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

The decision to make regulation 3 was irrational if it was a decision which no reasonable Secretary of State could have made. No reasonable Secretary of State could make a regulation if the basis for doing so involved demonstrably flawed reasoning which robbed the regulation of a sound logical basis: R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin); [2019] 1 WLR 1659 per Carr J at [98].

There is a perfectly cogent argument that it would be irrational to decide that Wikipedia has a content recommender system and a forward/share functionality that causes viral dissemination of its content. That is not, however, the decision that the Secretary of State made; and he was not required to address that issue.

The decision that the Secretary of State was required to make was mandated by paragraph 1(1) of schedule 11 to the Act. It was to specify Category 1 threshold conditions for the user-to-user part of regulated user-to-user services relating to the number of users of that part of the service and the functionalities of that part of the service and any other characteristics of that part of the service or factors relating to that part of the service that the Secretary of State considered relevant. The regulations were required to specify the ways in which the threshold conditions may be met and to specify at least one condition about number of users or functionality: paragraph 1(4). The Secretary of State was required to take account of the likely impact of the number of users and the functionalities on viral dissemination: paragraph 1(5). The Secretary of State did so, which is why ground (1) of this claim is dismissed. The Secretary of State was also (at least implicitly) required to take account of Ofcom’s advice: paragraph 2(5), 2(7)(b), 2(8), 2(11) of schedule 11.

The decision as to the criteria to be set under paragraph 1(1) fell to be made in a highly complex and technical policy area which requires difficult evaluative regulatory assessments. It was impossible to know, on the information available, precisely what the impact would be on individual services. The regulation would have no immediate practical impact on any individual service. There was an opportunity later to amend the regulation, or to exempt particular types of service, if it turned out that the regulation had undesirable consequences. These are all important aspects of the relevant context.

I agree with Mr Paines that the technical context does not immunise the decision from the court’s review. Nor does the fact that the Secretary of State agreed with the recommendation of his officials, formulated after months of consideration. Nor does the fact that the recommendation was to follow statutory advice that was provided by the expert regulator. Nor does the fact that that advice was itself based on statutory research undertaken by the regulator. Nor does the fact that the draft regulations were approved by a resolution of both Houses of Parliament. These are, however, all further important aspects of the relevant context. They inform the degree of circumspection to be applied before concluding that the decision was irrational. If there was some basic logical flaw in the reasoning which robbed the decision of its logic, then it was a flaw that seemingly evaded the expert regulator, experienced policy officials, the Minister and the Secretary of State (and the previous Secretary of State).

Ofcom had put forward closely researched and reasoned advice as to criteria that would, broadly, capture services that give rise to viral dissemination. It was well understood that the proposed criteria might capture some services that do not give rise to viral dissemination and might miss some other services that do give rise to viral dissemination. Once that is recognised, the claimants have not identified any basic flaw in the logic or reasoning that Ofcom applied, and which officials approved, and the Secretary of State accepted. It is easy to see why, in many cases, a content recommender system in association with forward/share functionality is likely, if the user-base is sufficiently large, to give rise to viral dissemination. It is also easy to see why the absence of a content recommender system and a forward/share functionality is likely to limit the potential for viral dissemination. That easy intuition accords with the research that Ofcom conducted.

The real problem is that the criteria are not perfect. They may capture some systems (possibly including Wikipedia) where there may be no real risk of viral dissemination. However, neither Ofcom nor the Secretary of State were acting under a misapprehension that the criteria were perfect in the sense that they would capture all services that give rise to viral dissemination and would not capture any services that do not do so. If there were some obvious alternative criteria that were perfect in that sense (or which objectively more precisely covered the relevant field) then it may have been irrational to accept the officials’ recommendation to follow Ofcom’s advice. However, even now, neither the claimants nor anyone else have suggested a worked-through better alternative formulation.

To the extent that the claimants suggest that the criteria could be limited to content recommender systems and forward/share functionality that are “integral” to the system, they have not identified any research or evidence that this would lead to better alignment with the policy intention (even assuming that it is possible sufficiently to define what is meant by an “integral” characteristic or functionality). Moreover, the Secretary of State was entitled to accept the warnings of his officials that to depart from Ofcom’s evidence and research-based advice would risk creating loopholes, and that it was not practical, at that stage, to seek further advice.

