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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> X Internet UnLtd Company v Coimisiun Na Mean (Approved) [2025] IEHC 442 (29 July 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC442.html Cite as: [2025] IEHC 442 |
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APPROVED
AN ARD-CHÚIRT
THE HIGH COURT
[2025] IEHC 442
Record No. 2024/1424 JR
BETWEEN:
X INTERNET UNLIMITED COMPANY
APPLICANT
AND
COIMISIÚN NA MEÁN
RESPONDENT
JUDGMENT of Mr. Justice Conleth Bradley delivered on the 29th day of July 2025
CONTENTS
The Broadcasting Act 2009 as amended by the Online Safety and Media Regulation Act 2022 17
The general approach to interpretation. 23
Without Prejudice/Lex Specialis. 33
The Code: 'terms and conditions' & related obligations. 46
The juxtaposition of the DSA with the complementary provisions of the AVMSD.. 63
The 'measures' in the terms and conditions. 71
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 10th October 2024 and published on 21st 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 15th 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 19th 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 15th November 2024. The Statement of Opposition on behalf of the Commission is dated 20th January 2025 and is verified in the first Affidavit of Niamh Hodnett sworn on 21st 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 10th 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 24th 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 28b(1)(a),(b) and (c) of the AVMSD stating inter alia that "Article 28b(1)(a) addresses content that is harmful to the physical, moral or mental development of minors, and Article 28b(1)(b) and (c) AVMSD address content which is harmful to the general public, which includes both minors and adults". [5] Ms. Hodnett then refers to the importance of the application of the 'risk test' to the content, as outlined in this Affidavit and in her first Affidavit, and addresses 'concepts of bullying and harassment', 'obligations of VSPS under the Code', 'the enforcement of the Code' before returning to the hypothetical example of the risk test in the hypothetical example of a politician referred to by Mr. Murphy in his second Affidavit.
13. Mr. Murphy swore a third Affidavit on 17th March 2025 (previously delivered unsworn to the Commission on 10th March 2025) where he addresses a number of discrete matters including section 12.12 of the Code and refers again to his earlier hypothetical example of the 'politician insult example' and takes issue with a number of matters in Ms. Hodnett's previous affidavits and inter alia refers to Ms. Hodnett's averments in relation to X's Abuse and Harassment Policy and the impact of Section 12.1 of the Code under a sub-heading "Impact on content moderation practices".
14. In her Affidavit on 13th March 2025 (in reply to Mr. Murphy's unsworn Affidavit of 10th March 2025) Ms. Hodnett addresses three discrete matters: first, she inter alia avers that section 12.12 of the Code provides that video content which contains imagery that is either violent or distressing but is uploaded or shared as a contribution to civic discourse on a matter of public interest should not ordinarily be seen by children, and that this may be achieved by appropriate measures such as content rating, age assurance, or parental controls and that it was not necessary, in the first place, for the video-sharing platform services to preclude the uploading or sharing of such content if it does not fall within the definition of "restricted video content" which includes satisfying the "risk test" as defined in section 11 of the Code; second, having regard to the policies and procedures which X has in place (such as its Abuse and Harassment Policy), it could not maintain an argument that the obligations on video-sharing platform services under the Code were "unduly challenging or burdensome" for it; third, in relation to an assertion raised in Mr. Murphy's third Affidavit, the Commission did not accept that foreign laws to which the video-sharing platform services may be subject in jurisdictions outside of the EU were of any relevance to the matters raised in this judicial review challenge or were a matter which the Commission had to have regard to when making the Code.
15. Whilst the respective Affidavits canvass scenarios, including hypothetical situations, in relation to the practical application (and from the Applicant's perspective, consequent difficulties) with the Code, including, for example, the manner of the suspension of a user's account consequent upon an infringement of the terms and conditions, in, for example, sections 12.6 to 12.9 of the Code, the central question which arises in this challenge remains a discrete legal challenge based on the vires of the Commission to regulate video-sharing platform services by the making and adopting of the Code.
16. X takes no issue with the Code insofar as Part A of its provisions are concerned which it accepts is a faithful transposition of Articles 28b (1), (2) and (3) of the AVMSD.
17. In brief, on behalf of X, the central complaints made in relation to Part B of the Code are as follows: first, it is contended that the Code impermissibly goes further than the AVMSD allows; second, it is argued that the Code covers areas which are exclusively within the scope of the DSA, an EU legal provision of maximum or full harmonisation; third, it is posited that the provisions of the Code which are sought to be impugned in fact conflict with the provisions of the DSA.
18. In particular, X contends that the provisions of sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code have the effect of undermining the principle of full harmonisation and unlawfully exceed what was required to transpose Article 28b of the AVMSD and impermissibly seek to regulate and create conflicts with areas which are covered by the DSA.
19. It is claimed, therefore, that these provisions of the Code are invalid and ultra vires the Commission's powers under chapter 3 of Part 8A of the Broadcasting Act 2009 as amended by the Online Safety and Media Regulation Act 2022 (together referred to in this judgment as "the 2009 Act") and/or are contrary to EU law.
LEGISLATIVE MEASURES
Article 28b of the AVMSD
20. Articles 28a and 28b (Chapter IXA) of the AVMSD address "provisions applicable to video-sharing platform services". Article 28a of the AVMSD concerns rules as to whether a video‑sharing platform provider is established in the territory of a Member State.
21. Article 28b of the AVMSD provides as follows:
"(1) Without prejudice to Articles 12 to 15 of Directive 2000/31/EC, Member States shall ensure that video-sharing platform providers under their jurisdiction take appropriate measures to protect:
(a) minors from programmes, user-generated videos and audiovisual commercial communications which may impair their physical, mental or moral development in accordance with Article 6a(1);
(b) the general public from programmes, user-generated videos and audiovisual commercial communications containing incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter;
(c) the general public from programmes, user-generated videos and audiovisual commercial communications containing content the dissemination of which constitutes an activity which is a criminal offence under Union law, namely public provocation to commit a terrorist offence as set out in Article 5 of Directive (EU) 2017/541, offences concerning child pornography as set out in Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council and offences concerning racism and xenophobia as set out in Article 1 of Framework Decision 2008/913/JHA.
(2) Member States shall ensure that video-sharing platform providers under their jurisdiction comply with the requirements set out in Article 9(1) with respect to audiovisual commercial communications that are marketed, sold or arranged by those video-sharing platform providers.
Member States shall ensure that the video-sharing platform providers under their jurisdiction take appropriate measures to comply with the requirements set out in Article 9(1) with respect to audiovisual commercial communications that are not marketed, sold or arranged by those video-sharing platform providers, taking into account the limited control exercised by those video-sharing platforms over those audiovisual commercial communications.
Member States shall ensure that video-sharing platform providers clearly inform users where programmes and user-generated videos contain audiovisual commercial communications, provided that such communications are declared under point (c) of the third subparagraph of paragraph 3 or the provider has knowledge of that fact.
Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a(1) aiming at effectively reducing the exposure of children to audiovisual commercial communications for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended. Those codes shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
(3) For the purposes of paragraphs 1 and 2, the appropriate measures shall be determined in light of the nature of the content in question, the harm it may cause, the characteristics of the category of persons to be protected as well as the rights and legitimate interests at stake, including those of the video-sharing platform providers and the users having created or uploaded the content as well as the general public interest.
Member States shall ensure that all video-sharing platform providers under their jurisdiction apply such measures. Those measures shall be practicable and proportionate, taking into account the size of the video-sharing platform service and the nature of the service that is provided. Those measures shall not lead to any ex-ante control measures or upload-filtering of content which do not comply with Article 15 of Directive 2000/31/EC. For the purposes of the protection of minors, provided for in point (a) of paragraph 1 of this Article, the most harmful content shall be subject to the strictest access control measures.
Those measures shall consist of, as appropriate:
(a) including and applying in the terms and conditions of the video-sharing platform services the requirements referred to in paragraph 1;
(b) including and applying in the terms and conditions of the video-sharing platform services the requirements set out in Article 9(1) for audiovisual commercial communications that are not marketed, sold or arranged by the video-sharing platform providers;
(c) having a functionality for users who upload user-generated videos to declare whether such videos contain audiovisual commercial communications as far as they know or can be reasonably expected to know;
(d) establishing and operating transparent and user-friendly mechanisms for users of a video-sharing platform to report or flag to the video-sharing platform provider concerned the content referred to in paragraph 1 provided on its platform;
(e) establishing and operating systems through which video-sharing platform providers explain to users of video-sharing platforms what effect has been given to the reporting and flagging referred to in point (d);
(f) establishing and operating age verification systems for users of video-sharing platforms with respect to content which may impair the physical, mental or moral development of minors;
(g) establishing and operating easy-to-use systems allowing users of video-sharing platforms to rate the content referred to in paragraph 1;
(h) providing for parental control systems that are under the control of the end-user with respect to content which may impair the physical, mental or moral development of minors;
(i) establishing and operating transparent, easy-to-use and effective procedures for the handling and resolution of users' complaints to the video-sharing platform provider in relation to the implementation of the measures referred to in points (d) to (h);
(j) providing for effective media literacy measures and tools and raising users' awareness of those measures and tools.
Personal data of minors collected or otherwise generated by video-sharing platform providers pursuant to points (f) and (h) of the third subparagraph shall not be processed for commercial purposes, such as direct marketing, profiling and behaviourally targeted advertising.
(4) For the purposes of the implementation of the measures referred to in paragraphs 1 and 3 of this Article, Member States shall encourage the use of co-regulation as provided for in Article 4a(1).
