The Delhi High Court will examine the source articles of Ken and the Caravan, which form the basis of the allegedly defamatory sections of the Asian News International (ANI) Wikipedia article. Justice Subramonium Prasad pointed out on December 18 that to hold Wikipedia liable for defamation, it would first have to read the source articles and see whether the page’s contributors had accurately represented them on the Wikipedia page.

An Indian news agency ANI had continued Wikipedia earlier this year about sections of the encyclopedia article on ANI that referred to it as a propaganda tool. Last month, Wikipedia had accepted to summon the editors who worked on the disputed page before a division bench of the Delhi High Court.

The court will consider both scenarios before issuing an injunction:

If the page’s contributors and editors did not understand what the source article meant and offered a defamatory interpretation, then the court could prevent those people from making similar statements in the future. However, if the publishers’ statements accurately represented their sources, then the court should delve further into this aspect.

The judge pointed out that there were two possibilities: first, the statements contained in the source documents were themselves defamatory. Second, the statements made on the Wikipedia page were not confirmed by the source. The court should consider both scenarios before issuing an injunction, which would prevent the publishers (two to four defendants) from making such statements in the future.

The court will take freedom of expression into account before making an order:

The judge said that before granting an injunction in favor of the ANI, he should consider the implications of Article 19(1)a of the constitution. “The cardinal principle that the courts have enunciated, that in the case of 19(1), an injunction must be the exception and not the rule. Keeping this in mind, I have to examine the case – the issue of irreparable loss, prima facie case and balance of convenience,” he said.

On the other hand, ANI’s lawyer Siddhant Kumar asked the judge to balance the right to freedom of expression with the right to reputation. “Your Lordship saw in Subramaniam Swamy, KS PuttaswamyOr Kiran Bedi. Since the 1980s, the right to reputation has also been a facet of fundamental rights,” he declared.

Republishing defamatory articles is a cause of action in itself:

Kumar argued that Wikipedia’s account of the Ken and Caravan source articles presented a separate cause of action. He further alleged that the Wikipedia page inaccurately stated that subscriptions to the ANI feed had declined due to the quality of their journalism. “Actually, that’s factually false. In fact, they have increased since then, and my turnover (ANI) has increased since then,” he said. He also claimed that allegations of employee mistreatment, republished by Wikipedia, were inaccurate.

According to Kumar, attempts to edit the page questioning the agency’s ties to the government and its employee retention records were removed by Wikipedia editors. “The cause of action arose out of the removal of these statements and the republishing of the same statements,” he said.

Kumar said there were two exceptions to the single publication rule in defamation. In Khawar Butt vs. Asif Nazar MirThe Delhi HC held that multiple publications of the same defamatory material did not give rise to separate causes of action. However, if republication allowed the material to reach a different or wider audience, this would give rise to a new cause of action.

Wikipedia helped defamatory content reach a wider audience

ANI argued that the earliest publications were in newspapers or magazines, which contained opinions, while Wikipedia claimed to be an encyclopedia. “The nature of publishing in an encyclopedia, first of all, is completely, entirely different from publishing in a news magazine which can be considered a matter of (opinion),” Kumar said. He pointed out that Wikipedia was relied upon as a source even by the Supreme Court in several judgments, which more than satisfied the idea of ​​a reasonably understanding person.

“The illustrious justices of the Supreme Court view Wikipedia as an encyclopedia and a source of information. So a reasonable person would do it too,” he said.

Furthermore, Kumar argued that since Ken and Caravan’s articles were behind paywalls while Wikipedia was free, a wider audience could access the defamatory material.

However, the judge emphasized that Khawar Butt vs. Asif Nazar Miron which the ANI’s argument was largely based, occurred in a different context. The court had delivered the judgment during a hearing on Order 7 Rule 11 of the Code of Civil Procedure (CPC), which allows the court to dismiss a suit without trial. On the other hand, the ANI sought an interim injunction under Order 39, Rules 1 and 2 of the CPC, which allows the court to issue an injunction.

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Wikipedia’s defense:

“Essentially, the complainant’s grievance is not that anything was put in place. But the complainant’s grievance was that something in response to what had already been published for several years had been changed and deleted,” Wikipedia lawyer Jayant Mehta said. He pointed out that the statements considered by ANI to be defamatory had been in the public domain for several years, much longer than the limitation period provided for defamation. He also asked the court to strike a balance between freedom of expression and the prevention of defamation, and to take into consideration the potential for a chilling effect on freedom of expression.

Mehta further argued that exceptions to the single publication rule of Khawar Butt vs. Asif Nazar Mir do not apply here, as the first involved the republication of printed materials on the Internet. “Here (in this case) you have material available on the Internet itself. It’s the same media,” he said.

The judge also questioned Mehta, stating that he appeared to be defending the actions of Wikipedia users while at the same time claiming to be a neutral intermediary.

“I have to defend my model, my model of freedom of expression,” Mehta said, adding: “As far as I am concerned, this model which allows people to express themselves freely, provided that they can rely on a source.

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