AC-2025-LON-001365 - [2025] EWHC 2086 (Admin)

Fecha: 11-Ago-2025

Application of the Category 1 threshold conditions to Wikipedia

Application of the Category 1 threshold conditions to Wikipedia

69.

Viral dissemination is not a concept that obviously applies to Wikipedia. The typical Wikipedia user only encounters content that they seek out. Nevertheless, depending on the correct interpretation of regulation 3, some features of Wikipedia might be considered to amount to a content recommender system or a forward/share functionality. That may mean that Wikipedia amounts to a Category 1 service within the meaning of the regulation. That is so even though these features are, for the most part, not available to general users and are only available to a tiny subset (such as moderators), and even though it might be thought that none of them have the effect of causing viral dissemination in the way that can be a feature of some social media sites.

70.

It is sufficient to mention just one such feature: the New Pages Feed. The overwhelming majority of Wikipedia users will never encounter the New Pages Feed. It is a moderation tool. It helps moderators identify new pages so that they can be reviewed for accuracy and clarity to limit the spread of poor-quality content. The New Pages Feed involves the operation of algorithms, including code to identify and present a list of newly created pages, code to filter or sort the list, code that predicts the quality of the page, and code that applies a “tag” to different types of page (eg pages that are just a few words long (“stubs”), or which are not linked to any other articles (“orphans”) or which have no sources (“no citations”)).

71.

A question that then arises is whether the New Pages Feed is a “content recommender system” within the meaning of regulation 3(2). That may raise the following further questions:

(1)

Is it “used by the [first claimant]”? Or is it only used by moderators who work entirely independently of the first claimant?

(2)

Is it used in respect of the user-to-user part of Wikipedia? Or is it only used in respect of another part of Wikipedia which does not form a component of the user-to-user part?

(3)

Does it use “algorithms” within the meaning of regulation 3(2)? Or is regulation 3(2) only intended to cover algorithms that affect how content may be encountered by users generally, as opposed to volunteers who take on a moderation role?

(4)

Does the New Pages Feed affect “the way in which user-generated content of a user… may be encountered by other users”? Or does it merely provide a mechanism for such content to be moderated?

72.

Neither party seeks a finding on these questions, nor on the ultimate question of whether Wikipedia meets the Category 1 conditions. It is common ground that Wikipedia might do so, and that it will be for Ofcom to determine whether it does do so, giving a Convention compliant reading and effect to the regulation, so far as that is possible.

73.

For its part, the first claimant’s litigation position in these proceedings (notwithstanding its response to Ofcom on 16 May 2025) is that it is “likely” that it meets the Category 1 conditions (and, on that basis, it contends that it is a “victim” for the purposes of the Convention). Conversely, Ms Rowland acknowledges that the Secretary of State was advised that it was “possible” that Wikipedia would qualify as a Category 1 service, but says that “because there are a number of technical issues which will need to be addressed by Ofcom when applying the Regulations concerning functionalities, systems and user numbers” the issue is necessarily uncertain.

74.

More broadly, the issues that Ofcom will need to address before determining whether Wikipedia is a Category 1 service include:

(1)

Identifying the number of people in the United Kingdom who access Wikipedia. That is not straightforward, because it is difficult to distinguish between people and bots, and because one person may use more than one device (and different people may use the same device), and because it is not necessary to log in to Wikipedia to be able to access it, and because the use of virtual private networks makes it difficult to identify whether a person who accesses Wikipedia is in the United Kingdom. However, Wikipedia’s estimate (based on a methodology that appears reasonable, and which has not been challenged) is that approximately 26 million individuals in the United Kingdom access Wikipedia each month. If they are all users within the meaning of section 227 of the Act, then that comfortably meets the 7 million figure in regulation 3(1)(b)(i).

(2)

Determining whether each person who accesses Wikipedia is a “user” within the meaning of the legislation. That assessment will involve a question as to whether administrators such as BLN are users. That issue arises because persons who work for the first claimant, including as volunteers, are not (when acting in the course of the first claimant’s business) users for the purposes of the Act: section 227(3)(c). Nor is any other person who provides a business service to the first claimant (when that person is acting in the course of the first claimant’s business): section 227(3)(d). The claimants are keen to stress that Wikipedia is regulated by its user base, that its editors and administrators are entirely independent of the first claimant and that this is of fundamental importance to its operating model. On the other hand, the first claimant has urged Ofcom carefully to assess this issue, and it has advanced a cogent basis on which Ofcom might conclude that moderators are not (when acting as such) “users”. If moderators are not users, then that may be of considerable significance. That is because when it comes to assessing content recommender systems and forward and share functionalities, only those systems/functionalities that operate on the user-to-user part of the service fall to be considered. If moderators are not users, and if a content recommender system or forward and share functionality is only available to moderators, then that system/functionality will be left out of account.

(3)

Assessing whether each of a number of different features of Wikipedia amount to a content recommender system or a forward and share functionality. These include individual Wikipedia pages (including the main page) and banners and templates, the Wikipedia search function (including search query autocompletion and ranking of results by relevance), the New Pages Feed, a recent changes feed, a content translation tool, a QR code generator, a short-url generator, a “cite this page” function, and a “newcomer tasks” feature.