Delhi High Court slams Wikipedia for refusal to divulge identity of those who edited ANI's page

The Delhi High Court on Monday questioned Wikipedia's stand to oppose the disclosure of information of its users who have allegedly made defamatory edits on ANI's Wikipedia page.

The Division Bench of Chief Justice Manmohan and Justice Tushar Rao Gedela said Wikipedia would be putting its intermediary protection under the Information Technology (IT) Act at risk by taking such stand.

"You are the service provider, you run some risk of your protection, safe harbour being waived.... ," Justice Manmohan said.

The Court said there are serious allegations in the case, as it warned that it will record a finding that tests for ordering disclosure are met in the case.

"The system (of Wikipedia) cannot be a cloak to defame someone," it remarked.

It further observed that Wikipedia defending the users shows that such edits have been made "at behest" of the platform.

"Your vehemence is showing ... you are something more than an intermediary," Justice Manmohan said.

The Court also took strong objection against Wikipedia allowing a page titled 'Asian News International vs. Wikimedia Foundation' to be published in relation to the present case.

It asked the platform to seek instructions in this regard and listed the matter for hearing on Wednesday.

"What we are finding is extremely disturbing that you think you are beyond the ambit of law. Look at the page. You are disclosing something about a sub-judice matter," the Court remarked.

The Court was hearing an appeal filed by Wikipedia against an order of single-judge directing an authorised representative of Wikipedia to be personally present in Court.

The issue arose after ANI sued Wikipedia for defamation alleging that the platform has allowed defamatory edits by referring to the news agency as a "propaganda tool" for the present Union government.

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

The ANI later filed a contempt of court application before the High Court before a single-judge alleging that the order has not been complied with.

Wikipedia's counsel told the Court that it has to make certain submissions regarding the order and it took them time to appear because Wikipedia is not based in India.

However, Justice Navin Chawla on September 5 took strong objection to Wikipedia's conduct, saying,

"I will impose contempt...It is not a question of Defendant No 1 [Wikipedia] not being an entity in India. We will close your business transactions here. We will ask the government to block Wikipedia...Earlier also you people have taken this argument. If you don’t like India, please don’t work in India."

Justice Chawla then ordered an authorised representative of Wikipedia to be personally present in Court on October 25.

It also observed that similar argument taken by Wikipedia in earlier matters had been rejected. The Court also warned of contempt of court action against the platform.

This led to the instant appeal before the Division Bench.

Senior Advocate Akhil Sibal, representing Wikipedia, submitted on Monday that the platform was only challenging the order directing disclosure of the identity of users who had made the edits.

"I have legitimate interest in protecting the anonymity and I want to be heard on this aspect," Sibal said, adding the Single Judge had not given reasoning for the order.

However, the Court said that if Wikipedia does not disclose the identity, how can someone who has made the slanderous statements be served in a suit.

It also observed that the alleged statements appear to be defamatory.

"You are accusing someone, a journalist, of being a State-sponsored agent," the Court said.

When Sibal said the questions involved are of privacy and freedom of speech, the Court said Wikipedia would be putting at risk its safe harbour protection by taking such stand.

"Filing of appeal itself means that [you are waiving legal protection]," Justice Manmohan said.

The Court also questioned how Wikipedia can defend such statements. Sibal said the platform functions on the principle of anonymity and it wants to be heard before such disclosure is ordered.

However, the Court said the private defendants would have to come forward and defend themselves.

Sibal in response said there is a jurisprudence on the subject and threshold has to be met before passing of such order.

"In these cases, there is reprisal ... all kinds of consequences," he submitted.

The Court again asked how Wikipedia can defend such edits, which it prima facia found to be defamatory.

"The defence can be truth, you are not author. You cannot defend. You are only an intermediary," Justice Gedela remarked.

Sibal explained the model of Wikipedia and said such edits are based on some source, which are news articles. He said that news organisation has not been made a party to the present case.

"When the suit is filed, that publisher is not party and no injunction is sought," he submitted.

However, the Court observed that readership of Wikipedia is in millions as against the platform that has originally published the statement.

Later during the hearing, Sibal suggested the private defendants can be served without disclosure of identity.

"We would want some scrutiny this. The argument is it should not be automatic (disclosure). In other cases, there may be reprisal," he added.

Sibal also questioned the urgency to order disclosure of information, pointing out that the edits on ANI's page date back to 2020 and 2021.

Advocate Sidhant Kumar, representing the ANI, defended the single judge's order and said that Wikipedia had not filed any pleading before that Court.

Kumar also submitted that Wikimedia was justifying the defamatory content by calling it fair comment.

"There is agenda appellant has against us. There is a dedicated page on this case," he told the Court.

At this stage, the Court slammed Wikipedia for the page and went on to question the advocate on record for "not being able to restrain the client".

"You have put learned single-judge in line of fire. This page will have to be taken down, otherwise you will not hear . You may be backed by world's most powerful power but I think we live in a country which is governed by the rule of law and we take pride in that," Justice Manmohan said.

Sibal said Wikipedia itself had not done it but he will seek instructions in this regard. He also agreed it should not be there.