Tumblr Incorporated v Commisiun na Mean

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 20 June 2024
• Neutral Citation: [2024] IEHC 366
• Docket Number: [Record No. 2024/114 JR]
• Court: High Court

Between:

Tumblr Incorporated

Applicant

and

Coimisiún Na Meán

Respondent

[2024] IEHC 366

[Record No. 2024/114 JR]

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	4
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)	4
The Need for a Revised Directive	4
Directive (EU) 2018/1808 of 14 November 2018 (hereinafter “the Revised AVMS Directive”)	6
European Commission Guidelines on the practical application of the essential functionality criterion of the definition of a ‘video-sharing platform service’ under the Audiovisual Media Services Directive ( 2020/C 223/02)	9
The Role of Coimisiún na Meán	11
Online Safety Regulation under The Broadcasting Act, 2009 as amended by the Online Safety and Media Regulation Act 2022	12
Notice of Designation of VSPS	14
Decision Framework for the Designation of a Named Service as a VSPS and Communication with Service Providers	14
Consultation on Levy Order	16
Levy Order	16
Online Safety Code Consultation	16
DECISION MAKING PROCESS AND TUMBLR	17
Consultation regarding Quantitative Data	17
Consultation Response	18
Information Notice	19
Information Notice Response	21
VSPS Designation Decision Framework (“the Framework”)	22
Preliminary Designation	23
Preliminary Designation Response	23
Designation Decision	26
Final Statement of Reasons	27
Engagement with the Response of Tumblr	31
PROCEEDINGS	36
DISCUSSION AND DECISION	37
Factual Context	38
Interpretative Rules	38
What relevance or weight should be afforded to the ex post facto expert evidence?	40
Did An Coimisiún misinterpret and misapply the definition of a VSPS contained in Article 1(1)(aa) of the Revised AVMS Directive and section 2(2) of the 2009 Act in making its Designation Decision (Ground 1)?	44
Did An Coimisiún fail to provide adequate reasons for the Designation Decision, in breach of the right to fair procedures and Article 41 of the Charter (Ground 2)?	63
Did An Coimisiún fail to have any or any adequate regard to relevant considerations or place undue weight on irrelevant considerations in its Designation Decision (Ground 3)?	68
Did An Coimisiún fail to examine the relevant aspects of the evidence before it relating to this case (Ground 4)?	71
Is the Designation Decision vitiated by manifest errors of assessment (Ground 5)?	74
CONCLUSION	76

INTRODUCTION

1 . Under the Broadcasting Act 2009 (as amended by the Online Safety and Media Regulation Act 2022) (hereinafter the “2009 Act”), the State seeks to provide for measures to protect young people from types of video or audio visual content which may impair their physical, mental or moral development as required by the provisions of Directive 2010/13/EU as amended by Directive (EU) 2018/1808 (the “Revised AVMS Directive”). Under the Revised AVMS Directive, Members States are also required to protect the general public from illegal content and from content containing incitement to violence or to hatred available on video sharing platforms which are subject to regulation.

2 . Consequent upon the provisions of the 2009 Act implementing the requirements of the Revised AVMS Directive, a Video Sharing Platform Service (hereinafter “VSPS”) within the meaning of the 2009 Act is identified as a form of relevant online service that the Irish competent authority, An Coimisiún na Meán (hereinafter “An Coimisiún”), must designate under the 2009 Act, both as a category of services and as a named service where the provider of the service or services is established in Ireland.

3 . Not every platform which permits video sharing is subject to regulation under the 2009 Act. These proceedings concern a challenge to the designation by An Coimisiún of the Tumblr platform, described in the proceedings a microblogging platform that allows users to share content including video content, as a VSPS.

4 . These proceedings are the second in time of two sets of proceedings instituted challenging designation as a VSPS by two separate social media platforms both with a presence in the State, the other case being Reddit v. Coimisiún na Meán (Record No. 2024/56 JR)(hereinafter “ Reddit”). While there is some overlap between the two sets of proceedings and the two cases were heard before me consecutively, they were separately argued with different legal teams and the issues are not the same. Accordingly, it is necessary to deliver two separate judgments.