(5) Member States shall establish the necessary mechanisms to assess the appropriateness of the measures referred to in paragraph 3 taken by video-sharing platform providers. Member States shall entrust the assessment of those measures to the national regulatory authorities or bodies.
(6) Member States may impose on video-sharing platform providers measures that are more detailed or stricter than the measures referred to in paragraph 3 of this Article. When adopting such measures, Member States shall comply with the requirements set out by applicable Union law, such as those set out in Articles 12 to 15 of Directive 2000/31/EC or Article 25 of Directive 2011/93/EU.
(7) Member States shall ensure that out-of-court redress mechanisms are available for the settlement of disputes between users and video-sharing platform providers relating to the application of paragraphs 1 and 3. Such mechanisms shall enable disputes to be settled impartially and shall not deprive the user of the legal protection afforded by national law.
(8) Member States shall ensure that users can assert their rights before a court in relation to video-sharing platform providers pursuant to paragraphs 1 and 3.
(9) The Commission shall encourage video-sharing platform providers to exchange best practices on co-regulatory codes of conduct referred to in paragraph 4.
(10) Member States and the Commission may foster self-regulation through Union codes of conduct referred to in Article 4a(2)."
22. In the judgment of the High Court (Phelan J.) in Tumblr Incorporated v Coimisiún na Meán [2024] IEHC 366, the court, at paragraphs 24 to 26, described the provisions of Article 28a and 28b of the AVMSD as follows:
"(24) Articles 28a and 28b set out the provisions applicable to video sharing platform services. Article 28a deals with jurisdiction and sets down rules whereby it may be determined which Member State has jurisdiction to subject a service to regulatory control (not an issue in this case). In relevant part Article 28b requires Member States to ensure that video sharing platforms under their jurisdiction to take appropriate measures to protect minors from user-generated videos which may impair their physical, mental or moral development (Article 28b(1)(a)), the general public from user-generated videos containing incitement to violence or hatred against a person or group based on any of the grounds referred to in Article 21 of the Charter (Article 28b(1)(b)) and the general public from user-generated videos containing content the dissemination of which constitutes an activity which is a criminal offence under Union law (being provocation to commit a terrorist offence, offences concerning child pornography or offences concerning racism or xenophobia).
(25) The Revised AVMS Directive provides at Article 28(b)(3) that appropriate measures shall be determined in light of the nature of the content in question, the harm it may cause, the characteristics of the category of persons to be protected as well as the rights and legitimate interests at stake, including those of the video-sharing platform providers and the users having created or uploaded the content as well as the general public interest. Member States must also ensure that all video-sharing platform providers under their jurisdiction apply such measures but those measures shall be practicable and proportionate, taking into account the size of the video-sharing platform service and the nature of the service that is provided.
(26) Appropriate measures envisaged under Article 28b(3) include, inter alia, establishing and operating age verification systems for users of video-sharing platforms with respect to content which may impair the physical, mental or moral development of minors (Article 28b(3)(f)) and providing for parental control systems that are under the control of the end-user with respect to content which may impair the physical, mental or moral development of minors (Article 28b(3)(h)) and establishing and operating transparent, easy-to-use and effective procedures for the handling and resolution of users' complaints to the video-sharing platform provider in relation to the implementation of the measures (Article 28b(3)(i)). It is patent from its terms that the aim of the Revised AVMS Directive was to reinforce the protection of users, especially minors, from certain forms of illegal and harmful audiovisual content online by imposing certain obligations on video-sharing platform providers. Social media services fall within the scope of application of the new rules on video-sharing platforms when they meet certain prescribed criteria".
The Broadcasting Act 2009 as amended by the Online Safety & Media Regulation Act 2022
23. Article 28b of the AVMSD was transposed in Ireland by Part 8A (Online Safety), Chapter 3 (Online safety codes), section 139K of the Broadcasting Act 2009 as amended and inserted by the Online Safety and Media Regulation Act 2022 [6] which provides for the making, by the Commission, of Online Safety Codes as follows:
"(1) The Commission may make codes ('online safety codes'), to be applied to designated online services in accordance with section 139L.
(2) An online safety code may make provision with a view to ensuring—
(a) that service providers take appropriate measures to minimise the availability of harmful online content and risks arising from the availability of and exposure to such content,
(b) that service providers take any other measures that are appropriate to protect users of their services from harmful online content,
(c) that service providers take any other measures that are appropriate to provide the protections set out in Article 28b(1)(a), (b) and (c) of the Directive, and
(d) that service providers take any measures in relation to commercial communications on their services that are appropriate to protect the interests of users of their services, and in particular the interests of children.
(3) In the case of video-sharing platform services, the Commission shall exercise its powers under this section with a view to ensuring (without prejudice to any other exercise of those powers in relation to video-sharing platform services) that service providers—
(a) take appropriate measures to provide the protections referred to in subsection (2)(c), including appropriate measures referred to in Article 28b(3) of the Directive,
(b) comply with the requirements set out in Article 9(1) of the Directive with respect to audiovisual commercial communications that are marketed, sold or arranged by them, and
(c) take appropriate measures to comply with the requirements set out in Article 9(1) of the Directive with respect to audiovisual commercial communications that are not marketed, sold or arranged by them, taking into account the limited control they exercise over those communications.
(4) Without prejudice to subsection (2) an online safety code may provide for:
(a) standards that services must meet, practices that service providers must follow, or measures that service providers must take;
(b) in particular, standards, practices or measures relating to the moderation of content or to how content is delivered on services;
(c) the assessment by service providers of the availability of harmful online content on services, of the risk of it being available, and of the risk posed to users by harmful online content;
(d) the making of reports by service providers to the Commission;
(e) the handling by service providers of communications from users raising complaints or other matters.
(5) Without prejudice to subsection (2) or (4), an online safety code may prohibit or restrict, in accordance with law, the inclusion in programmes or user-generated content of commercial communications relating to foods or beverages considered by the Commission to be the subject of public concern in respect of the general public health interests of children, in particular infant formula, follow-on formula or foods or beverages which contain fat, trans-fatty acids, salts or sugars.
(6) Without prejudice to subsection (4), the Commission shall make an online safety code, to be applied in accordance with section 139L to such designated online services as the Commission considers appropriate, requiring the service provider to report to the Commission at intervals, specified in the code, of not more than 3 months on the provider's handling of communications from users raising complaints or other matters.
(7) In this section, 'service provider' means the provider of a designated online service."
24. The Commission prepared the Code having regard to the provisions of section 139M of the 2009 Act, in accordance with the process prescribed in section 139N. The Code was adopted by the Commission and notified to the European Commission and Member States pursuant to the TRIS Directive. The Commission determined that the Code applied to inter alia the Applicant, in accordance with the procedures prescribed in section 139L of the 2009 Act.
The DSA
25. Both the DSA and the AVMSD deal with intermediary services.
26. Insofar as the DSA is concerned an intermediary service is defined in Article 3(g) as meaning one of the following information society services: (i) a 'mere conduit' service, consisting of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network; (ii) a 'caching' service, consisting of the transmission in a communication network of information provided by a recipient of the service, involving the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients upon their request; (iii) a 'hosting' service, consisting of the storage of information provided by, and at the request of, a recipient of the service.
27. Article 2 of the DSA deals with its "scope" and application.
28. Whilst this judicial review challenge focuses primarily on Article 2(4) of the DSA, Articles 2(1) and 2(2) address the material and territorial scope of the DSA. The paramountcy of the e-Commerce Directive is recognised in Article 2(3) of the DSA which provides that the DSA shall not affect the application of Directive 2000/31/EC.
29. Article 2(4) of the DSA provides as follows:
"This Regulation is without prejudice to the rules laid down by other Union legal acts regulating other aspects of the provision of intermediary services in the internal market or specifying and complementing this Regulation, in particular, the following:
(a) Directive 2010/13/EU;[ [7]]
(b) Union law on copyright and related rights;
(c) Regulation (EU) 2021/784;[ [8]]
(d) Regulation (EU) 2019/1148;[ [9]]
(e) Regulation (EU) 2019/1150;[ [10]]
(f) Union law on consumer protection and product safety, including Regulations (EU) 2017/2394 and (EU) 2019/1020 and Directives 2001/95/EC and 2013/11/EU;
(g) Union law on the protection of personal data, in particular Regulation (EU) 2016/679 and Directive 2002/58/EC;
(h) Union law in the field of judicial co-operation in civil matters, in particular Regulation (EU) No 1215/2012 or any Union legal act laying down the rules on law applicable to contractual and non-contractual obligations;
(i) Union law in the field of judicial cooperation in criminal matters, in particular a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters;
(j) a Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings."
30. As referred to later in this judgment, the travaux préparatoires of the DSA and the legislative journey which culminated in the adoption of its final terms confirms that Article 2(4) of the DSA seeks to meet and address two distinct and contrasting objectives:
· first, a reference to other Union legal acts regulating other aspects of the provision of intermediary services in the internal market containing legal provisions governing issues which are not regulated by the DSA;
· second, a reference to other Union legal acts which in fact complement and are without prejudice to the DSA.
DISCUSSION & DECISION
The general approach to interpretation
31. In interpreting the provisions of EU law which are at issue in this case, the settled case-law of the CJEU [11] suggests that it is necessary to consider the wording used, its usual meaning in everyday language, the context in which it occurs and the objectives pursued by the rules of which it is part; [12] additionally, the legislative history of the provision concerned may also reveal elements which are relevant to its interpretation. [13] This approach is not dissimilar to the restatement of the principles of statutory interpretation adumbrated in a series of relatively recent decisions of the Supreme Court in Ireland.
