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

A statutory threshold-setting power may lawfully produce criteria that are both over-inclusive and under-inclusive, particularly in a complex and rapidly changing technical field. The decision-maker must take account of the likely impact of user numbers and functionalities on the dissemination of user-generated content, but need not analyse every possible service, functionality or mode of operation at a granular level. Reliance on expert regulatory research is permissible where its limitations are understood. A human-rights challenge based on a possible future classification will generally fail for want of victim status where the claimant has not established that the classification applies or asked the court to determine the issue. Any later implementation that significantly impedes freedom of expression must remain Convention-compliant and proportionate.

The claimants challenged regulation 3 of the Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025. Regulation 3 specifies the user-number and functionality conditions for Category 1 online services under the Online Safety Act 2023. The first claimant hosts Wikipedia; the second claimant is a user, editor and administrator. They contended that the Secretary of State had failed to consider the statutory impact of functionalities on viral dissemination, had acted irrationally, and had infringed Convention rights by potentially treating Wikipedia like major social-media providers.

The court considered whether permission should be granted and, if so, whether the making of regulation 3 was unlawful. The claimants did not ask the court to determine whether Wikipedia actually satisfied the regulation’s conditions, leaving that issue initially to Ofcom.

1. Grounds (1) and (2). Permission was granted, but the claim was dismissed. Paragraph 1(5) of schedule 11 to the Online Safety Act 2023 required the Secretary of State to take account of the likely impact of user numbers and functionalities on the ease, speed and breadth of dissemination of regulated user-generated content. He did so by considering and accepting Ofcom’s research and advice, while understanding that the advice operated at a high level of generality and might produce outliers, including Wikipedia.
2. The statutory duty did not require the Secretary of State to examine every possible functionality, service, sector or mode of operation, or to distinguish between integral and ancillary functionalities. The statutory language required a general assessment across the universe of regulated user-to-user services. The Secretary of State was not required to devise an additional test for non-integral systems.
3. The irrationality challenge failed. The relevant decision was to prescribe objective threshold conditions by reference to user numbers, functionalities and relevant characteristics, not to decide whether Wikipedia itself caused viral dissemination. In a complex technical policy field, criteria may reasonably be broad, over-inclusive and under-inclusive. No worked-through alternative was shown to provide better alignment with the policy objective. The statutory scheme also allowed later amendment or exemption.
4. Grounds (3) and (4). Permission was refused. The claimants had not established victim status under section 7 of the Human Rights Act 1998. Whether Wikipedia fell within regulation 3 depended on its proper interpretation and had not been determined. That contingency was a present question of legal construction, rather than the exceptional risk of a future violation capable of establishing victim status. Nor had the claimants shown that a future breach was likely.
5. The court nevertheless accepted that imposing Category 1 duties in a manner that significantly impeded Wikipedia could engage articles 8, 10 and 11 of the Convention and would require justification and proportionality. Ofcom must interpret and apply regulation 3 compatibly with Convention rights so far as possible. A later Ofcom decision, or a failure by the Secretary of State to amend or exempt services where necessary, would remain amenable to judicial review.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.