedia can seek the formation of a confidentiality club in case it feared reprisals or any violence against its users.

"Then confidentiality club can be created, it can be only between the two counsel. It will not be between anyone else," Justice Manmohan said.

Sibal said the single judge can also consider if service can be done while also protecting the identities of the users. On confidentiality club, Sibal said he would seek instructions.

"I will put it to them. I don't know whether they would want to take on the responsibility of service every time, because it is not one case. The issue is the precedent, that will become precedent then every time we will have to undertake service," he added.

The Court will hear the matter next on October 28. The counsel were directed to submit brief notes before the next hearing.

Wikipedia takes down page on ongoing case

In an earlier hearing, ANI had told the Court about the Wikipedia page titled 'Asian News International vs. Wikimedia Foundation' published in relation to the present case. 

On October 16, the Court directed Wikipedia to take down the page and the comments with regard to Court's observations within 36 hours, saying that it may amount to interference in Court proceedings.

ANI had filed a contempt of court case last week alleging that the order had not been complied with. However, today it was submitted that the page has been taken down.

Accordingly, the Court closed the contempt of court case with regard to the 'Asian News International vs. Wikimedia Foundation' page.