The recent High Court ruling on the Online Safety Act (OSA) 2023 established a crucial precedent regarding the lawful limits of the new regulatory regime, particularly concerning how the statutory duties must be applied with proportionality and respect for human rights.
Facts:
The dispute concerns a judicial review claim brought by Wikimedia, as well as a user and editor of Wikimedia, against the Secretary of State (SoS) regarding Regulation 3 of the OSA 2023, which sets the Category 1 threshold conditions for user-to-user services. Services categorised pursuant to the Category Threshold Regulations are subject to additional duties under OSA 2023, with Category 1 services being subject to the most rigorous responsibilities and oversight.
The crux of Wikimedia’s complaint was that the categorisation criteria in the Category Threshold Regulations are logically flawed in that the criteria were intended to hold large, profitable social media companies to account, platforms on which viral dissemination is common. However, they were drafted too broadly and thereby likely ensnare Wikimedia. The claimants brought the judicial review on the grounds of breach of statutory duty, irrationality, incompatibility with the European Convention on Human Rights (ECHR), and discrimination.
Decision:
The High Court ruled in favour of the SoS, thereby upholding the legality of Regulation 3 of the OSA 2023, dismissed grounds 1 and 2, and refused permission to advance grounds 3 and 4. The Court's reasoning for dismissing the judicial review, while simultaneously issuing a warning to the government, centred on the high threshold for legal intervention in complex technical and policy decisions as well as the timing of the claimants' challenge under human rights law.
The claim that the SoS had failed to adequately consider the impact of functionalities on viral dissemination was dismissed because the Court found the SoS did comply with the statutory duty. The claim that Regulation 3 was irrational due to its overreach and failure to account for user engagement time was dismissed because the decision was considered to have a logical underpinning.
Despite dismissing the claim, the Judge issued a strong warning to both the government and its regulator, Ofcom, as the ruling "does not give Ofcom and the SoS a green light to implement a regime that would significantly impede Wikipedia's operations". The Court stressed that, if Ofcom eventually designates Wikipedia as a Category 1 service and the resulting duties (such as user verification) prove disproportionate, they would have to be justified as compatible with human rights, particularly the right to freedom of expression (Article 10). This leaves the door open for Wikimedia to bring a successful judicial review challenge in the future if Ofcom's ultimate decision is adverse.
Implications:
This case highlights the importance of the timing of legal challenges, waiting for the regulator’s classification decision and associated duties if they are disproportionate. The High Court's dismissal of Wikimedia's challenge against the OSA's Category 1 thresholds suggests that a pre-emptive challenge to the broad drafting of the regulations before they are practically applied may be premature and unsuccessful.
While the claim was dismissed, the judgement therefore leaves open the possibility of future legal challenges, for instance under Article 10 of the ECHR, particularly if Ofcom determines that Wikipedia is within its scope and the resulting obligations prove disproportionate.
One key takeaway is the High Court's stern warning that the regulator, Ofcom, does not have a "green light" to implement the OSA in such a way as to "significantly impede" an online service's operations without strong justification.
