Reddit’s challenge to Online Safety Code designation to be appealed to Irish Court of Appeal

The High Court ruled in June against Reddit and fellow online platform Tumblr when they challenged the Commission after it designated both platforms part of a group of ‘video-sharing platform services’ (VSPS) – alongside Facebook, Instagram, YouTube, Udemy, TikTok, LinkedIn, Pinterest and X, formerly Twitter - that would be subject to Ireland’s new online safety code expected to take effect by the end of October.

Reddit’s move to appeal the High Court’s decision was made under section 38(6) of the Broadcasting Act 2009, as amended by section 8 of the Online Safety and Media Regulation Act 2022, which allows for High Court decisions made under section 38 to be appealed where the High Court certifies that its decision involves “a point 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. Tumblr did not apply for leave to appeal.

In its application, Reddit’s legal counsel Andrew Fitzpatrick SC submitted that the mechanism for this appeal as contained within the Act shows a recognition from the legislature that the law in this area may require clarity in future and owing to the “novel” nature of the case, the area of law in question was sufficiently uncertain and undeveloped to merit clarification by the Court of Appeal.

While the Commission’s counsel Catherine Donnelly SC opposed two of Reddit’s grounds for appeal - namely whether the judge was correct in concluding that there is a difference between embedded links and hyperlinks as a matter of law such that the respondent was entitled to treat them differently, and whether the respondent was entitled to make its designation on the basis of native video content only - the Commission did agree with the certification of the remaining grounds for appeal which Reddit submitted.

Justice Phelan, who heard Reddit’s application, refused leave to appeal on the grounds opposed by the Commission but granted leave to appeal in respect of the agreed grounds of appeal on the basis that there was a “dearth” of case law involving this subject matter both in Ireland and in Europe, and that the case was therefore of exceptional public importance.

Sarah Twohig of Pinsent Masons in Dublin said that, as the first case of its kind and the first appeal to the Court of Appeal to be brought under section 38 of the Act, the decision to grant Reddit leave to appeal was “hugely significant”.

“The decision of the Court of Appeal will be highly pertinent to all platform providers and businesses within the scope of the EU Audiovisual Media Services Directive, and those VSPS’ captured by Ireland’s new Online Safety Code, as its decision will provide much needed clarity in an area previously unconsidered in Ireland and Europe,” she said.

“The fact that the only two grounds of appeal being certified were those that were agreed between the parties strengthens the bases upon which the Commission made its designations.”