HC upholds order for Wikipedia to remove ‘defamatory’ article

The Delhi high court’s division bench on Tuesday upheld a single judge’s order directing Wikipedia to take down allegedly defamatory statements about news agency ANI from its page. The bench held that the platform was obligated under the Information Technology Rules, 2021, to remove “false”, “untrue” and “misleading” content within 36 hours of a court order, and could not contest the same on merits.

Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, outlines the due diligence to be observed by intermediaries, mandating them to remove false, untrue, misleading, harmful to child, or obscene information within 36 hours of receiving a court order or being notified by the appropriate government.

On April 2, Justice Subramonium Prasad had directed Wikipedia to take down the content, holding that an intermediary such as Wikipedia has fiduciary responsibilities and obligations to prevent defamation, and cannot evade accountability by merely claiming it hosts third-party content. The order was passed in a defamation suit filed by ANI, asserting that the Wikipedia page falsely described it as a “propaganda tool” for the government.

“You’ve already pleaded that you’re an intermediary and the job of the intermediary is only to what the court of law directs. It cannot defend. If you’re an intermediary, the court directs you to take it down and you cannot argue on merits. The minute the court orders, you have to take it down,” Justices Prathiba M Singh and Rajneesh Kumar Gupta said to senior advocate Akhil Sibal, representing Wikipedia.

The court added, “When this is the position, since Wikipedia itself claims to be intermediary, in terms of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, the intermediary has an obligation to make reasonable efforts not to publish any objectionable content. Perusal Rule 3 of the 2021 Rules, shows that if there is any content on Wikipedia website which a person whose information it professes to publish is false, untrue or misleading in nature, upon receipt of court order, in terms of Rule 3, within 36 hours, the intermediary is obliged to take down content.”

The court also criticised the platform for presenting itself as an “online encyclopaedia” but hosting a “strongly opinionated” and “non-neutral page” on the news agency. It said a “substantial portion” of the content contained allegations and accusations that could impact readers, and Wikipedia could not take sides.

“Wikipedia has to have that standard of encyclopaedia. It can’t take sides. Wikipedia has to have that standard of an encyclopaedia. If you (Wikipedia) start taking sides, then it becomes some blog,” the bench remarked.

The court, while issuing notice in Wikipedia’s appeal against the April 2 order, stayed Justice Prasad’s direction for removal of protection status on ANI’s Wikipedia page, allowing for necessary edits and restraining users from posting further defamatory content regarding ANI.

The judges also granted ANI the liberty to write an email to Wikipedia for removal of allegedly defamatory content in future and directed the platform to take it down, as per law, within 36 hours.

The next hearing is scheduled for July 16.

During the hearing, Sibal submitted that Wikipedia was an intermediary, merely providing an open-source, user-generated platform and could not be held responsible for content uploaded by independent third parties. He argued that the platform neither had editorial control over its pages nor connection with the parties. Justice Prasad, Sibal submitted, grossly erred in granting reliefs that were not prayed for and there was substantial delay in filing the suit, as the content existed since 2019.

ANI, represented by advocate Siddhant Kumar, submitted that Wikipedia, despite claiming to be an intermediary, had failed to comply with the timeline laid down under the IT Rules, 2021 and did not have the right to contest the matter on merits.

On Monday, Justice Navin Chawla had recused from hearing the platform’s appeal. Justice Chawla in July last year had issued summons to Wikipedia in ANI’s defamation suit. In September, he had also slammed the platform for its failure to comply with its order directing the platform to disclose information about the subscribers who edited news agency’s Wikipedia page and threatened to pass an order asking the government to close its business transactions in India.

This defamation fight has snowballed into a larger judicial tussle over the liability and duties of intermediaries when content posted by their users is caught in a legal tangle. In earlier hearings, the court had pulled Wikipedia for its apparent reluctance to share user details and observed that its disclaimer about content being based on secondary sources could not absolve it from responsibility. Justice Prasad had said the disclaimer could not act as a “mythical shield”.