The Administrative Court has ruled in Wikimedia Foundation & BLN v Secretary of State for Science, Innovation and Technology [2025] EWHC 2086 (Admin). The claim was brought by Wikimedia and one of its users relating to categorisation of services under the Online Safety Act 2023.
The Online Safety Act 2023 creates a layered system of duties for regulated “user-to-user” services. The most onerous obligations, ranging from user-verification tools to annual transparency reports, only apply to services designated “Category 1”. Under Schedule 11 the Secretary of State must make regulations prescribing threshold conditions based on three criteria: the number of UK users, identified functionalities, and any other relevant characteristics.
Relying on Ofcom’s statutory research and advice, the Secretary of State made the Category 1, 2A and 2B Threshold Conditions Regulations 2025. Regulation 3 provides that a service will fall within Category 1 if it:
- averages over 34 million UK users per month and uses a content recommender system; or
- averages over 7 million UK users, uses a content recommender system, and provides a functionality enabling users to forward or share user-generated content.
The Wikimedia Foundation, a US non-profit that hosts Wikipedia, and BLN, a long-standing UK editor and administrator, sought to quash regulation 3. They argued that, even though Wikipedia poses no meaningful viral-dissemination risk, the new thresholds are formulated so broadly that the online encyclopaedia is likely to qualify as Category 1, exposing it to duties it cannot meet without fundamentally altering its open-editing model.
The grounds of challenge
- Statutory duty ground – Paragraph 1(5) of Schedule 11 obliges the Secretary of State to “take into account the likely impact” of user numbers and functionalities on how easily, quickly and widely user-generated content is disseminated. The claimants said he had failed to grapple with evidence showing that Wikipedia’s recommender tools are moderation-focussed, ancillary and incapable of driving viral dissemination.
- Irrationality ground – They contended that Regulation 3 is both over- and under-inclusive, the definition of a “content recommender system” is hopelessly broad, and the policy team wrongly ignored the time users spend on a service.
- Convention rights ground – They argued that imposing Category 1 duties on Wikipedia would breach Articles 8, 10 and 11 ECHR, particularly because the user-verification duty is incompatible with anonymous collaborative editing.
- Article 14 / discrimination ground – Treating a charitable encyclopaedia identically to profit-driven social-media giants was said to be unjustifiably discriminatory.
The Court’s analysis
Statutory duty. The judge accepted that paragraph 1(5) requires a real engagement with how functionalities drive viral dissemination, but he held that the Secretary of State had met that obligation. Ofcom’s research deliberately took a high-level, service-agnostic approach: content-recommender systems and sharing tools were identified as the functionalities “most relevant” to viral dissemination across the sector. Faced with limited data and the inherent opacity of algorithms, the Secretary of State was entitled to rely on this expert advice without undertaking a more granular, service-by-service investigation.
Irrationality. The Court emphasised the “very broad margin” afforded to ministers setting bright-line rules in novel, technically complex regimes. Regulation 3 was not flawless, and officials candidly acknowledged that certain “outlier” services might be captured unintentionally, but perfection is not the test. No superior, evidence-based formulation had been identified, and the Secretary of State retained powers to amend the thresholds once their real-world impact becomes clear.
Convention rights. The claim failed at the preliminary hurdle of victim status. Wikipedia has not yet been placed on Ofcom’s Category 1 register, and the central question—whether the encyclopaedia’s moderation tools amount to a “content recommender system” within the meaning of regulation 3—has not been determined. In those circumstances neither claimant could show that they are “presently and directly affected” for the purposes of section 7 of the Human Rights Act 1998 (HRA) and Article 34 ECHR. The Court stressed that the interpretative obligation in section 3 HRA still applies when Ofcom applies the regulation; if the watchdog nevertheless designates Wikipedia as Category 1, a fresh, fact-sensitive challenge would remain open.
Article 14 and discrimination. This ground was also refused permission. The statutory scheme targets risks to public discourse, not corporate profit. On the evidence, non-profit status is not a material distinction in that risk assessment, and in any event the claimants’ lack of victim status foreclosed an Article 14 claim
Although the Court decided in the government’s and Ofcom’s favour, it stressed that “this does 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).”
However, the court took the view that it was premature to rule on that now. Neither party had sought a ruling as to whether Wikipedia is a Category 1 service and said that decision must be left to Ofcom. If Ofcom decides that Wikipedia is not a Category 1 service, then no further issue will arise. If it rules that it is, Wikipedia could bring another claim for judicial review.