32. By way of example, in B.M & J.M (a minor suing by his mother and next friend B.M) v Chief Appeals Officer & Ors [2024] IESC 51, at paragraph 66, the Supreme Court (Collins J.) observed that statutory interpretation was "a unitary exercise that, in every case, has a single objective, namely ascertaining the intention of the legislature from the text adopted by it (which is the starting point and primary focus), read in its proper context and having regard to it purpose." [14]
33. In a similar vein, in Tumblr Incorporated v Coimisiún na Meán [2024] IEHC 366, at paragraphs 155 and 156 of its judgment, the High Court (Phelan J.), in holding that the Commission did not err in deciding that the applicant in that case was properly designated as a VSPS, considered the applicable principles in interpreting some of the same provisions of EU law which were at issue in that case, as follows:
"(155) It is further agreed, and I accept, that in interpreting a provision of EU law, it is necessary to consider, not only its wording, but also the context in which it occurs and the objectives pursued by the legislation of which it forms part (C-570/19 Irish Ferries, at para. 22). The legislative history (travaux preparatoires) is relevant (C-258/99 BASF, at paras. 43, 51 and 56) and assistance may be derived from different language versions (C-64/95 Konservenfabrik Lubella Friedrich Bilker GmbH & Co KG, at para. 17).
Furthermore, the titles to provisions are relevant (C-216/96 Conserve Italia Soc Coop at para. 96). The Recitals in the preamble to a regulation may cast light on the interpretation to be given to its provisions (C-215/88 Casa Fleischhandels-GmbH at para. 31) but cannot be relied on to interpret those provisions in a manner clearly contrary to their wording (C-136/04 Deutsches Milch-Kontor v Hauptzollamt Hamburg-Jonas at para. 32).
(156) The parties are also ad idem that EU legislation must be interpreted to comply with the Charter of Fundamental Rights of the European Union (hereinafter the "Charter'') (C-293/12 Digital Rights Ireland Ltd v Minister for Communications). It is also necessary to interpret EU legislation by reference to the general principles of EU law (C-413/99 Baumbast and R v Secretary of State for the Home Department, paras. 91to 93) which includes the principle of effectiveness. It is further important to note in this respect that the Commission is not entitled to any curial deference in respect of the correct interpretation of the Revised AVMS Directive, which is a question of law (Usk and District Residents Association Ltd v An Bord Pleanála [2009] IEHC 346)".
34. It is well-settled, therefore, that the interpretation of a provision of EU law requires that account be taken not only of its wording and the objectives it pursues, but also of its legislative context and the provisions of EU law as a whole and the origins of a provision of EU law may also provide information relevant to its interpretation. [15]
35. In this regard, while I agree that this application for judicial review raises a discrete legal issue, the AVMSD and the 2009 Act do envisage a detailed consultative (and iterative) process leading to the adoption of the Code where all stakeholders (including X) had an opportunity to engage. As referred to earlier in this judgment, this process is described in the Affidavit, sworn on 21st January 2025, of Niamh Hodnett, the Online Safety Commissioner.
36. Having regard to the applicable principles of interpretation just outlined, this is a relevant factor when regard is to be had to the contextual matters which arise in the task of statutory interpretation. During the iterative consultation process involved in the making of the Code, for example, including responses to drafts, the Commission stated that the definitions of "restricted video content" (and other definitions) were included in order to address both requirements of Article 28b(1)(a) relating to the protection of minors and the requirements of Article 28b(1)(b) and (c) relating to the protection of the general public. It considered that the definitions addressed the harmful online content specified in those sections of the legislative provisions which were capable of posing risks both to minors and the general public which it considered should be regulated by the Code and that, for example, to protect minors, it was both appropriate and necessary to preclude users from uploading or sharing bullying content, content relating to eating or feeding disorders and content which relates to self‑harm or suicide, as specified in the definition of "restricted video content". Due to the risks posed to the well‑being and lives of those who are affected, the Code, which is evidence-based and which arose consequent upon a detailed consultative process, gives effect to the risk test which transforms the potential of harm to minors to the concept of serious harm to the development and the mental and physical development of minors.
37. The detailed and iterative consultation process involved in the making of the Code provided an evidence-based context against which the Commission considered that access control measures (also referred to as "content access measures") were insufficient in ensuring that minors were not exposed to content falling within the definition of "restricted video content" and "restricted indissociable user-generated content". It stated that the indicia of access control measures such as age assurance, parental controls and content rating were insufficient in light of the nature of the content, the harm it may cause to children and the rights and legitimate interests involved. The Commission considered, rather, that there existed an obligation for video-sharing platform service providers to include restrictions in their terms and conditions, and related obligations, to preclude the uploading or sharing of such content and that this was deemed to be both a necessary and appropriate measure to ensure, for example, that children were protected from the most harmful forms of content.
38. Whilst not in any way determinative of any of the legal issues before me, the TRIS communication [16] to the Commission raised no issues in relation to the juxtaposition of the AVMSD with the DSA.
The Legislative Prism
39. Insofar as the circumstances of this case are concerned, Article 2(4) of the DSA provides the legislative prism through which the DSA's relationship with other EU legislative acts are to be considered.
40. As referred to earlier in this judgment, the travaux préparatoires of the DSA which resulted in the final version of the DSA, including, in particular, the terms of Recital (10) and the provisions of Article 2(4) of the DSA, confirm that Article 2(4) seeks to address two distinct scenarios: first, those EU legal measures which regulate other aspects of the provision of intermediary services in the internal market which are not prescribed by the DSA; and, second, those EU legal measures which specify and complement the DSA.
41. The AVMSD, and the issues raised in this judicial review application, involve this latter (or second) scenario. Indeed, in the early stages of the formation of the Code in July 2023, as part of the preparatory research, information and evidence-gathering phase, the Commission called for inputs and stated that the "Code will complement the Digital Services Act ("DSA") when this comes into full force in February 2024. The DSA will also promote greater online safety and has a wider focus than the Code, which will relate to VSPS. We want the Online Safety Code and the DSA to complement each other and provide a high level of online safety for everyone".
42. As a feature of the travaux préparatoires, the EU Council's 'General Approach' on the 'Proposal for a Regulation of the European Parliament and of the Council on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC' dated 18th November 2021, confirms, for example, this bifurcated approach which recognised separately (a) Union legal measures which addressed other aspects of the provision of intermediary services which were not provided for in the DSA, on the one hand, and (b) Union legal measures which specify and complement the DSA, on the other hand.
43. This is reflected in the amendment described at Article 1(5) of that document, i.e., the General Approach (which is similar to the final version of the Union legal acts that are now listed in Article 2(4)) and which inter alia stated the following "1(5) This Regulation is without prejudice to the rules laid down by other Union legal acts regulating other aspects of the provision of intermediary services in the internal market or specifying and complementing this Regulation, in particular, the following" and in the changes to Recital (10). [17]
44. The first two paragraphs of Recital (10) of the DSA, for example, provide that the DSA:
" should be without prejudice to other acts of Union law regulating the provision of information society services in general, regulating other aspects of the provision of intermediary services in the internal market or specifying and complementing the harmonised rules set out in this Regulation, such as Directive 2010/13/EU of the European Parliament and of the Council[ [18]] including the provisions thereof regarding video-sharing platforms, Regulations (EU) 2019/1148,[ [19]] (EU) 2019/1150,[ [20]] (EU) 2021/784[ [21]] and (EU) 2021/1232[ [22]] of the European Parliament and of the Council and Directive 2002/58/EC of the European Parliament and of the Council,[ [23]] and provisions of Union law set out in a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters and in a Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings.
Similarly, for reasons of clarity, this Regulation[ [24]] should be without prejudice to Union law on consumer protection, in particular Regulations (EU) 2017/2394[ [25]] and (EU) 2019/1020[ [26]] of the European Parliament and of the Council, Directives 2001/95/EC,[ [27]] 2005/29/EC,[ [28]] and 2013/11/EU[ [29]] of the European Parliament and of the Council, and Council Directive 93/13/EEC,[ [30]] and on the protection of personal data, in particular Regulation (EU) 2016/679 of the European Parliament and of the Council". [31]
45. The first two paragraphs in Recital (10) also reflect that part of the final text of Article 2(4) of the DSA which provides that the DSA is "without prejudice to the rules laid down by other Union legal acts regulating other aspects of the provision of intermediary services in the internal market or specifying and complementing" the DSA and by using the words "in particular" refers to a non-exhaustive list and broad ranges of examples including audiovisual services, EU law on copyright and related rights, terrorist content, privacy in electronic communications, consumer protection, etc.
46. In contrast, the third paragraph in Recital (10) reflects that part of Article 2(4) of the DSA which states that the DSA is "without prejudice to the rules laid down by other Union legal acts regulating other aspects of the provision of intermediary services in the internal market". [32]
47. Accordingly, the third paragraph in Recital (10) provides that the DSA "should also be without prejudice to Union rules on private international law, in particular rules regarding jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as Regulation (EU) No 1215/2012, and rules on the law applicable to contractual and non-contractual obligations. ... This Regulation should also be without prejudice to Union law on working conditions and Union law in the field of judicial cooperation in civil and criminal matters".
48. Generally, therefore, EU legal measures comprising private international law, co-operation in criminal matters, employment/labour law, measures dealing with tax, [33] competition law, etc., involve other aspects of the provision of intermediary services in the internal market which are not captured by the DSA.
