X Internet Unlimited Company v Coimisiún Na Meán [No. 2]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 20 January 2026
• Neutral Citation: [2026] IEHC 28
• Docket Number: Record No. 2024/1424JR

Between/

X Internet Unlimited Company

Applicant

and

Coimisiún Na Meán (No. 2)

Respondent

[2026] IEHC 28

Record No. 2024/1424JR

AN ARD-CHÚIRT

THE HIGH COURT

Certificate of appeal – Points of law – Exceptional public importance – Plaintiff seeking a certificate to appeal – Whether the principal judgment involved points of law of exceptional public importance

Facts: The applicant, X Internet Unlimited Company, applied to the High Court for a certificate to appeal, pursuant to the provisions of s. 38 of the Broadcasting Act 2009, the judgment delivered in the principal judgment: [2025] IEHC 442. Having regard to (i) the legislative provisions which prescribed the appellate process in the case, (ii) the applicable principles which govern a certificate application, and (iii) the principal judgment, Bradley J was of the view that the principal judgment involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal.

Bradley J certified the following points: (i) Does Regulation (EU) 2022/206 (the Digital Services Act) permit the respondent, Coimisiún Na Meán (the Commission), to adopt provisions, pursuant to Article 28b(1) and Article 28b(3) of Directive 2010/13/EU (the AVMSD), such as s. 12.1 of the Online Safety Code (the Code), which requires a video-sharing platform service (VSPS) provider to include in their terms and conditions and related obligations of the service, restrictions that preclude users from uploading or sharing “restricted video content” and “restricted indissociable user-generated content”, as opposed to imposing access control measures with respect to that content, having regard to the Commission’s decision that it is appropriate that the uploading or sharing of this content be precluded in the terms and conditions and related obligations of the service in order to protect the physical, mental or moral development of minors? (ii) If the answer to (i) is in the negative, does the Digital Services Act permit the Commission to adopt provisions, in the alternative, pursuant to Article 28b(6) of the AVMSD, such as s. 12.1 of the Code rather than imposing access control measures with respect to that content, having regard to the Commission’s decision that it is appropriate that the uploading or sharing of this content be precluded in the terms and conditions and related obligations of the service in order to protect the physical, mental or moral development of minors? (iii) Does the Digital Services Act permit the Commission to adopt provisions, pursuant to Article 28b(1) and Article 28b(3) of the AVMSD, such as s. 12.1 of the Code, which requires a VSPS provider to include in their terms and conditions and related obligations of the service, restrictions that preclude users from uploading or sharing “restricted video content” and “restricted indissociable user-generated content”, in circumstances where the persons to whom the “risk” under the “risk test”, defined in the Code, attaches, may be a child or an adult, having regard to the Commission’s decision that it is appropriate that the uploading or sharing of this content be precluded in the terms and conditions and related obligations of the service, in order to protect the physical, mental or moral development of minors?

Bradley J also certified the following points: (iv) If the answer to (iii) is in the negative, does the Digital Services Act permit the Commission to adopt provisions, in the alternative, pursuant to Article 28b(6) of the AVMSD, such as s. 12.1 of the Code in circumstances where the persons to whom the “risk” under the “risk test”, defined in the Code, attaches, may be a child or an adult, having regard to the Commission’s decision that it is appropriate that the uploading or sharing of this content be precluded in the terms and conditions and related obligations of the service, in order to protect the physical, mental or moral development of minors? (v) Does the Digital Services Act permit the Commission to adopt provisions, pursuant to Article 28b(1) and Article 28b(3) of the AVMSD, such as ss. 12.6 to 12.9 and 13.6 to 13.9 of the Code? (vi) If the answer to (v) is in the negative, does the Digital Services Act permit the Commission to adopt provisions, in the alternative, pursuant to Article 28b(6) of the AVMSD, such as ss. 12.6 to 12.9 and 13.6 to 13.9 of the Code?

Application granted.

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 20 ^th day of January 2026

INTRODUCTION

1 This is the Applicant's application for a certificate to appeal, pursuant to the provisions of s. 38 of the Broadcasting Act 2009 (“the 2009 Act”), the judgment delivered in X Internet Unlimited Company v. Coimisiún Na Meán [2025] IEHC 442 (“the principal judgment”).

