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

It is, generally, unlawful for a public authority to act in a way that is incompatible with a Convention right: section 6(1) of the Human Rights Act 1998. That can, in principle, include making a regulation that is incompatible with a Convention right. Section 6(1) does not apply if, as the result of primary legislation, the public authority could not have acted differently: section 6(2)(a). Nor does it apply if the public authority was acting so as to give effect to a provision made under primary legislation which cannot be read or given effect in a way which is compatible with Convention rights: section 6(2)(b). The Secretary of State does not rely on section 6(2).

A person who claims that a public authority has acted in a way which is unlawful by section 6(1) may bring proceedings under the 1998 Act: section 7(1)(a). They may only do so if they are a victim of the unlawful act: section 7(1). Moreover, a claimant only has a sufficient interest to bring a claim for judicial review in respect of such an act if they are a victim of that act: section 7(3).

A person is a victim of an act that is unlawful by reason of section 6(1) only if they would be a victim for the purposes of article 34 of the Convention if they brought proceedings in the European Court of Human Rights: section 7(7).

The Grand Chamber of the European Court of Human Rights has recently restated the test to establish victim status within the meaning of article 34 – Verein Klimaseniorinnen Schweiz v Switzerland (2024) 79 EHRR 1 at [465] – [470]:

“465.

In order to fall into the category of direct victims, the applicant must be able to show that he or she was “directly affected” by the measure complained of... This implies that the applicant has been personally and actually affected by the alleged violation of the Convention, which is normally the result of… acts… of State authorities… allegedly infringing the applicant’s Convention rights…

466.

However, this does not necessarily mean that the applicant needed to be personally targeted by the act or omission complained of. What is important is that the impugned conduct personally and directly affected him or her…

469.

Two types of potential victim status may be found in the case-law… The first type concerns persons who claim to be presently affected by a particular general legislative measure. The Court has specified that it may accept the existence of victim status where applicants contend that a law violates their rights, in the absence of an individual measure of implementation, if they belong to a class of people who risk being directly affected by the legislation, or if they are required either to modify their conduct or risk being prosecuted (see Tănase v Moldova…)…

470.

The second type concerns persons who argue that they may be affected at some future point in time. The Court has made clear that the exercise of the right of individual petition cannot be used to prevent a potential violation of the Convention and that, in theory, the Court cannot examine a violation other than a posteriori, once that violation has occurred. It is only in highly exceptional circumstances that an applicant may nevertheless claim to be a victim of a violation of the Convention owing to the risk of a future violation… In general, the relevant test to examine the existence of such victim status is that the applicant must produce reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur; mere suspicion or conjecture being insufficient in this regard…”

The claimants do not positively contend that Wikipedia is captured by regulation 3. It follows that they are unable to show that they fall within the first category of victim. The claimants say that it may turn out, in due course, that Wikipedia is captured by regulation 3. However, Verein Klimaseniorinnen Schweiz shows that it is only in highly exceptional circumstances that victim status arises because of a risk of a future violation of the Convention. The claimants must produce reasonable and convincing evidence of the likelihood that a violation of their Convention rights will occur.

This approach to victim status is apt where the events which will give rise to a breach of the Convention have not yet occurred but will, on the evidence, likely occur in the future. In Asselbourg and other v Luxembourg (application 29121/95, 29 June 1999) the contingency was the likelihood of future damage sufficient to cause a violation of Convention rights based on the discharge of air-polluting waste. In Senator Lines GmbH v Austria and others (2004) 39 EHRR SE3 (application 56672/00, 10 March 2024) the contingency was the risk that a fine would be upheld. In Verein Klimaseniorinnen Schweiz, thecontingency was the likelihood that the individuals represented by the applicant would be personally and directly affected by the state’s failure to take reasonable measures to reduce harm due to anthropogenic climate change.

The nature of the contingency here is quite different. The real contingency is not whether Ofcom will decide that Wikipedia is a Category 1 service. Ofcom does not have a choice, or any discretion, about that. It must apply regulation 3 (interpreted in accordance with section 3 of the 1998 Act). If regulation 3 (thus interpreted) covers Wikipedia, then it is a Category 1 service. If it does not, it is not.

The real contingency is therefore the correct interpretation of regulation 3. That is not a matter that depends on evidence as to future events. It is, in principle, an issue that is capable of being determined by a court now. It would have been open to the claimants to ask the court to do that, and to advance a positive argument that regulation 3 applies to Wikipedia. They have chosen not to do that, preferring to advance an argument on that issue in the context of Ofcom’s decision-making process. However, that choice means that they are unable, in these proceedings, to demonstrate that they are a victim. It is not open to them to argue that they are a victim because Ofcom, or a court, may interpret regulation 3 in a particular way in the future – that is not the type of highly exceptional circumstance in which it is appropriate to ascribe victim status on the basis of a risk of future violation.