Without Prejudice/Lex Specialis
49. As a further aspect of the travaux préparatoires, the Explanatory Memorandum (15th December 2020) entitled 'Proposal for a Regulation of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act) and amending Directive 2000/31/EC', under the sub-heading 'Consistency with other Union policies' stated that the (then) proposed Regulation:
"complements existing sector-specific legislation and does not affect the application of existing EU laws regulating certain aspects of the provision of information society services, which apply as lex specialis. By way of example, the obligations set out in Directive 2010/13/EC, as amended by Directive (EU) 2018/1808, on video-sharing platform providers ("AVSMD") as regards audiovisual content and audiovisual commercial communications will continue to apply. However, this Regulation applies to those providers to the extent that the AVSMD or other Union legal acts, such as the proposal for a Regulation on addressing the dissemination on terrorist content online, do not contain more specific provisions applicable to them. The framework established in the Regulation (EU) 2019/1150 on promoting fairness and transparency for business users of online intermediation services to ensure that business users of such services and corporate website users in relation to online search engines are granted appropriate transparency, fairness and effective redress possibilities, will apply as lex specialis. Furthermore, the rules set out in the present proposal will be complementary to the consumer protection acquis and specifically with regard to Directive (EU) 2019/2161 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU which establish specific rules to increase transparency as to certain features offered by certain information society services". [34]
50. The use of terms such as the DSA "shall not affect" the application of Directive 2000/31/EC (the e-Commerce Directive) in Article 2(3) of the DSA or that certain Union law (e.g., copyright law) "should remain unaffected" (Recital (11) of the DSA), have similar connotations to the use of the term "without prejudice".
51. Both parties accept that the AVMSD is lex specialis to the lex generalis of the DSA which is consistent with the extract from the Explanatory Memorandum just referred to.
52. The principle of lex specialis derogat legi generali has been discussed in numerous authorities. Case C‑292/15, Hörmann Reisen GmbH v Stadt Augsburg & Landkreis Augsburg, EU:C:2016:817 (26th October 2016), concerned, for example, the interpretation of Directive 2004/18 (Coordination of procedures for the award of public works contracts, public supply contracts and public service contracts), as amended, which was of general application, and Regulation 1370/2007 (Public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70) which only applied to public passenger transport services by rail and road. In a preliminary reference, the CJEU, at paragraph 47 of its judgment, held that Article 5(1) of Regulation No. 1370/2007 must be interpreted as meaning that, in a contract award procedure for public passenger transport services by bus, Article 4(7) of that Regulation remained applicable to that contract:
"In so far as both Article 4(7) of that [Regulation No 1370/2007] and Article 25 of Directive 2004/18, as amended, contain rules on subcontracting, the view must be taken that the first provision constitutes a special rule with respect to the rules laid down in the second provision, and, as a lex specialis, takes precedence over the latter".
53. The sections of the Code which are sought to be impugned in this case (sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code) implement the requirements of Article 28b of the AVMSD and do not conflict with the DSA.
54. Further, having regard, in particular, to Recitals (9), (10), Articles 2(4), Article 14 of the DSA and the provisions of Article 28b of the AVMSD, these provisions of the AVMSD complement the DSA and admit of a harmonious interpretation.
55. The nuanced relationship of the DSA with other EU law provisions is also exemplified when the position of the e-Commerce Directive and the GDPR are considered.
56. Article 2(3) states that the DSA "shall not affect[ [35]] the application of Directive 2000/31/EC" (i.e., the e-Commerce Directive), so that fundamental provisions of the e-Commerce Directive such as Article 3 and the country-of-origin principle where the Member State of establishment regulates the activities of information society service providers operating from its territory, continue to apply. Article 89(1) of the DSA deletes Articles 12 to 15 of the e-Commerce Directive with Article 89(2) of the DSA providing that "references to Article 12 to 15 of the e-Commerce Directive shall be construed as references to Articles 4,5, 6 and 8" of the DSA, respectively.
57. The DSA expressly addresses specific provisions of the GDPR.
58. As referred to in this judgment, Article 28 of the DSA deals with the online protection of minors and provides at Article 28(2) that "[p]roviders of online platform shall not present advertisements on their interface based on profiling as defined in Article 4(4) of Regulation (EU) 2016/679 [the GDPR] using personal data of the recipient of the service when they are aware with reasonable certainty that the recipient of the service is a minor."
59. Article 3(s) of the DSA defines 'recommender system' as meaning "a fully or partially automated system used by an online platform to suggest in its online interface specific information to recipients of the service or prioritise that information, including as a result of a search initiated by the recipient of the service or otherwise determining the relative order or prominence of information displayed". This covers all systems, including full or partial automated systems, whether or not they rely on algorithms, and are further provided for in Article 27 (Recommender system transparency) and Article 38 provides that in addition to the requirements set out in Article 27, providers of very large online platforms and of very large online search engines that use recommender systems shall provide at least one option for each of their recommender systems which is not based on profiling as defined in Article 4(4) of the GDPR. [36]
60. As these examples, however, do not regulate "the processing of personal data" these, and other provisions, of the DSA are complementary to the GDPR and, (as referred to earlier in this judgment, the first two paragraphs of Recital (10) of the DSA) and the e-Privacy Directive (Directive 2002/58/EC of the European Parliament and of the Council of 12th July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector) continue to apply. For example, Recital (68) of the DSA which refers to online advertising, states that "the provision of information relating to advertising is without prejudice to the application of the relevant provisions of Regulation (EU) 2016/679, in particular those regarding the right to object, automated individual decision-making, including profiling, and specifically the need to obtain consent of the data subject prior to the processing of personal data for targeted advertising" and is similarly "without prejudice to the provisions laid down in Directive 2002/58/EC in particular those regarding the storage of information in terminal equipment and the access to information stored therein. Finally, this Regulation complements the application of the Directive 2010/13/EU which imposes measures to enable users to declare audiovisual commercial communications in user-generated videos. It also complements the obligations for traders regarding the disclosure of commercial communications deriving from Directive 2005/29/EC."
Harmonisation
61. It was argued on behalf of X that the regulatory space is now occupied by the DSA and that there is a preclusion on Member States to legislate in the areas covered by the DSA because, for example, of the application of the principle of full or complete harmonisation.
62. Recital (4) of the DSA states that "in order to safeguard and improve the functioning of the internal market, a targeted set of uniform, effective and proportionate mandatory rules should be established at Union level. This Regulation provides the conditions for innovative digital services to emerge and to scale up in the internal market. The approximation of national regulatory measures at Union level concerning the requirements for providers of intermediary services is necessary to avoid and put an end to fragmentation of the internal market and to ensure legal certainty, thus reducing uncertainty for developers and fostering interoperability. By using requirements that are technology neutral, innovation should not be hampered but instead be stimulated."
63. Recital (9) of the DSA provides that "This Regulation fully harmonises the rules applicable to intermediary services in the internal market with the objective of ensuring a safe, predictable and trusted online environment, addressing the dissemination of illegal content online and the societal risks that the dissemination of disinformation or other content may generate, and within which fundamental rights enshrined in the Charter are effectively protected and innovation is facilitated. Accordingly, Member States should not adopt or maintain additional national requirements relating to the matters falling within the scope of this Regulation, unless explicitly provided for in this Regulation, since this would affect the direct and uniform application of the fully harmonised rules applicable to providers of intermediary services in accordance with the objectives of this Regulation. This should not preclude the possibility of applying other national legislation applicable to providers of intermediary services, in compliance with Union law, including Directive 2000/31/EC (the e-Commerce Directive) in particular its Article 3, where the provisions of national law pursue other legitimate public interest objectives than those pursued by this Regulation." [37]
64. The last sentence in Recital (10) provides that "However, to the extent that those Union legal acts pursue the same objectives as those laid down in this Regulation, the rules of this Regulation should apply in respect of issues that are not addressed or not fully addressed by those other legal acts as well as issues on which those other legal acts leave Member States the possibility of adopting certain measures at national level."
65. Article 1(2) of the DSA states that it lays down harmonised rules on the provision of intermediary services in the internal market and establishes (a) a framework for the conditional exemption from liability of providers of intermediary services (for example, Recital (16) of the DSA); (b) rules on specific due diligence obligations tailored to certain specific categories of providers of intermediary services (for example, Recital (110) of the DSA); (c) rules on the implementation and enforcement of the DSA, including as regards the cooperation of and coordination between the competent authorities.
66. Accordingly, the DSA establishes a harmonised and horizontal regulatory framework applicable to online intermediary services which requires providers of online platforms to take appropriate and proportionate measures to protect minors and inter alia requires providers of very large online platforms ("VLOPs") to make assessments and to diligently identify, analyse and assess systemic risk.
67. These are shared and complementary objectives with the provisions of the Code (promulgated under the 2009 Act and the AVMSD).
68. Specifically, the Code seeks 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.
69. The Code's adoption of a methodology which focuses on the restrictions and transparency requirements in relation to terms and conditions is complementary to the provisions of Article 14 of the DSA and is contemplated by Article 2(4) of the DSA as an example of a Union law which complements and is without prejudice to the DSA.
70. The reference to specify and complement in Article 2(4) of the DSA, read in light of Recital (10) of the DSA, incorporates the concept that other regulatory provisions of EU law can exist together with the DSA (unless it provides otherwise) with shared objectives.
71. The provisions of the Code sought to be impugned directs a focus on how the AVMSD addresses the provision of terms and conditions to inter alia ensure that the 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.
