X Internet Unlimited Company v Coimisiún Na Meán

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley,Conleth Bradley
• Judgment Date: 29 July 2025
• Neutral Citation: [2025] IEHC 442
• Year: 2025
• Court: High Court
• Docket Number: Record No. 2024/1424 JR

Between:

X Internet Unlimited Company

Applicant

and

Coimisiún Na Meán

Respondent

[2025] IEHC 442

Record No. 2024/1424 JR

AN ARD-CHÚIRT

THE HIGH COURT

Judicial review – Online safety code – Audiovisual Media Services Directive – Applicant challenging the respondent’s decision to adopt particular provisions of an online safety code – Whether the provisions sought to be impugned go further than what was required in transposing Article 28b (1) to (3) of the Audiovisual Media Services Directive

Facts: The applicant, X Internet Unlimited Company (X), brought a challenge by way of judicial review to a decision made on 10 October 2024 by the respondent, Coimisiún na Meán (the Commission), to adopt particular provisions of an Online Safety Code (the Code). X argued that the provisions sought to be impugned in Part B of the Code go further than what was required in transposing Article 28b (1) to (3) of the Audiovisual Media Services Directive (the AVMSD), for example by invoking provisions in the terms and conditions of video-sharing platform service providers which amount to content control rather than access control and in providing for a process of suspension arising from the infringement of those terms and conditions when these matters are addressed by the Digital Services Act (Regulation (EU) 2022/2065) (the DSA) in its provisions which has a pre-eminent application over the AVMSD and the Broadcasting Act 2009 by virtue of its provisions and the fact that its choice of introduction as a legal instrument is as a Regulation which gives effect to a process of full or complete harmonisation.

Held by the High Court (Bradley J) that, in terms of the provisions of the DSA, and in particular Recitals (9) and (10), Article 2(4) and Article 14, it treats of the provisions of the AVMSD and those which refer to the terms and conditions of video-sharing platform service providers in a complementary manner and, contrary to the submissions made on behalf of X, this is not reduced by the fact that, as a directive, the AVMSD is a measure of minimum harmonisation and nor is the relationship between the DSA and the AVMSD in this specific context one where the AVMSD has been displaced or substantially curtailed by the DSA because it is a provision of maximum harmonisation. Bradley J held that the applicant placed insufficient weight on the concept of another Union Act being ‘complementary’ to the DSA when the nature of the relationship between the DSA and the AVMSD as prescribed through the mechanism of inter alia Article 2(4) of the DSA (informed by Recital (10)) is considered, and particularly so, when it comes to the terms and conditions of video-sharing platform service providers and the protection of minors and the juxtaposition of such complementary Union Acts (which includes the AVMSD, the Platform-to-Business Regulation and Terrorist Content Online Regulation) with the horizontal system of addressing these matters employed in the DSA. Further, Bradley J held that the provisions of ss. 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code which addresses the terms and conditions of video-sharing platform service and provide for a process of suspension arising from the infringement of those terms and conditions do not conflict with the DSA, including Article 14.

Bradley J refused X the reliefs sought.

Reliefs refused.

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 29 ^th day of July 2025

CONTENTS

INTRODUCTION	2
Preliminary	2
LEGISLATIVE MEASURES	5
Article 28b of the AVMSD	5
The Broadcasting Act 2009 as amended by the Online Safety and Media Regulation Act 2022	9
The DSA	10
DISCUSSION & DECISION	12
The general approach to interpretation	12
The Legislative Prism	14
Without Prejudice/Lex Specialis	17
Harmonisation	19
Background to the Code	21
The Code: ‘terms and conditions’ & related obligations	23
The juxtaposition of the DSA with the complementary provisions of the AVMSD	31
The ‘measures’ in the terms and conditions	35
CONCLUSION	44
PROPOSED ORDER	46
Appearances	46

INTRODUCTION

Preliminary

1 This is a challenge brought by way of judicial review by the Applicant (“X”) to a decision made by Coimisiún na Meán (“the Commission”) to adopt particular provisions of an Online Safety Code (“the Code”). The decision which is sought to be impugned was made on 10 ^th October 2024 and published on 21 ^st October 2024.