Mr Paines correctly pointed out that the interpretation of regulation 3 is a question of law for the court. He complained that the Secretary of State had not addressed this issue and submitted that if the Secretary of State’s case is that regulation 3, properly construed, excludes a service such as Wikipedia then he should have said so. The same, however, applies to the claimants. If it is their case that Wikipedia falls within the scope of regulation 3 then, on Mr Paines’ logic, they should have said so. The fact is that both parties have chosen to litigate this claim in a way that seeks to avoid the critical central issue.

Mr Paines submits that it would be open to the court to reach a definitive interpretation of regulation 3, even though that is not a course that either party has invited the court to take. To the extent that was an implicit invitation to embark on such an exercise, I decline to do so. It is a matter of considerable importance, and it would be inappropriate to reach a determination without hearing full argument from all parties. Moreover, there is sense in the approach that both parties have taken of leaving it to Ofcom to undertake its regulatory functions and to decide for itself, in the first instance, how regulation 3 should be interpreted. The problem for the claimants is that a consequence of that approach is that they are unable to demonstrate that they are victims for the purpose of section 7 of the 1998 Act.

Even if it were apt to apply the second limb of the Verein Klimaseniorinnen Schweiz test in the present case, the claimants have not shown that it is satisfied. In particular, I do not accept that it is “likely” that Wikipedia is a Category 1 service. The furthest that Ofcom has gone is to say that it might be. The Secretary of State’s officials considered only that it was a “possibility” (whereas other services were “likely” to qualify). The first claimant has, in effect, invited Ofcom to conclude that it does not qualify, and it has advanced cogent arguments in support of that invitation. The issue does not depend simply on a natural construction of the words of regulation 3, because the regulation must be read, and given effect, in a way that is compatible with Convention rights. There is, arguably, more than one way in which regulation 3 might be interpreted, compatibly with Convention rights, so as to produce an outcome that does not capture Wikipedia. That includes the approach to be taken to “users” (including whether administrators or moderators are properly to be regarded as “users” when they are acting as such); the approach to be taken to “content recommender systems” (including whether they are to be taken as systems that recommend content to users generally (as opposed to administrators/moderators)); and the approach to “functionality for users to forward or share regulated user-generated content” (including whether that is to be taken as functionality that applies to users generally, or whether it applies to a functionality that is only available to a small subset of the user base). The claimants have not shown (and have not sought to show) that regulation 3 is incapable of being interpreted in a manner that is compatible with Convention rights.

The claimants rely on Tănase v Moldova (2011) 53 EHRR 22 and Michaud v France (2014) 59 EHRR 9 and say that they are members of a class of people who risk being directly affected by the legislation. However, these are cases which fall within the first category of victim described in Verein Klimaseniorinnen Schweiz at [469] (where Tănase is cited) and require the claimants to show that they are presently affected by the legislation. They have not done that.

Even if it turns out that Wikipedia meets the criteria of regulation 3, as it is currently drafted, it does not necessarily follow that this will lead to a breach of Convention rights. Mr Bradley-Schmieg and BLN advance a powerful case that the application of Category 1 duties to Wikipedia is incompatible with (at least) article 10 of the Convention. If they are right about that, then the Secretary of State may be required to take further action (whether by amending the regulation or by exempting a class of service that includes Wikipedia).

I do not, however, consider that it is inevitable that the application of Category 1 status to Wikipedia would necessarily result in a breach of Convention rights. That may depend on how the Code of Practice (compliance with which is deemed to achieve compliance with the statutory duties) operates. One of Wikipedia’s primary concerns is the requirement to enable users to choose only to encounter content from users whose identity has been verified. I accept that this runs completely counter to Wikipedia’s operating model (which has, on the evidence, been shown to be effective in promoting freedom of expression whilst promoting a high quality of content). There may, however, be ways to accommodate the requirement without causing undue damage to Wikipedia’s operations. It may, for example, be possible to ensure that users who make the requisite choice are only able to access pages where every editor who has contributed to the live content on the page has verified their identity. It is not obvious that this would be unduly difficult to achieve. It would mean that such users would only be able to access a small subset of Wikipedia’s content, but that would be their free, autonomous choice. It may well be that only very few people would make that choice, and that might then raise a question as to the proportionality of the entire exercise. This type of approach might, though, be sufficient to address section 15(10)(b) of the Act (it would also be necessary separately to address section 15(10)(a)).

These are, however, all matters that are much better addressed further down the road. The parties implicitly recognise that, by declining to litigate, at this stage, the fundamental issue of the ambit of regulation 3. Further, I accept Ms Ivimy’s submission that a decision as to whether the claimants’ Convention rights are breached will require an intense analysis of the facts which cannot be carried out in the abstract or by reference to hypothetical scenarios: Verein Klimaseniorinnen Schweiz at [460], Imperium Trustees (Jersey) Limited v Jersey Competent Authority [2025] UKPC 28; [2025] 1 WLR 3225 per Lord Lloyd-Jones (giving the judgment of the Board) at [78].

For these reasons, the claimants have not established that they are victims, or that they have standing to bring ground (3) of this challenge. Accordingly, I refuse permission to advance ground (3).