72. In the judgment of 29th February 2024, European Commission v Ireland, C-679/22 EU:C:2024:17, paragraph 38, the CJEU stated that the purpose of the rules in the AVMSD were to specify the rights of providers of those services, to extend the scope of the AVMSD to video-sharing platforms, to establish additional criteria to determine the jurisdiction of Member States and to provide for a mechanism for gathering up-to-date information regarding the jurisdiction of Member States over media service providers in addition to creating a safer, fairer and more diverse audiovisual landscape, in the light of technological progress, and inter alia observed that its rules:
"reinforce the protection of viewers, with particular regard to the safety of those most vulnerable, such as minors, by introducing rules to protect them against content which might be harmful for their development (including in audiovisual commercial communications and video-sharing platforms), and to prohibit content that incites violence or hatred".
Background to the Code
73. The contents of the Code give effect to Article 28b (1), (2) and (3) of the AVMSD and sections 139K (and other provisions) of the 2009 Act.
74. As described therein, the Code is divided into two parts: Part A and Part B.
75. Part A of the Code sets out its legislative and regulatory context and provides for the general obligations of video‑sharing platform service providers pursuant to section 139K of the 2009 Act and Article 28b the AVMSD which, as stated, includes the measures that video‑sharing platform service providers shall take, as appropriate, to protect the general public and children.
76. Part B of the Code makes provision for more specific obligations of video‑sharing platform service providers and sets out the appropriate measures that video‑sharing platform service providers shall take to provide the protections for children and the general public required by Article 28b(1)(a),(b) and(c) of the AVMSD and to comply with the requirements of Article 9(1) of the AVMSD.
77. The purpose of the Code was to give effect to the obligation of the Commission under Section 139K(3) of the 2009 Act to use its powers to make online safety codes with a view to ensuring that video‑sharing platform service providers inter alia take measures that are appropriate to provide the protections set out in Article 28b(1)(a), (b) and (c), Article 28b(2) and Article 28b(3) of the AVMSD including appropriate measures to 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 to ensure that their terms and conditions require commercial communications to be identifiable as such and prohibit certain types of communications which are harmful.
78. Section 6 of the Code provides that it may be accompanied by statutory guidance issued by the Commission pursuant to section 139Z of the 2009 Act which has been done.
79. There is no challenge to Part A of the Code which came into effect in November 2024.
80. This application for judicial review focuses on Part B of the Code and the specific obligations set out in relation to video-sharing platform service providers and the measures video-sharing platform service providers are required to take to provide the protections for children and the general public required inter alia by Article 28b(1)(a), (b) and (c) and Article 9(1) of the AVMSD.
81. This challenge is concerned with those sections of the Code made and adopted by the Commission which addresses the inclusion in the terms and conditions of services offered by video-sharing platform providers of measures which 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 includes a process of suspension, in the event of an infringement of those terms and conditions, and a requirement on providers of video-sharing platforms to ensure that their terms and conditions require commercial communications to be identifiable as such and prohibit certain types of communications which are harmful.
82. As stated earlier, it is contended on behalf of X that the Code impermissibly goes further than the AVMSD allows and covers areas that are within the scope of the DSA and, in so doing, the Code conflicts with and undermines the provisions of the DSA. It is further submitted that as the Code is not required by the AVMSD, it inexorably follows that the Commission has exceeded its jurisdiction in introducing those provisions of the Code which X now seeks to impugn.
83. In addition to examining the various EU and national measures, a central theme in this case centres on the relationship between Article 28b of the AVMSD and the DSA and various concepts such as the full harmonisation principle in the DSA.
84. Whilst there is a degree of complexity in the layers of intersecting legislative architecture and EU measures which occupy the digital space, I do not consider, for the following reasons, that the issues raised in this challenge are such that it is necessary to make a reference to the Court of Justice pursuant to Article 267 TFEU.
85. On behalf of X, for example, it is submitted that its challenge in this application for judicial review, turns on the discrete question as to whether the provisions of the Code, which are sought to be impugned, are required by the AVMSD and not whether they are desirable or are a good idea.
86. It is argued that this application for judicial review is not, for example, a merits or rationality challenge and that there is no challenge to the proportionality of the measures so the question of evidence does not arise when the sole question is whether or not the Commission has exceeded its jurisdiction.
87. It is submitted on behalf of the Applicant, for example, that Article 12.1 of the Code goes too far in allowing for a total ban or prohibition of content (i.e., content control) when it is contended that Article 28b of the AVMSD only allow for access control measures (for example, by the use of personal identification numbers (PIN codes), filtering systems, labelling, parental supervision, etc.). On behalf of X, it is, therefore, submitted that sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code are invalid and ultra vires the Commission's powers under chapter 3 of Part 8A of the 2009 Act and/or contrary to EU law.
88. In considering these matters, I agree that the scope of this judicial review challenge has a relatively narrow focus: first, it is contended that sections 12.1 and 12.6 to 12.9 and 13.6 to 13.9 [38] of the Code go beyond what is required to transpose Article 28b of the AVMSD; second, it is argued that because the DSA is a provision of maximum or full harmonisation this precludes [39] the adoption of national measures in its field of operation and to do so is, therefore, impermissible in circumstances where it is argued that those sections of the Code (which it is sought to impugn) regulate an area which is covered by the DSA; third, in consequence, it is submitted that not only does the Code seek to regulate an area which is within the purview of the DSA, it creates conflicts with the provisions of the DSA and this further undermines the principle of full harmonisation.
89. Bearing that in mind, I now address the Code and its related obligations, the juxtaposition of the DSA with the complementary provisions of the AVMSD and the measures contained in the terms and conditions of those provisions of the Code which are sought to be impugned in this judicial review challenge.
The Code: 'terms and conditions' & related obligations
90. The heading of section 12 of the Code refers to "Specific Obligations of Video-sharing Platform Services- Content" with a sub-heading styled "Terms and Conditions and Related Obligations - Content."
91. Immediately after this heading and sub-heading, section 12.1 of the Code provides as follows:
"(12.1.) A video-sharing platform service provider shall include, in the terms and conditions and related obligations of the service, restrictions that preclude users from:
• uploading or sharing restricted video content as defined in
this Code, and
• uploading or sharing restricted indissociable user-generated
content as defined in this Code."
92. Sections/paragraphs 12.2 to 12.5 are not sought to be impugned by X in this application for judicial review. They provide as follows:
"(12.2.) A video-sharing platform service provider shall include, in the terms and conditions and related obligations of the service, either:
(a) a restriction that precludes the uploading or sharing of adult-only video content as defined in this Code; or
(b) a restriction that a user who uploads adult-only video content as defined in this Code must rate the content as not suitable for children using the mechanism developed by the video-sharing platform service provider further to Section 12.11.
(12.3.) A video-sharing platform service in respect of which the principal purpose of the service, or a dissociable section thereof, is devoted to providing programmes, user generated videos or both which consist of adult-only video content as defined in this Code, shall include, in the terms and conditions and related obligations of the service, a requirement precluding the use by children of the service or the dissociable section thereof, as the case may be, and an obligation that adult users ensure that their accounts on the service are not used by children.
(12.4.) A video-sharing platform service provider shall include in the terms and conditions and related obligations of the service a requirement that users comply with and do not attempt to circumvent age assurance and content rating obligations set out in Sections 12.10 and 12.11 of this Code.
(12.5.) A video-sharing platform service provider shall include in the terms and conditions and related obligations of the service a requirement that users comply with and do not attempt to circumvent the terms and conditions and related obligations set out under Sections 12.1-12.4 of the Code."
93. Under the subheading "Suspension of Accounts", sections 12.6 to 12.9, which are sought to be impugned in these proceedings, are set out, with section 12.6, for example, making reference to sections 12.1 to 12.4 of the Code (as set out above).
94. Sections 12.6 to 12.9 of the Code provide for the following matters:
"Suspension of Accounts
(12.6.) A video-sharing platform service provider shall apply the provisions of their terms and conditions and related obligations that give effect to this section of the Code and, where appropriate and after having issued a prior warning, suspend for a reasonable period of time the provision of their services to users of the service that they have determined to have frequently infringed terms and conditions and related obligations of the service set out in sections 12.1-12.4.
(12.7.) When deciding on suspension, a video-sharing platform service provider shall assess, on a case-by-case basis and in a timely, diligent and objective manner, whether the user infringed the terms and conditions and related obligations of the service as set out in sections 12.1-12.4, taking into account all relevant facts and circumstances apparent from the information available to the provider of video-sharing platform services.
(12.8.) When deciding on suspension, a video-sharing platform service provider shall have due regard to the rights and legitimate interests of all parties involved, including the fundamental rights of the recipients of the service, such as the freedom of expression, freedom and pluralism of the media, and other fundamental rights and freedoms as enshrined in the Charter of Fundamental Rights of the European Union.
(12.9.) Sections 12.6, 12.7 and 12.8 shall apply only insofar as the consequences for the user are not covered by measures adopted pursuant to Articles 23 and 35(1)(b) of Regulation (EU) 2022/2065 (Digital Services Act)."
95. Section 12.10 addresses 'Age Assurance and Adult-Only Video Content', section 12.11 provides for 'Content Rating' and section 12.12 of the Code provides for 'Civic Discourse on Matters of Public Interest.' These provisions of the Code are not sought to be challenged in this application for judicial review and provide as follows:
"Age Assurance and Adult-Only Video Content
(12.10.)A video-sharing platform service provider whose terms and conditions do not preclude the uploading or sharing of adult-only video content as defined in this Code shall implement effective age assurance measures as defined in this Code to ensure that adult-only video content cannot normally be seen by children. An age assurance measure based solely on self-declaration of age by users of the service shall not be an effective measure for the purposes of this section.
