Jumping the gun? Wikimedia loses challenge on OSA 2023 categorisation criteria (Wikimedia Foundation v Secretary of State)
TMT analysis: The High Court has dismissed the judicial review challenge to the Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025, SI 2025/226 (the Category Threshold Regulations) brought by the Wikimedia Foundation (which hosts Wikipedia) together with a user and editor of Wikipedia (together, Wikimedia). Services categorised pursuant to the Category Threshold Regulations are subject to additional duties under the Online Safety Act 2023 (OSA 2023), with Category 1 services being subject to the most rigorous duties and oversight. The crux of Wikimedia’s complaint was that the categorisation criteria in the Category Threshold Regulations are logically flawed: the criteria were intended to capture large, profitable social media companies, where viral dissemination is common, but were drafted too broadly and thereby likely capture Wikipedia. The court rejected Wikimedia’s arguments in this regard and dismissed the grounds of challenge based on breach of statutory duty and irrationality. The court refused to hear the remaining two grounds predicated on breaches of the Human Rights Act 1998 (HRA 1998), as Wikimedia could not show it was a ‘victim’ under the HRA 1998 (as Ofcom has not yet determined if Wikipedia is a Category 1 service). However, the court suggested it was open to Wikimedia bringing another challenge after a categorisation decision has been reached. Written by Vivien Zhu, associate at Bristows LLP.