Reddit Incorporated v Commisiun na Mean

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 20 June 2024
• Neutral Citation: [2024] IEHC 367
• Docket Number: [Record No.: 2024/56JR]

Between:

Reddit Incorporated

Applicant

and

Coimisiún Na Meán

Respondent

[2024] IEHC 367

[Record No.: 2024/56JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 20th day of June, 2024

TABLE OF CONTENTS

INTRODUCTION	3
REGULATORY FRAMEWORK	3
Scope of Regulatory Control	4
Revised AVMS Directive	4
Jurisdiction to Regulate	5
Provision for Jurisdiction under EU law	6
Jurisdiction under Broadcasting Act 2009	7
Domestic Power to Designate	8
EC Guidelines	8
DECISION MAKING PROCESS AND REDDIT	9
Notice of Designation of VSPS	10
Consultation regarding Quantitative Data	10
Consultation Response	11
Information Notice	11
Response to Information Notice	14
VSPS Designation Decision Framework (“the Framework”)	18
Preliminary Designation	19
Preliminary Designation Response	19
Designation Decision	23
Final Statement of Reasons	24
Engagement with Reddit Response	32
Submission to Draft Online Safety Code	37
PROCEEDINGS	37
ISSUES	38
DISCUSSION AND DECISION	39
Admission of Ex Post Facto Evidence	39
Proper Interpretation and Application of the Essential Functionality Test	41
Interpretative Principles	41
Identifying Aims and Objectives	41
Jurisdictional Issue	44
Whether there was an error of law or assessment in the designating Reddit as a VSPS without differentiating between content assessed as constituting audiovisual programmes or user generated videos	52
Whether the Respondent erred by treating “Non-Native” videos (including hyperlinks and embedded links) as audio visual programmes or user generated videos within the meaning of the Revised AVMS Directive in determining that Reddit is required to be regulated as a VSPS	55
Whether an Error of Law and/or Fact in Interpreting the EC Guidelines	69
Whether errors of assessment in the treatment of quantitative and qualitative data, monetisation and revenue generation and tools aimed at enhancing the visibility or attractiveness of the audiovisual content	74
CONCLUSION	75

INTRODUCTION

1 . These proceedings came before me for hearing as the first of two sets of proceedings listed consecutively concerning the proper interpretation of Directive 2010/13/EU as amended by Directive (EU) 2018/1808 (the “Revised AVMS Directive”) which was implemented in the State by the Broadcasting Act 2009 as amended by the Online Safety and Media Regulation Act 2022 (hereinafter “the 2009 Act”). The other proceedings concern a social media platform known as Tumblr (bearing record number: 2024/114 JR). As the legal issues arising in the two cases are not identical, despite considerable overlap, two separate judgments are required (see separate judgment delivered today in Tumblr v. An Coimisiún na Meán [2024] IEHC 366 (hereinafter “the Tumblr proceedings”).

2 . The service provided by the Applicant, Reddit, is described as a forum based social media platform. It enables users to create self-governing communities to express shared interests. These communities are called subreddits and facilitate discussion between users. Users enjoy videos on feeds on Reddit either as part of discussions or autonomously without recourse to any discussions; those feeds themselves being designed to surface autonomously enjoyable popular content to users.

3 . The Respondent is the competent authority in Ireland for the purposes of the Revised AVMS Directive. Where a service appears to be a video-sharing platform service (hereinafter “VSPS”) within the meaning of the Revised AVMS Directive and jurisdiction is established, the Respondent is required to designate it as a service to which online safety codes may be applied.

4 . On the 29 ^th of December 2023, the Respondent designated (hereinafter the “Designation Decision”) Reddit as a named VSPS under s.139E and s.139G(2) of the 2009 Act having determined that the Applicant is under the jurisdiction of the State. As a designated VSPS in the State, Reddit may be subject to online safety codes adopted by the Respondent.

5 . In these proceedings, the Applicant, as provider of the Reddit service, seeks to quash the Designation Decision.