Content Rating
(12.11.) A video-sharing platform service provider whose terms and conditions do not preclude the uploading or sharing of adult-only video content as defined in this Code shall establish an easy-to-use content rating system allowing users who upload user-generated videos to rate such content. The content rating mechanism shall enable users to rate the content as not suitable for children because the video content is adult-only as defined in this Code and to tag such video content accordingly to ensure transparency for users viewing this content.
Civic Discourse on Matters of Public Interest
(12.12.) Section 12 of this Code shall not be interpreted as precluding the uploading or sharing of video content that contains violent or distressing imagery where such content has been uploaded or shared as a contribution to civic discourse on a matter of public interest, provided such content cannot ordinarily be seen by children and this is achieved using measures appropriate to achieve this outcome, such as content rating, age assurance or parental controls."
96. Section 13 of the Code is under the heading "Obligations of Video-sharing Platform Service Providers - Audiovisual Commercial Communications".
97. Sections 13.1 to 13.5 are under the following sub-heading: "Terms and Conditions and Related Obligations–Audiovisual Commercial Communications, Audiovisual commercial communications that are not marketed, sold or arranged by the video-sharing platform services" and address the following matters:
"(13.1.) A video-sharing platform service provider shall, in the case of audiovisual commercial communications not marketed, sold, or arranged by them, include and apply in the terms and conditions and related obligations of the service restrictions that preclude users from:
• uploading and sharing audiovisual commercial communications harmful to the general public as defined in this Code,
• uploading and sharing audiovisual commercial communications harmful to children as defined in this Code,
• uploading and sharing restricted audiovisual commercial communications as defined in this Code.
(13.2.) A video-sharing platform service provider shall, in the case of audiovisual commercial communications not marketed, sold, or arranged by them, include and apply in the terms and conditions and related obligations of the service a requirement to ensure that audiovisual commercial communications as defined in this Code are readily recognisable as such.
(13.3.) A video-sharing platform service provider shall, in the case of audiovisual commercial communications not marketed, sold, or arranged by them, include and apply in the terms and conditions and related obligations of the service a restriction precluding surreptitious audiovisual commercial communications as defined in this Code and the use in audiovisual commercial communications of subliminal techniques as defined in this Code.
(13.4.) A video-sharing platform service provider shall include in the terms and conditions and related obligations of the service an obligation for users to declare when they are uploading user-generated videos that contain audiovisual commercial communications as far as users know or can be reasonably expected to know.
(13.5.) A video-sharing platform service provider shall include in the terms and conditions and related obligations of the service a requirement that users comply with and do not attempt to circumvent the terms and conditions and related obligations set out under Sections 13.1-13.4 of the Code."
98. Sections 13.6 to 13.9 of the Code, which are sought to be challenged by X, address the "Suspension of Accounts" and these paragraphs provide for the following matters:
"Suspension of Accounts
(13.6.) A video-sharing platform service provider shall apply the provisions of their terms and conditions and related obligations that give effect to this section of the Code and, where appropriate and after having issued a prior warning, suspend for a reasonable period of time the provision of their services to users of the service that they have determined to have frequently infringed terms and conditions and related obligations of the service set out in sections 13.1-13.4.
(13.7.) When deciding on suspension, a video-sharing platform service provider shall assess, on a case-by-case basis and in a timely, diligent and objective manner, whether the user infringed the terms and conditions and related obligations of the service as set out in sections 13.1-13.4, taking into account all relevant facts and circumstances apparent from the information available to the provider of video-sharing platform services.
(13.8.) When deciding on suspension, a video-sharing platform service provider shall have due regard to the rights and legitimate interests of all parties involved, including the fundamental rights of the recipients of the service, such as the freedom of expression, freedom and pluralism of the media, and other fundamental rights and freedoms as enshrined in the Charter of Fundamental Rights of the European Union.
(13.9.) Sections 13.6, 13.7 and 13.8 shall apply only insofar as the consequences for the user are not covered by measures adopted pursuant to Articles 23 and 35(1)(b) of Regulation (EU) 2022/2065 (Digital Services Act)."
99. Sections 13.10 to 13.12 of the Code deal with the following matters under the sub-heading 'Audiovisual commercial communications that are marketed, sold or arranged by the video-sharing platform service':
"Audiovisual commercial communications that are marketed, sold or arranged by the video-sharing platform service
(13.10.) A video sharing platform service provider shall not market, sell or arrange:
• audiovisual commercial communications harmful to the general public as defined in this Code,
• audiovisual commercial communications harmful to children as defined in this Code, or
• restricted audiovisual commercial communications as defined in this Code.
(13.11.) A video-sharing platform service provider shall, in the case of audiovisual commercial communications that are marketed, sold or arranged by that video-sharing platform provider, ensure that audiovisual commercial communications are readily recognisable as such.
(13.12.) A video-sharing platform service provider shall not market, sell or arrange surreptitious audiovisual commercial communications as defined in this Code or include in audiovisual commercial communications the use of subliminal techniques as defined in this Code."
100. Section 13.13 of the Code deals with 'Alcohol' as follows:
"Alcohol
(13.13.) A video-sharing platform service provider shall not be restricted from marketing, selling or arranging, and (in the case of audiovisual commercial communications not marketed, sold, or arranged by them) shall not be required to preclude audiovisual commercial communications for alcohol provided that such content cannot normally be seen by children and this is achieved using measures appropriate to achieve this outcomes, such as content rating, age assurance and parental controls."
101. Sections 13.14 and 13.15 of the Code address a "Declaration of audiovisual commercial communications for user-generated video", as follows:
"Declaration of audiovisual commercial communications for user-generated video
(13.14.) A video-sharing platform service provider shall put in place a functionality for users who upload user-generated videos to declare whether such video content contains audiovisual commercial communications as far as the users know or can be reasonably expected to know.
(13.15.) Where a user has declared that a user-generated video contains audiovisual commercial communications or where the video-sharing platform service provider has knowledge of that fact, the video-sharing platform service provider shall ensure users of the service are clearly informed of the declaration or fact that the user-generated video contains audiovisual commercial communications in a manner that is transparent for users of the service."
102. The definition section in Part B of the Code includes "restricted video content" [40] as meaning (a) video content by which a person bullies or humiliates another person, (b) video content by which a person promotes or encourages behaviour that characterises a feeding or eating disorder, (c) video content by which a person promotes or encourages self-harm or suicide, (to include video content which encourages behaviour prejudicial to the health or safety of children, including dangerous challenges) and (d) video content by which a person makes available knowledge of methods of self-harm, or suicide (to include video content which encourages behaviour prejudicial to the health or safety of children, including dangerous challenges) and added that where in the case of points (a)-(d) such content meets the risk test as defined in this Code. [41]
Harmful online content & the risk test
103. Whilst the Applicant places emphasis on a distinction between content which may be harmful to minors but is not illegal and that which is illegal, and the matter is canvassed at length in respective Affidavits relied upon by the parties, the central point made on behalf of X is that the distinction drawn between material which may impair the physical, mental or moral development of minors which may be harmful is more properly addressed by access control measures compared to material which is illegal, such as procuring a terrorist offence or hate speech, etc., which is more appropriately dealt with by content control measures and is, therefore, prohibited or banned.
104. The "risk test" is defined in the Code as meaning content that gives rise to (a) any risk to a person's life, or (b) a risk of significant harm to a person's physical or mental health, where the harm is reasonably foreseeable.
105. Section 139A of the of the 2009 Act states that online content is 'harmful online content' if it is one of the following two kinds: (a) content that falls within one of the offence-specific categories of online content defined in section 139A(2) [42]; (b) content that (i) falls within one of the other categories of online content defined in section 139A(3), and (ii) meets the risk test defined in section 139A(4).
106. Section 139A(4) of the 2009 Act provides that online content meets the risk test for the purposes of section (1)(b)(ii) of the 2009 Act if it gives rise to (a) any risk to a person's life, or (b) a risk of significant harm to a person's physical or mental health, where the harm is reasonably foreseeable.
107. Article 1(1) of the AVMSD inter alia defines "audiovisual media service" as inter alia including "providing programmes, under the editorial responsibility of a media service provider, to the general public, in order to inform, entertain or educate" [43] and "video‑sharing platform service" is defined as "providing programmes, user‑generated videos, or both, to the general public, for which the video‑sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate." [44]
108. Articles 28a and 28b of the AVMSD set out the provisions applicable to a video-sharing platform service which is defined in the AVMSD.
109. The dividing line between an audiovisual media service and a video‑sharing platform service is, therefore, the question of editorial control over content.
110. Recital (81) of the DSA refers to "when assessing risks to the rights of the child, providers of very large online platforms and of very large online search engines should consider for example how easy it is for minors to understand the design and functioning of the service, as well as how minors can be exposed through their service to content that may impair minors' health, physical, mental and moral development. Such risks may arise, for example, in relation to the design of online interfaces which intentionally or unintentionally exploit the weaknesses and inexperience of minors or which may cause addictive behaviour."
111. Recital (83) of the DSA refers to a "fourth category of risks stems from similar concerns relating to the design, functioning or use, including through manipulation, of very large online platforms and of very large online search engines with an actual or foreseeable negative effect on the protection of public health, minors and serious negative consequences to a person's physical and mental well-being, or on gender-based violence. Such risks may also stem from coordinated disinformation campaigns related to public health, or from online interface design that may stimulate behavioural addictions of recipients of the service."
112. Recital (89) of the DSA refers to "Providers of very large online platforms and of very large online search engines should take into account the best interests of minors in taking measures such as adapting the design of their service and their online interface, especially when their services are aimed at minors or predominantly used by them. They should ensure that their services are organised in a way that allows minors to access easily mechanisms provided for in this Regulation, where applicable, including notice and action and complaint mechanisms. They should also take measures to protect minors from content that may impair their physical, mental or moral development and provide tools that enable conditional access to such information. In selecting the appropriate mitigation measures, providers can consider, where appropriate, industry best practices, including as established through self-regulatory co-operation, such as codes of conduct, and should take into account the guidelines from the Commission."
