The High Court has dismissed separate challenges by Reddit and Tumblr against An Coimisiún na Meán’s decisions to include them in a list of video-sharing platforms to be regulated under a new online safety code.
In her judgements, Ms Justice Siobhán Phelan refused to set aside and rejected all of the media companies’ arguments against An Coimisiún’s (Media Commission) decisions.
Both companies claimed that they should not have been included on the list and that the decisions will severely and adversely affect the operation of their platforms if allowed to stand.
In its judicial review action, Reddit Incorporated asked the court to quash An Coimisiún’s December 2023 decision to designate Reddit as a named video-sharing platform service (VSPS).
Reddit Inc, of Wilmington, Delaware in the United States, claimed it did not meet the definition of a video-sharing platform under the relevant EU Audio Visual and Media Services (AVMS) directive which was implemented in Ireland by the Online Safety and Media Regulation Act 2022.
Tumblr Inc, which is also US based, claimed in its judicial review that a similar decision made by An Coimisiún in respect of it was invalid, and amounted to a misinterpretation and misapplication of the definition of a VSPS under EU law and Irish broadcasting legislation.
While similar in nature, the two cases had raised different legal points and were heard and determined by the judge separately.
An CoImisiún opposed both actions and rejected the platform’s claims that the decisions amounted to errors of law, were irrational and unreasonable.
In its decisions, the court noted claims that the new code was introduced by An Coimisiún because Ireland is facing infringement proceedings in the European Court of Justice.
This is for failing to transpose EU law on the regulatory framework for audio-visual media, including traditional TV broadcasters, video-sharing platform services and on-demand services.
The court also heard that until the code proposed by the regulator is fully implemented, the AVMS directive will not have been fully transposed into Irish law.
In her judgement regarding Reddit’s action, Ms Justice Phelan said that the firm’s case centred around two central arguments.
Firstly, that as the applicant is a US corporate body it argued that on a proper interpretation of the Directive Reddit was not subject to the jurisdiction of the Irish State.
Secondly, it submitted that the respondent erred in law in its interpretation of sections of the Directive by treating Reddit’s own or native videos the same as hyperlinked or embedded video, which are external to it, when it came to considering if Reddit should be included on the list of designated platforms.
The judge rejected those arguments and said there was “no ambiguity or contradiction” arising from the respondent’s differing treatment of each type of video when An Coimisiún arrived at its decision.
The judge added that Reddit’s arguments on jurisdiction amounted to a fundamental misunderstanding of the legal framework governing the determination of jurisdiction under the laws regarding video-sharing platforms.
The judge said “great care”, “following a fully open and transparent process”, had been taken by the respondent before it decided to include Reddit on its list.
The judge added there was “ample sufficiency of material available” to An Coimisiún “to support its decision” regarding Reddit.
Reddit’s application to refer the matter to the EU Court of Justice was also dismissed by the judge.
In relation to microblogging site Tumblr’s claim, Ms Justice Phelan said that its main argument was that it should not have been included because of the volume of video published on its platform.
It claims that its video content was minor and ancillary to its activities.
An Coimisiún, Tumblr argued, had erred in law by including it in the list, because it had not properly regarded data it was provided that showed the low rate of video on Tumblr.
However, the court rejected Tumblr’s arguments, and said that the respondent properly interpreted and applied the proper criteria applicable under the relevant AVMS directive.
It had not been established that An Coimisiún had based its decision to designate Tumblr as a named video-sharing platform other than in a proper manner, the judge said.
All relevant issues and indicators had been considered by An Coimisiún as part of its overall assessment on whether to include Tumblr on the list of video-sharing platforms.
An Coimisiún was entitled to conclude, on the evidence before it, that video sharing is an essential function of Tumblr in relation to its inclusion on the list, the judge said.
No error, still less “manifest error” has been demonstrated in the designation of Tumblr as a video-sharing platform service, the judge concluded.
