Law and Lawyers: Wikimedia Foundation v Secretary of State for Science, Innovation and Technology

13 August 2025

Wikimedia Foundation v Secretary of State for Science, Innovation and Technology

As noted in the earlier post 28 July 2025, the Online Safety Act 2023 received Royal Assent on 26 October 2023. The Act extends to 241 Sections (divided into 12 parts) and 17 Schedules. Then there is secondary legislation and "guidance". The result is a complex legal framework for UK regulation of the internet - UK Government Online Safety Act and Online Safety Act: Explainer.

The Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025 - (the categorisation regulations) - were 'made' by the Secretary of State on 26 February 2025.

Judicial review

The Wikimedia Foundation and a second claimant (BLN) brought judicial review

proceedings against Regulation 3 of the categorisation regulations - Wikimedia Foundation and BLN v Secretary of State for Science, Innovation and Technology [2025] EWHC 2086 (Admin).

The Wikimedia Foundation was concerned that the online encyclopedia Wikipedia might be placed into Category 1 and therefore subjected to additional legal duties such as the duty to offer adult users tools to help them reduce the likelihood that they will encounter certain types of legal content. If Category 1 were to apply to Wikipedia, they would have to comply with duties that are not reasonably manageable and which are incompatible with the way in which Wikipedia operates. (The judgment paras 6 to 18 explain how the platform operates).

Four grounds for judicial review were put to the court.

(1) the Secretary of State failed to comply with a duty imposed by paragraph 1(5) of schedule 11 to the Online Safety Act 2023 to take into account the likely impact of the number of users of the user-to-user part of a service, and its functionalities, on the ease, speed and breadth of the dissemination of user-generated content.
(2) the decision was irrational because it was based on flawed reasoning.
(3) the decision is incompatible with articles 8, 10 and 11 of the European Convention on Human Rights.
(4) the decision is incompatible with article 14 of the Convention (or is otherwise irrational) because it fails to distinguish between different types of online provider

Permission for judicial review was refused on Grounds 3 and 4 because the claimants did not have standing to bring a claim under the Human Rights Act 1998 and because those grounds of claim do not (as matters stand) have arguable merit.

Permission was granted on Grounds 1 and 2 but the claims were dismissed.

The judge (Johnson J) ended by stressing that the outcome did NOT give OFCOM and the Secretary of State a green light to implement a regime that would significantly impede Wikipedia’s operations. If they
were to do so, that would have to be justified as proportionate if it were not to amount to a breach of the right to freedom of expression under article 10 of the Convention (and, potentially, a breach also of articles 8 and 11).

The parties did not seek a ruling that Wikipedia actually is a Category 1 service. For now, that is a matter for OFCOM. If the decision is that Wikipedia is not a Category 1 service, then no further issue will arise. In the event that Ofcom decides it is a Category 1 service, that decision would be amenable to judicial review.

Finally, if Ofcom permissibly determines that Wikipedia is a Category 1 service, and if the practical effect of that is that Wikipedia cannot continue to operate, the Secretary of State may be obliged to consider whether to amend the regulations or to exempt categories of service from the Act. In doing so, he would have to act compatibly with the Convention. Any failure to do so could also be subject to further challenge. Such a challenge would not be prevented by the outcome of this claim.

Links

UK Government - The Online Safety Act: Explainer.