113. To recap, the challenge in this case is to sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code which together seeks 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 and provides for a process which leads to the suspension of services where there is an infringement.
114. Insofar as the DSA is concerned, Article 14 is the primary provision which addresses terms and conditions.
115. Recital (45) informs Article 14 of the DSA and states the following:
"Whilst the freedom of contract of providers of intermediary services should in principle be respected, it is appropriate to set certain rules on the content, application and enforcement of the terms and conditions of those providers in the interests of transparency, the protection of recipients of the service and the avoidance of unfair or arbitrary outcomes. Providers of the intermediary services should clearly indicate and maintain up-to-date in their terms and conditions the information as to the grounds on the basis of which they may restrict the provision of their services. In particular, they should include information on any policies, procedures, measures and tools used for the purpose of content moderation, including algorithmic decision-making and human review, as well as the rules of procedure of their internal complaint-handling system. They should also provide easily accessible information on the right to terminate the use of the service. Providers of intermediary services may use graphical elements in their terms of service, such as icons or images, to illustrate the main elements of the information requirements set out in this Regulation. Providers should inform recipients of their service through appropriate means of significant changes made to terms and conditions, for instance when they modify the rules on information that is permitted on their service, or other such changes which could directly impact the ability of the recipients to make use of the service."
116. Article 14 of the DSA provides for "Terms and Conditions" as follows:
"(1) Providers of intermediary services shall include information on any restrictions that they impose in relation to the use of their service in respect of information provided by the recipients of the service, in their terms and conditions. That information shall include information on any policies, procedures, measures and tools used for the purpose of content moderation, including algorithmic decision-making and human review, as well as the rules of procedure of their internal complaint handling system. It shall be set out in clear, plain, intelligible, user-friendly and unambiguous language, and shall be publicly available in an easily accessible and machine-readable format.
(2) Providers of intermediary services shall inform the recipients of the service of any significant change to the terms and conditions.
(3) Where an intermediary service is primarily directed at minors or is predominantly used by them, the provider of that intermediary service shall explain the conditions for, and any restrictions on, the use of the service in a way that minors can understand.
(4) Providers of intermediary services shall act in a diligent, objective and proportionate manner in applying and enforcing the restrictions referred to in paragraph 1, with due regard to the rights and legitimate interests of all parties involved, including the fundamental rights of the recipients of the service, such as the freedom of expression, freedom and pluralism of the media, and other fundamental rights and freedoms as enshrined in the Charter.
(5) Providers of very large online platforms and of very large online search engines shall provide recipients of services with a concise, easily-accessible and machine-readable summary of the terms and conditions, including the available remedies and redress mechanisms, in clear and unambiguous language.
(6) Very large online platforms and very large online search engines within the meaning of Article 33 shall publish their terms and conditions in the official languages of all the Member States in which they offer their services."
The juxtaposition of the DSA with the complementary provisions of the AVMSD
117. In summary, on behalf of X, it is submitted that Article 14 is a provision in the DSA which expressly regulates the terms and conditions of intermediary services and that the impugned provisions of the Code create a conflict with that provision. For its part, on behalf of the Commission, it is submitted that Article 14 of the DSA regulates the information to be given about restrictions that are imposed where the focus is on communicating the terms and conditions and does not in fact regulate the terms and conditions per se.
118. The phrase "terms and conditions" in Article 14 is an aspect of the due diligence and transparency obligations arising throughout the DSA (see also Articles 24(3) of the DSA relating to transparency reporting obligations for providers of online platforms and Article 27 of the DSA and the recommender system transparency). The transparency requirements and restrictions prescribed in Article 14 therefore contemplates the second category of Union legal measures which specify and complement the DSA referred to in Article 2(4) informed by Recital (10) of the DSA. The list of complementary Union acts in Article 2(4) is indicative and not exhaustive.
119. Accordingly, Article 14 is a provision of the DSA which is "without prejudice to the rules laid down by other Union legal acts ... specifying and complementing this Regulation, in particular, the following: ... (a) Directive 2010/13/EU." In a similar vein, Recital (10) inter alia states that the DSA is "without prejudice to other acts of Union law ... specifying and complementing the harmonised rules set out in this Regulation, such as Directive 2010/13/EU ... including the provisions thereof regarding video-sharing platforms".
120. The last sentence of Recital (10) stated that "However, to the extent that those Union legal acts pursue the same objectives as those laid down in this Regulation, the rules of this Regulation should apply in respect of issues that are not addressed or not fully addressed by those other legal acts as well as issues on which those other legal acts leave Member States the possibility of adopting certain measures at national level."
121. Article 3(u) of the DSA defines 'terms and conditions' as meaning "all clauses, irrespective of their name or form, which govern the contractual relationship between the provider of intermediary services and the recipients of the service".
122. As set out above, the AVMSD and the 2009 Act place obligations on Ireland to ensure that providers of video-sharing platforms include and apply "in the terms and conditions of the video-sharing platform services the requirements referred to in paragraph 28b(1)" which, in summary, include measures to 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.
123. Article 28b of the AVMSD is inter alia transposed in Ireland by section 139K(2)(c) of the 2009 Act (as amended by the Online Safety and Media Regulation Act 2022) which provides that "[a]n online safety code may make provision with a view to ensuring that service providers take any other measures that are appropriate to provide the protections set out in Article 28b(1)(a), (b) and (c) of the Directive." The Commission has addressed this obligation by making and adopting the Code and in particular, insofar as terms and conditions are concerned in the provisions of sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code.
124. Specifically, this application for judicial review relates to the requirement in Article 28b of the AVMSD (as transposed) that Ireland take appropriate measures including and applying in the terms and conditions of the video-sharing platform services the requirements referred to in Article 28b(1) which inter alia refers to the taking of appropriate measures to protect: (a) minors from programmes, user-generated videos and audiovisual commercial communications which may impair their physical, mental or moral development in accordance with Article 6a(1) of the AVMSD; (b) the general public from programmes, user-generated videos and audiovisual commercial communications containing incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter; (c) the general public from programmes, user-generated videos and audiovisual commercial communications containing content the dissemination of which constitutes an activity which is a criminal offence under Union law, namely public provocation to commit a terrorist offence as set out in Article 5 of Directive (EU) 2017/541, offences concerning child pornography as set out in Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council and offences concerning racism and xenophobia as set out in Article 1 of Framework Decision 2008/913/JHA.
125. Through the mechanism of terms and conditions, the provisions of the Code seek to ensure that certain material should not be uploaded, and where it is uploaded (i.e., where the Code is infringed) there is a mechanism to suspend and prescribed steps to be taken in sections 12.6 to 12.9 of the Code.
126. Sections 12.6 to 12.9 and 13.6 to 13.9 of the Code address the application of the 'terms and conditions' and provide for the suspension of accounts. These provisions are interlinked in clear and express terms and address situations where there is an infringement of the 'terms and conditions' set out respectively in sections 12.1 to 12.4 and 13.1 to 13.4 of the Code.
127. Taking the example of section 12 of the Code, section 12.6 contemplates the issuing of prior warnings and suspension for a reasonable period of time where there has been frequent infringement. Section 12.7 requires a case‑by‑case assessment in a timely, diligent and objective manner and in assessing whether or not there has, in fact, been an infringement, taking account all the relevant facts and circumstances. Section 12.8 then requires that due regard be had to the rights and legitimate interests of the parties involved (and complementing Article 14.4 of the DSA) this includes "the fundamental rights of the recipients of the service, such as the freedom of expression, freedom and pluralism of the media, and other fundamental rights and freedoms as enshrined in the Charter."
128. The various asserted conflicts do not arise because the Code which was made pursuant to the AVMSD and the 2009 Act complements the DSA.
129. There is, in my view, no conflict between the provisions of the Code (made under the provisions of the AVMSD and the 2009 Act) and Article 14 of the DSA which, as just mentioned, at Article 14(4) refers to providers acting in a "diligent, objective and proportionate manner in applying and enforcing the restrictions" in Article 14(1) "with due regard to the rights and legitimate interests of all parties involved, including the fundamental rights of the recipients of the service, such as the freedom of expression, freedom and pluralism of the media, and other fundamental rights and freedoms as enshrined in the Charter", implying an indirect horizontal application of fundamental rights in the relationship between providers of intermediary services and those who receive them. [45]
130. Similarly, there is not a conflict between the provisions of the Code and Articles 23 and 35(1)(b) of the DSA.
131. Section 12.9 of the Code provides that sections 12.6, 12.7 and 12.8 shall apply only insofar as the consequences for the user are not covered by measures adopted pursuant to Articles 23 and 35(1)(b) of the DSA. Article 23 of the DSA addresses two types of misuse of the services of providers of online platforms: first, Article 23(1) of the DSA deals with the circumstances of the frequent provision of manifestly illegal content; second, Article 23(2) of the DSA addresses the frequent submission of manifestly unfounded notices of complaint. In regulating manifestly illegal content, Article 23 is informed by Recitals (63) and (64) of the DSA. Recital (64), for example, refers to temporary suspension which is "without prejudice to the freedom by providers of online platforms to determine their terms and conditions and establish stricter measures in the case of manifestly illegal content" and adds that the rules of the DSA on misuse "should not prevent providers of online platforms from taking other measures to address the provision of illegal content."
