Irish court refuses Reddit and Tumblr’s video regulation legal challenges

In January, Coimisiún na Meán (the Commission) designated Reddit and Tumblr as among a select group of ‘video-sharing platform services’ (VSPS) that will be subject to Ireland’s new online safety code when it takes effect.

Under the proposed code, the VSPS would be required, among other things, to take appropriate measures to protect users from specific types of harmful online material – such as cyberbullying, promotion of self-harm or suicide and eating disorders; use age verification mechanisms to protect minors from content which may impair their mental, moral or physical development; and implement age assurance to address the risk of children accessing pornography or scenes of gratuitous violence in cases where it is possible for users to upload such material.

The code is provided for under Ireland’s Online Safety and Media Regulation Act 2022, which implements the EU’s 2018 Audiovisual Media Services Directive (AVMSD). It is currently being vetted by the European Commission and is expected to take effect later this year.

Reddit and Tumblr commenced separate judicial review challenges in the Irish High Court earlier this year against the Commission’s decision to designate their services as VSPSs.

In its judicial review application, Reddit advanced many arguments against its designation as a VSPS, one of which was that the Commission did not adequately consider the differing ways in which videos are used on its website, the majority of which are stated to be hyperlinks and embedded videos which are displayed on Reddit but hosted on other third-party websites. In response, the Commission argued that its jurisdiction is not merely limited to so-called native videos – videos hosted on the platform itself – and that Reddit’s use of recommender systems was akin to organising content within the meaning of the AVMSD.

The High Court has now ruled that the Commission did not err when it considered embedded videos hosted on another platform fall within the scope of content to be regulated under the AVMSD. In reaching its view, the court considered the extent to which the Commission had followed guidelines that the European Commission had drawn up to support national regulators to make appropriate designations of VSPSs in their own jurisdictions.

The judge, Ms. Justice Siobhán Phelan, said: “In my view the uploading of a link which allows video content to be transmitted on or through the platform is clearly within scope of the Revised AVMS Directive where in consequence of the presence of the uploaded link on the platform, the video is made available or provided or disseminated through the platform on which the link has been uploaded.”

“I am satisfied that [the Commission] properly concluded that embedded video links to audiovisual programmes and/or user generated videos that are available on [Reddit’s] service as well as native video posts constitute audiovisual programmes and/or user-generated videos … Such links are capable of being captured by the definition of user generated video and/or audio visual programming under the Revised AVMS Directive because they allow for video sharing activity of the type which it is sought to control under the Directive, providing for the sharing of potentially harmful video content by making it available to consumers for consumption on the platform using video functionality and tools, including organisational tools like a recommender system, in a manner which monetises video and in circumstances where a sufficiency of indicators identified in the [European Commission] guidelines are met,” she said.

“In this way the video is ‘made available’ or ‘provided’ to the consumer or the consumer is ‘exposed’ to harmful content in the manner contemplated under the Revised AVMS Directive,” the judge added.

Sarah Twohig of Pinsent Masons in Dublin said: “The judge’s findings on the point could have implications for other online intermediaries that may have considered until now that there was no prospect of them being designated as VSPSs in Ireland, because of the way in which video content is shared on their platforms.”

In its judicial review application, Tumblr claimed the Commission’s interpretation of the definition of VSPS was flawed, contending that videos constitute a minimal part of the user experience of its service. It said that barely 1% of its users access videos on its service each month. In response, the Commission submitted that the potential harm from minor use is no different from that of platforms where video-sharing constitutes a major part of their activities.

In determining whether the Commission, in reaching its decision to designate Tumblr as a VSPS, had inadequate regard to the European guidelines, the High Court highlighted how the Commission had itself considered that the volume of video content accessed on Tumblr was not sufficient for the service to satisfy the quantitative criteria for designation that the European Commission drew up. However, the court said the Commission was entitled to consider other factors in reaching its designation decision – and that this approach is endorsed in the European guidelines.

“Adherence to the EC guidelines by [the Commission] in the decision-making process in this case is apparent from the manner in which the designation decision, through the reasoning provided, sequentially and seriatim addresses the indicators identified in the European Commission guidelines in turn,” Ms. Justice Siobhán Phelan said. “While the quantitative data was considered and it was acknowledged that it did not support designation, quite properly the designation decision did not rest on this finding. The fact that video-sharing features contributed in an important manner to the functionality and attractiveness of the service was an important aspect of the designation decision, as is clear from its terms.”

Twohig said: “The court’s view on this point strengthens the argument that the approach of the regulator towards designation is being carried out in compliance with the relevant legislation and supporting guidelines issued by the European Commission, to which it must have regard, and gives more standing to its decisions going forward.”