X International Unlimited Company, which operates X, had alleged that the media regulator engaged in “regulatory overreach” in its approach to restrictions on certain video content.
Coimisiún na Meán’s online safety code, which was adopted last October and came into effect earlier this month, sets out legally binding rules for video-sharing platforms, and is aimed at protecting the public – especially children – from harmful online content.
The new Online Safety Code obliges video-sharing platforms to put measures in place to protect children from harmful content online, to have age-assurance measures where appropriate, to provide parental controls, and to have user-friendly reporting mechanisms.
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The commission has argued that, as Ireland’s regulator for online safety, it developed rules and regulations rooted in Irish and EU legislation following extensive consultation.
X, owned by Elon Musk, had sought a High Court order compelling the commission to quash its decision to adopt certain sections of the code. The company also sought the court to overturn the commission’s decision to apply the code to its platform.
It took particular issue with a section of the code that requires video-sharing platforms to preclude users from uploading or sharing video that the code defines as “restricted” which can include content that bullies or humiliates a person, or promotes eating disorder behaviour, suicide or self-harm, or behaviour prejudicial to the safety of children.
X said the definition was “broadly framed” and that the EU’s Audiovisual Media Services Directive draws a clear distinction between illegal content and “legal but harmful” content.
In a judgment, Mr Justice Conleth Bradley said on Tuesday he was refusing the reliefs sought by X. The judge dismissed several arguments made by the platform in the proceedings, including that the code was out of step with European legislation.
The judge found that the code did not go beyond what is permitted by the Audiovisual Media Service Directive (AVMSD), a European Union directive that underpins the code, and said that the code was not in conflict with the Digital Services Act, a European Union regulation that also sets out rules for online content.
In the context of this case, the judge noted the Digital Services Act treats provisions in the AVMSD “in a complementary manner”. The latter directive is not “displaced or substantially curtailed” by the Digital Services Act, the judge said, as had been submitted by X.
The AVMSD compliments the Digitial Services Act in “providing specific rules in determining what content can be harmful to minor”, the judge noted.
X had submitted that in adopting the sections complained of in the safety code, Coimisiún na Meán went beyond what is permitted by the AVMSD, allowing for a total ban or prohibition of certain online content. X said that the directive only allows for measures to control access to certain online content.
X also argued that parts of the code strayed into the regulation of matters within the scope of the Digital Services Act, a European Union regulation that also sets out rules for online content. Further to this, X argued that the code was in conflict with the provisions of the Digital Services Act.
The judgment will be formalised later in the week. Mr Justice Bradley said he was minded to make an order for costs in favour of the commission, given it has been entirely successful in defending the action.
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