To the extent that the claimants suggest that user-numbers should be defined in a way that takes account of the time that users spend on a service, this suggestion appears to owe more to the particular characteristics of Wikipedia (where users do not typically spend a huge amount of time browsing the system, in comparison with the time typically spent by users on some social media sites) rather than clear evidence as to the relationship between time spent on a service and viral dissemination. Ofcom had not suggested this as a relevant metric and nor had officials. Ms Rowland’s evidence is that officials did consider whether the definition of a content recommender system could be limited by reference to time spent viewing content generated by such a system but concluded that there would be substantial workability issues with that option as it would be very difficult to measure. In the absence of any clear independent evidence that such a metric could easily be devised, that is not an unreasonable or illogical conclusion.

The fact that the criteria may capture some services that do not give rise to viral dissemination does not mean that they are irrational. In the Law Society case, Carr J observed, at [113]:

“A policy-maker may reasonably decide that the disadvantages of a finely tuned solution to a problem outweigh its advantages and that a broader measure is preferable, even if the broader measure is both over- and under- inclusive in that it catches some cases in which there is no or no significant problem and fails to catch some cases in which the problem occurs.”

I accept a submission that was advanced by Mr Paines that bright line rules (which may by their nature be both over- and under- inclusive) are more usually associated with contexts where a very large number of individual decisions need to be made, and tailored decision making must necessarily yield to the desirability of certainty and practicality. Well-known examples include social benefits and immigration systems: Pantellerisco v Secretary of State for Work and Pensions [2021] EWCA Civ 1454 per Underhill LJ at [59], R (Refugee and Migrant Forum of Essex and London) v Secretary of State for the Home Department [2024] EWHC 1374 (Admin) per Cavanagh J at [192] – [193]. I also accept that this context is different. There are likely to be relatively few Category 1 services (the evidence suggests less than 20). A legislative choice could have been made in the Act to enable the regulator to make tailored individualised decisions as to which services should fall within Category 1. However, that was not the choice made by Parliament. Paragraph 1(1) of schedule 11 requires the setting of boundaries by reference to user numbers, functionalities and characteristics, rather than permitting a decision-maker a free hand to determine on a case-by-case basis which services should fall within Category 1. Whether or not that choice was made because of the need for the system to operate fairly across many different types of online service, or for it to be future-proof in an area which is rapidly developing, or for it to cohere with categories 2A and 2B (which are likely to involve many more services), or for it to provide an objective and workable regulatory framework in a complex technical area, is beside the point. The fact is that this was the legislative choice made by Parliament. As Baroness Jones put it, “I recognise that our hands are largely tied by the constraints of the Act.” The Secretary of State was obliged to make regulations accordingly.

A separate issue arises as a result of the comment, in the Ministerial Submissions of 18 and 31 July 2024, that Wikipedia has content of democratic importance and journalistic content. That does not, in itself, provide a rational basis for drafting the Category 1 thresholds in a manner that captures Wikipedia. The mere fact that it contains content of democratic importance and journalistic content does not mean that there is a risk of viral dissemination (which is what the Category 1 threshold is intended to capture). However, nothing in the Submission, or in the decision-making process, suggests that the Secretary of State thought otherwise. The reference to content of democratic importance and journalistic content arose in the context of Ministerial concern about “outlier” services, including online encyclopaedias, which it had not originally been thought would be captured by Ofcom’s criteria, and consideration being given to an amendment to carve out certain services. The point was that if Wikipedia was otherwise captured by Ofcom’s criteria, then, in deciding whether to consider some form of carve out, it was relevant to take account of the fact that it contained content of democratic importance and journalistic content. Given that such content is of high importance to the “public discourse” policy consideration that underpins Category 1, that was a legitimate observation to make.

For these reasons, while I grant permission to claim judicial review on ground (2), this ground of claim is also dismissed.