The Supreme Court Wednesday reserved its verdict on Wikimedia Foundation’s appeal against the Delhi High Court order to take down a page titled ‘Asian News International v. Wikimedia Foundation’, while observing that courts cannot order content takedowns just because they don’t like the material.
The Wikipedia page carried details of the High Court hearing on a defamation complaint filed by ANI against Wikipedia, including the comments of the judge.
Justice A S Oka, presiding over a two-judge bench, said that the High Court has the power to direct content takedowns only if there is a prima facie finding that the material in question is contemptuous.
“…we are not saying that Court is powerless to direct that some content should be removed. But there has to be first a prima facie finding recorded with reasons that what is published in contemptuous. So condition precedent is a prima facie finding giving reasons why it amounts to contempt,” the judge said.
Senior Advocate Kapil Sibal, appearing for Wikimedia Foundation, pointed out the allegedly objectionable part to the bench.
The court said that an expression in the page, “threatened”, referring to the observations made by the judge during the hearing, should not have been used.
Sibal responded that the proceedings were reported by websites such as LiveLaw and newspapers such as The Indian Express, adding that they did not face proceedings. “It’s not as if we picked up something on our own,” he said.
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Referring to an article on the page about the observations made during the hearing before the HC, Sibal said it was authored by a visiting professor at Harvard, appeared in The Indian Express and was mentioned in a footnote.
The counsel for ANI said the principal question is about the manner of functioning of Wikipedia.
Sibal contended: “You can’t say there should be no discussion. We have an open justice system; this has a chilling effect.”
Agreeing with the submission, Justice Oka said: “If somebody publishes a news item about me and my brother (referring to Justice Bhuyan) that we threatened somebody in court, we will not get bothered. The only thing is judge can’t answer if somebody puts words in the judge’s mouth. Every day we hear that we are insensitive etc. Why should we be bothered? But we can’t say for someone else.”
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Reserving the verdict, the judge said that even if someone says something objectionable about court proceedings, the court cannot order their removal unless it satisfies the prima facie test.
“Suppose somebody says something about court proceeding before this court, only on the ground that we feel it objectionable, or we don’t like it, we can’t direct removal. Only if we come to a conclusion that this satisfies the well-settled test of contempt prima facie finding, then we can do it. Only because we don’t like it we can’t do it,” he said.