Why Delhi HC is angry with Wikipedia for calling ANI a ‘government propaganda tool’

It started off as a defamation suit against Wikipedia for a description of the Asian News International wire service as “a propaganda tool for the incumbent central government” involved in “distributing materials from a vast network of fake news websites, misreporting events on multiple occasions, and quoting sources that do not exist”. Since then, the Delhi High Court has insisted that Wikipedia disclose the identities of the users who made the edits and, on Wednesday, even ordered the online encyclopedia to take down a page on the defamation suit.

This unusual gag order against an encyclopedia demonstrates the limits of applying conventional legal principles to global online platforms like Wikipedia and the inability of the High Court to meaningfully engage with how Wikipedia functions and raises concerns about online free speech in India.

Wikipedia is a free online encyclopedia edited by volunteers. It is owned by the United States-based non-profit Wikimedia Foundation.

Scroll explains why Wikipedia is under the court scanner and the public interest stakes in this case.

Defamation suit

In July, ANI sued Wikipedia in the Delhi High Court, alleging that the Wikipedia page about it contained a defamatory description of the newswire. ANI not only claimed that the description is defamatory but that Wikipedia was not allowing the page to be edited – presumably by ANI to remove the allegedly defamatory content. It sought to have this alleged defamatory text removed, in addition to Rs 2 crore in damages from Wikipedia.

While hearing the case, Justice Navin Chawla of the court issued a summons to Wikipedia and ordered it to disclose information about the users who made the edits on ANI’s Wikipedia page. However, Wikipedia delayed appearing before the court, responding to the summons only on August 20. Though it argued that this was a result of it not being based in India, this was not accepted by the court. Chawla warned on September 5 that the court will ask the government to block the platform in India

Soon after, Wikipedia appealed against Chawla’s order about user disclosure before a two-judge bench comprising Chief Justice Manmohan and Justice Tushar Rao Gedela, arguing that the court must first arrive at a prima facie conclusion regarding defamation having occurred before asking for user data from Wikipedia.

However, in a hearing on Monday, Manmohan and Gedela did not accept this and described Wikipedia’s refusal to share the information as “extremely disturbing”. The bench cautioned Wikipedia that it was putting its safe harbour protection at risk.

Safe harbour provisions within the Information Technology Act protect social media intermediaries from legal action for content posted by users.

The bench also took umbrage at the creation of a page about the suit on Wikipedia. The page says, with citations, that “[c]ritics have characterised [Chawla’s] order that the [Wikimedia Foundation] release the identities of the editors who made the edits as censorship and a threat to the flow of information”.

The bench took the prima facie view that this comment amounted to interference in court proceedings. It noted that since Wikipedia is a defendant in the suit, such comments on a webpage managed by it was a violation of the sub judice principle and bordered on contempt of court.

The sub judice principle in law refers to the convention that prohibits public discussion, comments or publications about ongoing legal proceedings that could potentially prejudice or influence the outcome of the case.

Consequently, on Wednesday, the bench ordered Wikipedia to take down the page within 36 hours. However, the page was still up as of Saturday morning.

How Wikipedia works

Wikipedia is a free online encyclopaedia that uses collaborative software known as a wiki to facilitate the creation and development of content.

In response to a defamation case, the Wikimedia Foundation stated that Wikipedia’s content is curated by its global community of volunteer editors, not by the foundation itself. It clarified that Wikipedia articles are collaboratively edited based on community guidelines.

Regarding Asian News International’s claim that its page was not editable, Wikimedia explained that the article was under “extended confirmed protection”, allowing edits only from users with accounts at least 30 days old and 500 edits. Experienced editors can still improve the article following Wikipedia’s policies on neutrality, verifiability, and reliability.

Wikipedia has faced legal and censorship challenges in various authoritarian countries due to the content on its open-source platform. Governments in some regions have restricted access or blocked the site to control information. For instance, in China, Wikipedia is censored and Turkey banned the platform from 2017 to 2020 over certain articles linking the government to terrorist groups. In Russia, authorities have imposed fines and legal actions against Wikipedia for not removing content labeled as “illegal” such as information about the Russia-Ukraine conflict.

Wikipedia has been subjected to defamation lawsuits due to disputes over the accuracy of articles and claimants challenging the accuracy of articles that may portray individuals or organisations in a negative light. Wikipedia’s unique structure, relying on volunteer editors for content creation, complicates legal liability, depending on whether courts consider it a publisher or simply a host for user-generated content.

Legal position

Under the Information Technology Act in India, Wikipedia qualifies as an intermediary.

According to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, intermediaries must exercise due diligence and reasonable care to ensure that their users do not post any illegal content.

The same rules provide wide powers to authorised government agencies to seek from an intermediary any information under its control or possession for “the purposes of verification of identity, or for the prevention, detection, investigation, or prosecution, of offences under any law for the time being in force, or for cyber security incidents”.

Technology lawyer and online civil liberties activist Mishi Choudhary told Scroll that the legal position traditionally taken by Indian courts is that disclosure of intermediaries’ user identities must be based on a valid legal claim and careful consideration of fundamental rights.

“Generally, such cases involve critical rights of the users, such as the freedom of speech and expression and the right to privacy,” Choudhary said. “Therefore, courts must ensure there is sufficient legal ground or prima facie merit to justify such disclosures.”

However, Delhi High Court ordered the disclosure of Wikipedia users’ identity without even determining whether there was any prima facie defamation. “This appears to deviate from the usual judicial approach of ensuring a proper legal basis before ordering the disclosure of user identities, potentially raising concerns over privacy and freedom of expression,” Choudhary said.

Courts are also sufficiently empowered under the Information Technology Act to order the removal of the Wikipedia page on the defamation suit – as the court did on Wednesday – or block Wikipedia’s operations in India altogether, as Chawla threatened. But Pallavi Sondhi, senior associate at technology and innovation law firm Ikigai Law, raised concerns about this. “What needs to be assessed is if there are sufficient grounds for the court to issue a blocking order in this case,” she pointed out.

Chaudhary also agreed. “It is unclear how the court reached the conclusion that the Wikipedia page on the defamation suit was created with the intention to interfere in the matter,” she said. “Wikimedia clarified that it does not control or edit the content on Wikipedia. All contributions to the article in question were made by third-party users with no affiliation to Wikimedia, based on secondary sources such as established news outlets.”

Wider effect

Several experts flagged the undesirable ramifications the fate of this case may have on online free speech in India.

“The taking down of the page [on the suit] by the Court is surprising and it’s an unfortunate development for those who wish to remain informed,” said Nikhil Pahwa, founder of the MediaNama portal that tracks technology news. “If newspapers and websites can report on court proceedings and developments related to the case, I fail to see what harm is done by a Wikipedia page that cites public information.”

Chaudhary agreed. “Platforms like LiveLaw, BarandBench and mainstream newspapers regularly report on judicial proceedings,” she said. “This order suggests that the court may wish to control how such platforms report even basic facts, which could severely undermine press freedom and the public’s right to be informed.”

Tanveer Hasan, Executive Director at the Centre for Internet and Society, a non-profit multidisciplinary research organisation, was even more vehement. “Restricting platforms like Wikipedia is an indirect assault on the freedom of speech under the guise of technological regulation,” he said. According to Hasan, “it may stifle open discussion and limit access to information”.