2 Consequent upon the provisions of the Online Safety and Media Regulation Act 2022 (“the 2022 Act”), the BAI 1 was dissolved and the Commission was established (on 15 ^th March 2023) as the State's national regulatory authority with responsibility inter alia for overseeing the regulation of broadcasting and video-on-demand services, including the establishment of a regulatory framework for online safety in accordance with Article 30 of the Audiovisual Media Services Directive (“the AVMSD”). 2 The Commission is, therefore, the State's independent media regulator which inter alia regulates broadcasters, video-on-demand providers and online platforms.

3 The Code is an online safety code which applies to video-sharing platform services 3, including such services provided by X (previously known as “Twitter”). Video-sharing platform services can also comprise intermediary services within the meaning of the Digital Services Act (“the DSA”) 4, which include hosting services and online platforms also further defined by the DSA. The AVMSD sought to address the challenges brought about by the use, including the use by the general public and minors, of video-sharing platforms where audiovisual content can include, for example, harmful content and hate speech.

4 An example of the State's obligations under the AVMSD is the corollate duty on it to ensure that video-sharing platform providers include measures in their terms and conditions which, for example, protect minors from content which may impair their physical, mental or moral development, protect the general public from content containing incitement to violence

or hatred, and a requirement on providers of video-sharing platforms, such as X, to ensure that their terms and conditions require commercial communications to be identifiable as such and prohibit certain types of communications which are harmful

5 A particular focus of these proceedings is inter alia on the juxtaposition of those obligations with the provisions of Article 14 of the DSA which provides for general transparency obligations and general restrictions applicable to the terms and conditions of providers of intermediary services.

6 As explained on the Commission's webpage, the DSA applies to all online intermediary service providers (“ISPs”) that provide services in the EU, including online marketplaces, social networks, content-sharing platforms, app stores, and online travel and accommodation platforms. Further obligations apply to very large online platforms (“VLOPs”) and very large search engines (“VLOSEs”). VLOPs which are based in the State include Apple, Google (YouTube, Google Play, Google Maps, Google Shopping), Shein, LinkedIn, Meta (Facebook, Instagram), Microsoft, Pinterest, TikTok, Temu and X.

7 The Originating Notice of Motion and Amended Statement of Grounds dated 19 ^th December 2024 are verified in the Affidavit of Barry Murphy, employee of the Applicant and the Global Head of Safety Content and Law Enforcement of the Applicant sworn on 15 ^th November 2024. The Statement of Opposition on behalf of the Commission is dated 20 ^th January 2025 and is verified in the first Affidavit of Niamh Hodnett sworn on 21 ^st January 2025.

8 Ms. Hodnett's Affidavit exhibits the relevant documentation which arose as part of the statutory consultation process, including, for example, responses and consultant reports, which led to the draft Code and then the final iteration of the Code which was adopted by the Commission.

9 The Statement of Grounds and Opposition papers recognise that the central issue in this case raises what can be described as a discrete matter of legal interpretation concerning the vires of the Commission to make and adopt the Code having regard to the AVMSD and the DSA.

10 The second Affidavit of Barry Murphy is sworn on 10 ^th February 2025 and the central legal issue raised by X is referred to again, namely that Articles 6a(1), 28b(1)(a) and 28b(3) of the AVMSD and the DSA “ preclude the [Commission] from imposing an outright prohibition, as opposed to access control measures, on content that impairs the “physical, mental or moral development” of minors.”

11 By reference to the practical challenges that online platforms face when having to respond to demands for the removal of content whether by governmental agencies or individuals, Mr. Murphy, in his second Affidavit, referred inter alia to categories of restricted content (applicable to video content and associated user comments) and the risk test and states that the Commission had erred in concluding that it was ‘appropriate and necessary’ to favour an outright prohibition on restricted content in circumstances, Mr. Murphy contends, “ where (a) this prohibition will result in the removal of video content which poses no risk to minors, and which may in fact be relevant to matters of civic discourse; and (b) equivalent content will remain lawful and freely available across a range of media and online services over which the [Commission] is precluded by the DSA from adopting online safety codes”.

12 This Affidavit is replied to in the second Affidavit of Niamh Hodnett sworn on 24 ^th February 2025. By way of example, Ms. Hodnett states that the definitions of “ restricted video content” and “ restricted indissociable user-generated content” cover the content falling within the scope of Article...