Supreme Court sets aside Wikipedia order, says cannot tell media what to publish

The Supreme Court on Friday set aside the Delhi high court’s order for the removal of a Wikipedia page on Asian News International (ANI)’s defamation proceedings against the Wikimedia Foundation, which hosts the online encyclopedia, saying it was not the court’s job to tell the media what to publish and what to take down.

A bench of justices Abhay S Oka and Ujjal Bhuyan reaffirmed media freedom and the principle of open justice. It said the judiciary and the press must supplement each other for a democracy to flourish. The bench added courts, as public institutions, must remain open to public scrutiny, observation, and debate.

The bench said judicial proceedings, even if sub judice, can be discussed in the public domain and reported on. It reiterated that restrictions on such discussions must be narrowly tailored and based on necessity and proportionality alone.

“...courts should welcome debates and constructive criticism. Every important issue needs to be debated by the people and the press, even if the issue of debate is the subject of proceedings before a court. However, those offering criticism should remember that judges cannot respond to such criticism. If a publication scandalises the court or judges and if a case of contempt is made out, certainly the court should take action,” the Supreme Court said. “But it is not the duty of the court to tell the media to delete this, take that down. For the improvement of any system, and that includes the judiciary, introspection is key. That can only happen if there is a robust debate even on issues which are before the court.”

The court said scandalous content can invite contempt, but mere criticism or public discussion of judicial proceedings does not amount to contempt unless there is a clear and present “danger to the administration of justice.”

In the present case, the Supreme Court said it found no such prima facie instance of contempt.

The case stems from ANI’s defamation suit against Wikipedia over allegedly damaging content on its page titled “Asian News International”. The ANI filed a subsequent contempt petition challenging the content of a separate Wikipedia page chronicling the Delhi high court proceedings on the suit.

On April 2 this year, a single bench of the Delhi high court directed Wikimedia Foundation to remove allegedly defamatory statements published against ANI. A division bench of the high court upheld the ruling on April 8, saying Wikipedia cannot use its intermediary status and claim immunity because it was not responsible for the statements published on the platform. Wikipedia complied with the high court’s order but challenged it in the Supreme Court.

The Supreme Court questioned the legal foundation of the high court’s order and said that it was overly broad and lacked specificity. On April 17, the bench of Justices Oka and Bhuyyan set aside the high court’s order directing Wikipedia to take down the alleged defamatory edits on the ANI page. The direction to remove all false, misleading, and defamatory content was very “broadly worded and incapable of implementation,” the Supreme Court said at that time. It also granted ANI the liberty to approach the high court afresh for interim relief on its defamation suit, pointing to specific portions it finds objectionable.

On Friday, the Supreme Court relied on key precedents, including the Sahara vs SEBI case, where it was held that postponement of media reporting on judicial proceedings can only be ordered when necessary to prevent a real and substantial risk to the fairness of the trial, subject to the tests of necessity and proportionality. It cited the nine-judge bench decision in the 1966 Supreme Court judgement in the case of Naresh Shridhar Mirajkar vs the State of Maharashtra, where the court affirmed the importance of open court proceedings in upholding public confidence in the judiciary.

Wikimedia, through senior counsels Kapil Sibal and Akhil Sibal, argued its content was user-generated and not created by the Foundation. It pointed out that the statement the high court flagged that a judge allegedly threatened to shut down Wikipedia in India was a quote from a published news article and not an unverified user comment.

The Supreme Court rejected the high court’s reasoning that Wikipedia bore a “higher responsibility” as an encyclopedia and that it had fiduciary duties to prevent defamation. It held that such characterisation failed to acknowledge Wikipedia’s functioning as a user-moderated platform protected by intermediary safe harbour provisions under the Information Technology Act.