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

I refuse permission to claim judicial review on grounds (3) and (4) because the claimants do 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.

I grant permission to claim judicial review on grounds (1) and (2), but I dismiss the claim. The claimants have not shown that the decision to make regulation 3 is flawed on any of the grounds that they have advanced.

I stress 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). It is, however, premature to rule on that now. Neither party has sought a ruling as to whether Wikipedia is a Category 1 service. Both parties say that decision must, for the moment, be left to Ofcom. If Ofcom decides that Wikipedia is not a Category 1 service, then no further issue will arise.

Ofcom’s decision as to which services fall within Category 1 is a public law decision which is potentially amenable to the court’s review on grounds of public law error (including incompatibility with a Convention right). So, if Ofcom impermissibly concludes that Wikipedia is a Category 1 service, the claimants have a remedy by way of judicial review.

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.