Delhi High Court asks Wikipedia how it can claim to be an encyclopedia

The Delhi High Court Friday grilled Wikipedia for claiming itself to be an encyclopedia and standing in way of the Asian News International (ANI)'s demand for takedown of the defamatory edits made to the Wiki page about ANI.

Justice Subramonium Prasad also observed that Wikipedia might not be entitled to defend the defamatory edits since it claims to be only an intermediary.

"If you are an intermediary, why are you bothered? If somebody else has edited and that addition is without basis, then it comes down. They are not here to protect... D2, D3, D4 are editors and you are a mere wall. If you are a mere wall and somebody else has written those things and they are not prepared to come to the court, then why should I hear you. I would only see whether the opinion given in your encyclopedia does not depict the correct picture, as not a true representation of the article [hyperlinked source], the page comes down," the Court observed.

Though Wikipedia clarified that it was not defending the statements or edits made on Wikipedia's page about ANI, it sought to assist the Court in the matter, particularly with regard to the architecture of the platform.

ANI has sued Wikipedia for defamation. According to the news agency, Wikipedia allowed defamatory edits on its page which earlier referred to ANI as a "propaganda tool" for the present government.

The Court said it was "troubling" that Wikipedia was representing itself as an encyclopedia when it claims not to endorse what is written on the platform.

"What is troubling me is your representation to the people that I am an encyclopedia," Justice Prasad said.

It gave an example of the publication like Encyclopedia Britannica to state that encyclopedias usually come with authenticity.

"After saying encyclopedia, can you say that you do not endorse what Mr X and Mr Y have said on my encyclopedia without verifying its contents. 'Wikipedia, the free encyclopedia' that is your first sentence, what do you mean by that," the Court asked.

Wikipedia has left it for other people to manage the encyclopedia, the Court opined.

Senior Advocate Jayant Mehta, representing Wikipedia, submitted that the platform comes with a disclaimer that the information was based on secondary source.

"Wikipedia nowhere says I am factually accurate," Mehta said.

However, the Court asked when "somebody is crossing the lakshman rakha" drawn by Wikipedia, the platform would have to take responsibility for the policy put by it in public domain.

"I don't draw a laxman rekha, the law draws a laxman rekha," Mehta said.

The Court, however, reiterated that the disclaimer will not absolve Wikipedia of anything and it was not like the 'Kavach of Karna' for it.

Mehta said if ANI can prove that the assertions made on the page are not supported by secondary source and are defamatory, injunction order can be passed.

The Court observed that it would to have see at this stage whether the edits are per se defamatory for it to grant interim relief or that would be the matter of trial.

"The thumb rule in a 19(1)(a) is to bend in favour of the maker of the statement and not the vice versa," Justice Prasad said, while referring to the right to freedom of speech and expression under Article 19 of the Constitution.

ANI's counsel said it does not have to reach that threshold since the editors are private persons and not journalists.

"I have to show ex facie falsity," the Court was told.

The Court will continue hearing the matter on November 6

Earlier, the High Court had issued summons to Wikipedia and ordered it to disclose information about three people who made the edits on ANI's Wikipedia page.

However, Wikimedia Foundation appealed against the disclosure order and the issue is now pending before a Division Bench.

In the meantime, ANI is pressing its application for takedown of the defamatory edits on the page, which was heard today by Justice Prasad.

ANI say positive clarifications not put by Wiki

During the hearing, Advocate Sidhant Kumar, representing the ANI, argued that the page was an index of defamation against the agency.

Kumar further submitted that no further edits were being allowed on the page and that news agency's positive clarifications were not entertained by the platform.

"I am the largest video agency. It is not possible that not a single positive word is said [on the page]...," ANI's counsel submitted.

The news articles, which form the basis for the alleged defamation against ANI on its Wikipedia page, also came up for discussion during the hearing.

"There is not a single positive word to be said about me. The cabal of editors do not allow it," Kumar said while reading the alleged defamatory edits about it.

Kumar also said Wikipedia page says more than what the referenced articles have written. He also claimed that the news articles appear as opinion in their original publications.

He further argued that articles of publications like The Caravan and The Ken are behind paywall, unlike Wikipedia.

"According to him [Wiki]. it is not forum for opinion but a forum for fact. Therefore, it would give a completely different colour to the [original] speech," Kumar said.

Kumar also argued that net effect of the referenced articles may not be defamatory. He also said the positive side of The Caravan article has not found way to the Wiki page.

ANI also argued that Wikipedia cannot defend the edits as an intermediary. Kumar accused Wikipedia of obstruction, saying it was preventing the makers of the defamatory statements from being brought to the Court.

"I will be left remedy less if your lordship doesn't allow the injunction application to proceed," the counsel said.

Not a censor board, says Wikipedia

Wikipedia today told the Court that it was not a censor board and can take down a page only after an order is passed by the Court.

"Under a direction of the Court, I can take down a page but not on my own. I am not publishing, not even countenancing, not even supporting it. Please don't take it as that. That is the impression being created that is wrong," Senior Advocate Jayant Mehta submitted.

The submission was in context of another page on Wikipedia that detailed the developments of the ongoing court case filed against it by ANI. The page has since been taken down in compliance with an order passed by a Division Bench.

When the Court asked whether it does not even monitor the content put on pages, Wikipedia answered in negative.

"As an intermediary, I am not supposed to. Where does monitoring begin, where does it an end? I cannot monitor. As an intermediary, I am not involved in what somebody is putting up or somebody is not putting up. I don't approve of it. I don't publish it. I am not supporting those views or that publication".

Non-disclosure of user details

The Court today also questioned Wikipedia for not disclosing the identity of users who have made edits to the page.

Though Wikipedia argued that the disclosure order was under challenge, the Court said there was no stay on it by the appellate court.

Pertinently, ANI had made a statement before the Division Bench that it would not press its contempt of court application for non-disclosure during the pendency of Wiki's appeal.

The Court remarked that notwithstanding ANI's assurance to the Division Bench, it can proceed.

However, Wikipedia urged the Court against it, saying that the same would prejudice the appeal filed by it against the disclosure order.

Towards the end of hearing, the Court asked Wikipedia to clarify why the names of editors should not be disclosed by the platform as a policy.