In the notice to Wikimedia Foundation, the non-profit that hosts Wikipedia as one of its products, the government reportedly said there is view that a small group exercises editorial control over its pages.

The Wikimedia Foundation did not confirm whether it had received the notice from the I&B ministry. HT has not seen a copy of the notice. At least once in the past, a government communication to Wikimedia Foundation (WF) was reported by the media before it was sent to the Foundation itself.

The development comes amid ongoing legal proceedings against WF in the defamation suit filed by ANI over its Wikipedia page describing the news agency as a “propaganda tool for the incumbent government”. In its suit, ANI has sought details of three anonymous editors who had edited the page. When WF did not give the details, ANI filed a contempt petition. Currently, both the defamation suit and Wikimedia’s challenge to the contempt petition are being heard in the Delhi high court.

To be sure, under the Information Technology Act, an intermediary’s designation as an “intermediary” is dependent on the function it performs — that is, whether or not it is receiving, storing or transmitting electronic record on behalf of another person — and not on whether or not a ministry has “decreed” it to be an intermediary.

Such an entity is granted exemption from liability for third party content, commonly called “safe harbour”, if the intermediary does not initiate the transmission, does not select the recipient of the transmission, and does not select/modify the information within the transmission. To preserve safe harbour, the intermediary must adhere to guidelines given in the law via the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Under the law, only courts can determine if an intermediary can lose safe harbour protection. An intermediary does not lose safe harbour for all its content, but only for the content against which an FIR or a petition has been filed. Even if a court holds that an intermediary does not have safe harbour for a piece of content, it will not cease to be an intermediary as long as it continues to provide the same services and perform the same functions; it will not become a publisher.

In the past, the Union government has always considered Wikipedia to be an intermediary. In September 2022, the ministry of electronics and information technology (MeitY) — the nodal ministry for regulating intermediaries — had written to WF to provide information on action taken on vandalised Wikipedia pages of Indian cricketer Arshdeep Singh and an Indian footballer with the same name. In its email, the ministry had cited rule 3(1)(b) and 3(1)(d) of the IT Rules which apply to intermediaries, and not publishers or social media intermediaries.

During the hearings in the ANI case before two different benches — the defamation suit before Justice Subramonium Prasad (and earlier before Justice Navin Chawla) and the challenge to the contempt petition before the bench of Chief Justice Manmohan and Justice Tushar Rao Gadela — over the last fortnight, at no point have any of the judges considered treating Wikipedia as a publisher despite multiple insistence from ANI’s lawyer Sidhant Kumar for the same.

The judges, in different hearings, have asked the Foundation why it was trying to argue on behalf of the anonymous users. Justice Manmohan, in one of the hearings, told senior advocate Akhil Sibal, appearing for Wikimedia Foundation, that if WF continued to argue on behalf of anonymous editors, it stood to lose its safe harbour and would be held liable for the content that ANI has claimed to be defamatory.

The WF has repeatedly argued that as an intermediary, it has no editorial control over the content on Wikipedia. The division bench had taken umbrage with a separate Wikipedia page about the defamation suit that was created by Wikipedia volunteers. Sibal argued that WF only provided the technical architecture and that it had no control over the page. To remove the page, Sibal argued that under Section 79 of the IT Act, read with the 2015 Shreya Singhal judgment, either court order or a notice from an appropriate government agency was required; as an intermediary, WF could not act of its own volition. The division bench had eventually passed an order directing the takedown of the Wikipedia page which the Foundation eventually complied with.