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‘Can’t defame someone’: HC raps Wiki in defamation case

Oct 15, 2024 06:46 AM IST

The high court likely to further scrutinise Wikimedia Foundation’s compliance with judicial orders and India’s defamation laws.

New Delhi

The Delhi high court.
The Delhi high court.

The Delhi high court on Monday issued a stern warning to Wikipedia, expressing strong disapproval over a page dedicated to a pending 2 crore defamation suit filed by Asian News International (ANI) against the platform, and warned its parent firm Wikimedia Foundation that its “safe harbour” protections under Section 79 of the Information Technology Act would be at risk if it continued to interfere with judicial proceedings in India.

“This page will have to be taken down by your client in case he even wants to be heard,” a bench of chief justice Manmohan and justice Tushar Rao Gedela remarked, slamming the firm for assailing a previous order that directed Wikipedia to disclose information about subscribers who had edited the ANI page on the online crowd-sourced information platform.

The bench said that Wikipedia -- it calls itself a “free, online encyclopaedia” -- cannot not put the judge in fear or threaten him. “You may be a powerful entity, but we live in a country which is governed by law, and we take pride in that,” it said.

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The dispute arose after ANI had sued Wikipedia over an allegedly defamatory description of the news agency. On August 20, the high court had directed Wikipedia to disclose information about the subscribers who edited the page within two weeks. ANI later filed a contempt plea alleging that Wikipedia failed to abide by the August 20 order.

On September 5, a bench of justice Navin Chawla threatened to pass an order directing the government to close Wikipedia’s business transactions in India. Pursuant to the hearing, another page appeared titled “Asian News International vs. Wikimedia Foundation”. This page claimed that the presiding judge -- Navin Chawla -- threatened to shut down Wikipedia in India if necessary. Later, Wikipedia moved the division bench of Delhi high court against an order passed on August 20.

On Monday, senior advocate Akhil Sibal, representing Wikipedia, argued that the platform operates on anonymity, which is central to its functioning. However, the court dismissed this stance.

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“The system cannot be a cloak to defame someone... You are calling someone an Indian agent...If these are incorrect allegations, they are scandalous to the core,” the bench said. Asserting that Wikipedia’s structure could not shield editors from accountability in cases of defamation, it warned that if it protected defamatory content, it risked losing legal immunity.

Though Sibal argued that the individuals who edited the ANI page are not employees or agents of Wikimedia but independent administrators, the court countered that the platform’s anonymity could not serve as a shield in the face of defamation claims, emphasising that Wikipedia’s operational model should not “get away” with allegedly defamatory statements under a “cloak of privacy.” The court also criticised Wikipedia’s approach to the disclosure order.

“Your Section 79 protection cannot remain...we are telling you. We will record that your protection under Section 79 is now blown up. You have created an infrastructure whereby anonymity is going to be protected, where people can rely on some material which they will not have to defend,” it stated.

Section 79 of the Information Technology Act which contains a safe harbour clause provides legal immunity to platforms against content shared by their users. It states that an intermediary shall not be liable for any third party information, data or communication link made available or hosted by him.

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The matter is now scheduled to be heard on Wednesday, with the high court likely to further scrutinise Wikimedia Foundation’s compliance with judicial orders and India’s defamation laws.

Rohini Lakshane, a volunteer who contributes to Wikipedia and its sister projects by editing articles, uploading photos, etc, said that Wikimedia Foudnation was caught in a difficult position as on the one hand, it stands to lose its safe harbour as an intermediary, and on the other hand, since it has “a responsibility towards the community”, turning over information about the editor, even in a sealed cover, without the content first being established as defamatory will have a deleterious impact on the community worldwide.

“Wikipedia is an encyclopaedia that anybody can edit and it relies on anonymous and pseudonymous edits as much as those that can be attributed to real identities. This is how Wikipedia democratises knowledge production and lowers the barrier to entry unlike other sources, such as journals.” Lakshane explained that “on Wikipedia, the editors merely cite somebody else. In the ANI case, the underlying information has not yet been deemed defamatory”.

Lakshane is neither an employee of nor a consultant with the Wikimedia Foundation.

With inputs from Aditi Agrawal.

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