Business

High Court dismisses Reddit and Tumblr challenges over new online safety code

Companies claim they should not have been included on list of those to be regulated

Reddit and Tumblr say their inclusion in a list of video-sharing platforms to be regulated under a new online safety code will severely and adversely affect the operation of their platforms. Photograph: Bryan O'Brien

Aodhan O'Faolain
Thu Jun 20 2024 - 17:47

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.

Ms Justice Siobhán Phelan in her judgments refused to set aside and rejected all of the media companies’ arguments against An Coimisiún na Meán’s (Media Commission) decisions.

Both companies claimed 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.

Reddit Incorporated asked the court to quash An Coimisiún’s December 2023 decision to designate it as a named video-sharing platform service.

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Reddit Inc, of Wilmington, Delaware, 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 here 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 the Coimisiún for 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 raised different legal points and were heard and determined separately.

An Comisiún opposed both actions, and rejected the platform’s claims that the decisions amounted to errors of law or were irrational and unreasonable.

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 European Union (EU) law on the regulatory framework for audiovisual media, including traditional TV broadcasters, video-sharing platform services and on-demand services.

The court heard the EU directive will not have been fully transposed into Irish law until the proposed code is fully implemented.

In her judgment on Reddit’s action, Ms Justice Phelan said the firm’s case centred around two arguments.

Firstly, as it is a US corporate body, a proper interpretation of the EU directive concludes Reddit was not subject to the Irish jurisdiction.

Secondly, it submitted, the commission legally erred in its interpretation of sections of the EU directive by treating Reddit’s own videos the same as hyperlinked or embedded video, which are external to it.

The judge rejected those arguments and said there was “no ambiguity or contradiction” arising from the commission’s differing treatment of each type of video.

Reddit’s arguments on jurisdiction amounted to a fundamental misunderstanding of the legal framework, she said.

The judge said the commission took “great care [ ...] following a fully open and transparent process” before including Reddit on the list. There was “ample sufficiency of material available” to support the commission’s decision, she held.

Ms Justice Phelan said Tumblr’s main argument was that it should not have been included because the volume of video published on its platform is minor and ancillary.

An Coimisiún, Tumblr argued, erred in law by including it in the list, because it had not properly regarded data it provided showing the low rate of video on Tumblr.

The judge found the commission properly interpreted and applied the proper criteria applicable under the relevant EU directive.

An Coimisiún was entitled to conclude that video sharing is an essential function of Tumblr, the judge said.

No error, still less a “manifest error”, has been demonstrated in the designation of Tumblr as a video-sharing platform service, the judge concluded.

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