5 . Unlike the parallel challenge in Reddit, in these proceedings it is not disputed that Tumblr is subject to regulation in Ireland pursuant to the provisions of Article 28a of the Revised AVMS Directive as given effect to by s. 2B of the 2009 Act if properly considered a VSPS.

6 . The issue at the heart of these proceedings is whether by reason of the scale or amount of video content shared, Tumblr is properly designated as a VSPS. It is Tumblr's case that it is not properly subject to regulatory control as a VSPS because its video functionality is minor or merely ancillary to its activities. Tumblr contends that the decision of An Coimisiún to designate Tumblr as a VSPS based on an application the “ essential functionality” test prescribed under Article 1(aa) of the Revised AVMS Directive as implemented in Irish law by s.2(2)(c) of the 2009 Act (as amended) is vitiated by errors of law and fact and is invalid on various grounds, most specifically that proper regard has not been had to the quantitative data provided which shows low rates of video on Tumblr.

REGULATORY FRAMEWORK

7 . Before turning to consider the designation of Tumblr as a VSPS, it is necessary firstly to consider the general regulatory framework and decision-making context, factually and legally.

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)

8 . Directive 2010/13/EU (Audiovisual Media Services Directive)(hereinafter “the AVMS Directive”) adopted in March, 2010 aimed to create and ensure the proper functioning of a single European Union market for audiovisual media services, while contributing to the promotion of cultural diversity and providing an adequate level of consumer and child protection.

9 . It was recognised in Recital 58 of the AVMS Directive that the availability of harmful content in audiovisual media services was a concern for legislators, the media industry and parents and that there would be new challenges, especially in connection with new platforms and new products. Recital 58 recorded that rules protecting the physical, mental and moral development of minors as well as human dignity in all audiovisual media services, including audiovisual commercial communications, were therefore necessary.

10 . The AVMS Directive was based on the ‘country of origin principle’ (“COO”). Under the COO, audiovisual media service providers were subject only to the rules of the Member State where they were established. By abiding by these rules they could freely provide services across the EU. The AVMS Directive applied to television broadcasts and on-demand services if all the following conditions were met (i) providers have editorial responsibility, (ii) providers have as their principal business purpose the provision of programmes to inform, entertain or educate the general public; and (iii) these programmes were comparable, in form and content, to television (“TV-like”). The AVMS Directive did not cover activities that were primarily non-economic.

The Need for a Revised Directive

11 . The need for future revision of the AVMS Directive was heralded even in the terms of that Directive itself where reference was made to “ new technologies in the transmission of audiovisual media services” (in Recital 4) and the requirement for a regulatory framework concerning the pursuit of broadcasting activities which takes “ account of the impact of structural change, the spread of information and communication technologies (ICT) and technological developments on business models,” to “ technological developments” which mean that “ subsidiary criteria should be adapted in order to ensure suitable regulation and its effective implementation” (in Recital 38) and “ there will also be new challenges, especially in connection with new platforms and new products. Rules protecting the physical, mental and moral development of minors as well as human dignity in all audiovisual media services … are therefore necessary” (in Recital 59).

12 . On the 6 ^th of May, 2015, the European Commission adopted a communication entitled ‘A Digital Single Market Strategy for Europe’ in which it announced a review of Directive 2010/13/EU. The European Parliament passed a resolution towards a Digital Single Market of the 19 ^th of January, 2016 on foot of a motion (2015/2147(INI). The effect of the resolution was to urge the European Commission to revise the AVMS Directive to take into account changing viewing patterns and new ways of accessing audiovisual content by aligning linear and non-linear services and by setting out European-level minimum requirements for all audiovisual media services. In so doing the need to ensure and to promote diversity of audiovisual media and to set...