2 In summary, as outlined in the ‘Conclusion’ section of the principal judgment (beginning at paragraph (186)), I considered – having regard inter alia to (i) the general approach to be applied to the interpretation of the applicable national and EU legislative matters, (ii) the legislative prism through which these matters were to be considered, (iii) the use of terms, including, for example, ‘without prejudice’, ‘ lex specialis’ and ‘harmonisation’, (iv) the provisions of the Online Safety Code (“the Code” addresses online safety which applies to video-sharing platform services (“VSPS”) including such services provided by the Applicant (previously known as “Twitter”) sought to be impugned, ‘terms and conditions’ and related obligations, (v) the juxtaposition of the provisions of Regulation (EU) 2022/2065 (“the Digital Services Act” or “the DSA”) with the complementary provisions of Directive 2010/13/EU as amended by Directive (EU) 2018/1808 (“the Audiovisual Media Services Directive (“the AVMSD”)), and (vi) the ‘measures’ specified in the terms and conditions of the provisions of the Code which were sought to be impugned – that the promulgation by the Commission of sections 12.1, 12.6 to 12.9, and 13.6 to 13.9 of the Code was not ultra vires Article 28b of the AVMSD, or its transposing national provisions in the Broadcasting Act 2009 as amended by the Online Safety and Media Regulation Act 2022 (“the 2009 Act”), and did not amount to an impermissible or inconsistent overreach of the provisions of the Digital Services Act.

3 At paragraph (187) of the principal judgment, it was stated, in summary, that the terms of the provisions of the Digital Services Act, and in particular Recitals (9), (10), Article 2(4) and Article 14, treated 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 this was not reduced by the fact that, as a directive, the AVMSD was a measure of minimum harmonisation and nor was the relationship between the Digital Services Act and the AVMSD in this specific context one where the AVMSD had been displaced or substantially curtailed by the Digital Services Act because it was a provision of maximum harmonisation.

4 In the Conclusion section, paragraph (189) of the principal judgment further stated that the provisions of sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code which addressed the terms and conditions of video-sharing platform services and provided for a process of suspension arising from the infringement of those terms and conditions, did not conflict with the Digital Services Act, including Article 14.

5 Further, in summary, paragraph (190) of the principal judgment concluded that the full horizontal harmonisation of the Digital Services Act did not detract from the fact that the provisions of Article 2(4) (informed by, inter alia, Recital (10)) provided for other Union law (as per the AVMSD as transposed in the 2009 Act) and for the making and adoption of sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code which sought to ensure that the terms and conditions of providers of intermediary services protect minors from content which may impair their physical, mental or moral development, as well as measures to protect the general public from content containing incitement to violence or hatred and a further requirement on providers of video-sharing platforms to ensure that the terms and conditions require commercial communications to prohibit certain types of communications which are harmful. The principal judgment found that such provisions were within the vires of the AVMSD and the 2009 Act, and were entirely complementary to the Digital Services Act and not in conflict with it.

6 Having regard to – (i) the legislative provisions which prescribe the appellate process in this case, (ii) the applicable principles which govern a certificate application, and (iii) the principal judgment, I am of the view, for the reasons set out in this judgment, that the principal judgment involved points of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal. I have certified those points at the end of this judgment under the sub-heading “Conclusion: certified points/questions”.

7 In so certifying, I have had the benefit of detailed written and oral submissions from the parties which included an iterative (and without prejudice) exchange in relation to three proposed questions, counter formulations of those questions and further related observations.

STATUTORY PROVISIONS FOR APPEAL

8 Turning to the first question of the applicable statutory provisions which prescribe the application for a certificate, insofar as these proceedings are concerned, s. 38(5)(c) of the 2009 Act provides that, subject to s. 38(6), no appeal shall lie to the Court of Appeal from a decision of the High Court on an application for judicial review following leave granted under s. 38(2).

9 Section 38(6) of the 2009 Act provides that the High Court may...