6 . The challenge is advanced on various grounds but, in essence, is grounded on two central planks. Firstly, it is contended that Reddit, as a US corporate body, is not properly subject to the jurisdiction of the State on a proper interpretation and application of article 28a of the AVMS Directive. Secondly, it is contended that the Respondent erred in its interpretation and application of articles 1(aa), 1(b) and 1(ba) of the Revised AVMS Directive and s. 2(2) of the 2009 Act by treating not just “ native video” but embedded or hyperlinked video as a part of the video functionality of Reddit when determining whether an essential functionality of Reddit is devoted to video sharing such as to warrant its designation under the Revised AVMS Directive and the 2009 Act.

REGULATORY FRAMEWORK

7 . Although the judgment in the Tumblr proceedings is addressed to the distinct legal issues arising in that case and there are important differences between the two cases, significant overlap exists most especially in terms of regulatory framework and background. To avoid unnecessary duplication, I refer to my judgment in the Tumblr proceedings for a more detailed outline of general background including the history to the adoption of the Revised AVMS Directive arising from an identified need to expand regulation in line with technological developments and the need to protect users and consumers, the role of the Respondent (including the preparatory consultation and research work undertaken before proceeding to exercise powers under the 2009 Act, most notably the PA Consulting Report and the Designation Decision Framework both of which were published and available to stakeholders and further consultation as part of the statutory process notably consultations in relation to an Online Safety Code and Levy Order in which Reddit also participated) and the applicable legal and regulatory framework. I adopt this more detailed summary of the background without repeating verbatim in this judgment. I propose in this judgment to focus only on relevant elements of the decision-making process concerning Reddit and to address the issues which are specific to the case made on behalf of the Applicant. For coherence it is nonetheless necessary to refer to a number of salient aspects of the regulatory framework more specifically.

Scope of Regulatory Control

Revised AVMS Directive

8 . In relation to the substantive question, namely whether Reddit is a VSPS within the meaning of the Revised AVMS Directive as transposed by the 2009 Act, significance attaches to Recital 5 of the Directive which provides that the aim of the Revised AVMS Directive is “ not to regulate social media services” save where programmes and user-generated videos constitute “ an essential functionality” of the service. It is further stated that where programmes and user-generated videos constitute an ancillary or minor part of the service, they do not constitute an essential functionality of the service.

9 . The substantive scope of the Revised AMVS Directive is addressed in Article 1(1)(aa) which provides that a VSPS includes a service where an “ essential functionality” of the service is “ devoted to providing programmes, user-generated videos or both” for which the service provider does not have editorial control to the general public in order to inform, entertain or educate by means of electronic communication over the internet and the organisation of which is determined by the video sharing platform provider including by automatic means or algorithms in particular by displaying, tagging or sequencing. The reference to minor or ancillary is not repeated, and these terms are not further defined in the Revised AVMS Directive itself.

10 . Article 1(1)(b) provides that “ programme” means “ a set of moving images with or without sound constituting an individual item, irrespective of its length, within a schedule or a catalogue established by a media service provider, including feature length films, video clips, sports events, situation comedies, documentaries, children's programmes and original drama”.

11 . Article 1(1)(ba) provides that “ user generated video” means “ a set of moving images with or without sound constituting an individual item, irrespective of its length, that is created by a user and uploaded to a video-sharing platform by that user or any other user”. The term “ native” video is not used in the Revised AVMS Directive.

Broadcasting Act, 2009 (as amended)

12 . Section 2 of the 2009 Act seeks to transpose Article 1(1)(b) and (ba) of the Revised AMVS Directive.

13 . Section 2(1) provides that “audiovisual programme” means a set of moving images with or without sound which, in the case of an audiovisual media service, constitutes an individual item, irrespective of its length, within a programme schedule or a catalogue (implementing the term “ programme” as used in the Revised AVMS Directive).

14 . Section 2(1) of the 2009 Act further provides that “user-generated video” means user-generated content, as that term has been defined, consisting of a set of moving images with or without sound and that “user-generated content” in relation to a relevant online service, means content created by a user of the service and uploaded to the service by that or another user. The term “ native” video is not used in the 2009 Act.

15 . Section 2(2) of the 2009 Act provides that a “video-sharing platform service” means a service within the meaning of art.56 and art.57 of the Treaty on the Functioning of the European...