132. Article 35 of the DSA deals with mitigation of risks. Article 35(1)(b) states that "[p]roviders of very large online platforms and of very large online search engines shall put in place reasonable, proportionate and effective mitigation measures, tailored to the specific systemic risks identified pursuant to Article 34, with particular consideration to the impacts of such measures on fundamental rights. Such measures may include, where applicable ... (b) adapting their terms and conditions and their enforcement".
133. The online protection of minors in Article 28 of the DSA (informed by Recitals 46 and 71) is a recognition across a number of provisions of EU law of the particular protection for children and other potentially vulnerable persons, including in Article 3(3) of the TEU that the EU shall inter alia "combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child" and similar provisions in Article 24 of the Charter of Fundamental Rights of the EU. The Code, which requires appropriate and proportionate measures in service provider's terms and conditions to ensure protection for minors, is likewise consistent with such provisions.
134. In the context of Recital (38) and Article 6(1) of the GDPR, for example, the CJEU observed in its judgment of 4th July, 2023, Meta Platforms Inc. (formerly Facebook Inc.), Meta Platforms Ireland Ltd, (formerly Facebook Ireland Ltd), Facebook Deutschland GmbH v Bundeskartellamt, (intervener: Verbraucherzentrale Bundesverband eV), Case C-252/21, EU:C:2023:537, at paragraph 111, that "children merit specific protection with regard to the processing of their personal data because they may be less aware of the risks, consequences and safeguards concerned and of their rights related to such processing of personal data. Thus, such specific protection should, in particular, apply to the processing of personal data of children for the purposes of marketing or creating personality or user profiles or offering services aimed directly at children".
135. In the context of its approach to terms and conditions and the restrictions which apply, on a without prejudice basis, to the providers of intermediary services from other complementary Union acts, the DSA has adopted a similar approach to the Terrorist Content Online Regulation [46] and the Platform-to-Business Regulation and Article 14 of the DSA. The Commission is the competent authority for the purposes of the AVMSD, Article 49 of the DSA [47] and Article 12(1)(d) of the Terrorist Content Online Regulation.
136. Taking the latter EU legal measure, for example, Article 3(1)(a) to (e) of Regulation (EU) 2019/1150 addresses the issue of "Terms and Conditions" as follows:
"(1)Providers of online intermediation services shall ensure that their terms and conditions:
(a) are drafted in plain and intelligible language;
(b) are easily available to business users at all stages of their commercial relationship with the provider of online intermediation services, including in the pre-contractual stage;
(c) set out the grounds for decisions to suspend or terminate or impose any other kind of restriction upon, in whole or in part, the provision of their online intermediation services to business users;
(d) include information on any additional distribution channels and potential affiliate programmes through which providers of online intermediation services might market goods and services offered by business users;
(e) include general information regarding the effects of the terms and conditions on the ownership and control of intellectual property rights of business users."
137. Article 34 of the DSA (informed by Recitals (79) to (85)) addresses 'risk assessment' and requires very large online platforms ("VLOPs") and very large online search engines ("VLOSEs") to conduct an annual risk assessment and Article 35 of the DSA (referred to above) requires such providers to subsequently to have prepared risk mitigation measures to address such risks. The risk assessment prescribed in Article 34 is inter alia stated to be "specific to their services" and "proportionate to the systemic risks", taking into consideration their severity and probability including the matters listed at Article 34(1)(a) to (d) of the DSA.
138. Rather than being in conflict with the Code, these provisions suggest that it would be included in any such assessment with, for example, Article 34(2)(c) of the DSA inter alia providing that "when conducting risk assessments, providers of very large online platforms and of very large online search engines shall take into account, in particular, whether and how the following factors influence any of the systemic risks referred to in paragraph 1 ... (c) ... the applicable terms and conditions and their enforcement", and the second paragraph of Article 34(2) stating that "[t]he assessments shall also analyse whether and how the risks pursuant to paragraph 1 are influenced by intentional manipulation of their service, including by inauthentic use or automated exploitation of the service, as well as the amplification and potentially rapid and wide dissemination of illegal content and of information that is incompatible with their terms and conditions."
The 'measures' in the terms and conditions
139. On behalf of X, it is submitted that the only measures which can be imposed under Article 28b(1)(a) and Article 28b(3) of the AVMSD are access control measures and that the Commission in promulgating sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code have gone beyond Article 28b of the AVMSD and have impermissibly introduced content control measures and that these conflict with the provisions of the DSA, including, for example, Article 14 of the DSA (in addition to other provisions of the DSA referred to above).
140. Access control measures do not prohibit the broadcasting of programmes but, rather, require measures to be taken so that minors do not see certain programmes, for example, by the use of personal identification numbers (PIN codes), filtering systems (such as watersheds) and labelling.
141. In this case the methodology employed by the Commission was to adopt a Code referable to terms and conditions on providers of video-sharing platforms having regard to Article 28b, and in particular Article 28b(3) of the AVMSD. The terms and conditions prescribed in sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code are not, in my view, limited to access control measures in the manner argued for, on behalf of X.
142. The DSA (in inter alia Article 2(4) and Recital (10)), for example, acknowledges that its provisions which prescribe transparency and general restrictions to the terms and conditions of all providers of intermediary services (by, for example, Article 14) are without prejudice and complementary to the similar provisions of Article 28b of the AVMSD which, in this case, obliges Ireland, as a Member State of the EU, to ensure that video-sharing platform providers include measures in their terms and conditions to protect minors from content which may impair their physical, mental or moral development, measures which protect the general public from content containing incitement to violence or hatred and further, that the terms and conditions require commercial communications to be readily recognizable as such and prohibit certain forms of harmful communications.
143. The Commission's primary submission is that Sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code are within the scope of Articles 28b(1), (2) and (3) of the AVMSD.
144. Article 28b(1)(a) of the AVMSD provides that "[w]ithout prejudice to Articles 12 to 15 of Directive 2000/31/EC,[ [48]] Member States shall ensure that video-sharing platform providers under their jurisdiction take appropriate measures to protect...[(a)]... minors from programmes, user-generated videos and audiovisual commercial communications which may impair their physical, mental or moral development in accordance with Article 6a(1) [of the AVMSD]."
145. Article 28b(1)(b) of the AVMSD provides that "Without prejudice to Articles 12 to 15 of Directive 2000/31/EC, Member States shall ensure that video-sharing platform providers under their jurisdiction take appropriate measures to protect ... [(b)] ... the general public from programmes, user-generated videos and audiovisual commercial communications containing incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter."
146. Article 28b(1)(c) of the AVMSD provides that "Without prejudice to Articles 12 to 15 of Directive 2000/31/EC, Member States shall ensure that video-sharing platform providers under their jurisdiction take appropriate measures to protect...[(c)]... the general public from programmes, user-generated videos and audiovisual commercial communications containing content the dissemination of which constitutes an activity which is a criminal offence under Union law, namely public provocation to commit a terrorist offence as set out in Article 5 of Directive (EU) 2017/541, offences concerning child pornography as set out in Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council[ [49]] and offences concerning racism and xenophobia as set out in Article 1 of Framework Decision 2008/913/JHA."
147. Article 28b(2) of the AVMSD refers to the requirement for Member States to ensure that video-sharing platform providers under their jurisdiction comply with the requirements set out in Article 9(1) of the AVMSD with respect to audiovisual commercial communications that are marketed, sold or arranged by those video-sharing platform providers i.e. the responsibility is on the VSP provider. Article 9(1) of the AVMSD refers inter alia to a number of general obligations including (i) the identification principle which seeks to ensure that viewers are clear as to what they are watching (ii) the protection of human dignity and health (Article 9(1)(c)); (iii) the protection of minors (Article 9(1)(g)); (iv) ensuring editorial independence and responsibility.
148. Whilst it is accepted on behalf of the Applicant that the requirements imposed by Article 28b of the AVMSD must be reflected in the terms and conditions of the video‑sharing platform service, it is submitted, that the measures in those terms and conditions can only be access control measures and not content control measures and in support of this argument, it refers to the following provisions: the reference in Article 28b(1)(a) to "which may impair their physical, mental or moral development in accordance with Article 6a(1)", the reference in Article 28b(3) "[f]or the purposes of the protection of minors, provided for in point (a) of paragraph 1 of this Article, the most harmful content shall be subject to the strictest access control measures" [50], and the provisions of Article 6a of the AVMSD.
149. Further, the Applicant submits that the reference to the following provisions - in Article 28b(3)(f) to the appropriate measures including "establishing and operating age verification systems for users of video‑sharing platforms with respect to content which may impair the physical, mental or moral development of minors", Article 28b(3)(g) to "establishing and operating easy‑to‑use systems allowing users of video‑sharing platforms to rate the content referred to in [Article 28b(1)]" and Article 28b(3)(h) to "providing for parental control systems that are under the control of the end‑user with respect to content which may impair the physical, mental or moral development of minors" - are all examples of "access control measures".
150. However, Article 28b(3)(a) and (b) of the AVMSD expressly provides that the measures adopted, shall be "as appropriate", including and applying in the terms and conditions of the video-sharing platform services, the requirements referred to in Article 28b(1) (in the case of Article 28b(3)(a)) and the requirements set out in Article 9(1) for audiovisual commercial communications that are not marketed, sold or arranged by the video-sharing platform providers (in the case of Article 28b(3)(b)).
151. When assessing the interaction between the DSA and the AVMSD, sections 12.1, 12.6 to 12.9, and 13.6 to 13.9 of the Code focus on the terms and conditions which providers of intermediary services offer, and the consequences of their infringement, and there is, in my view, no conflict between the DSA and the AVMSD. The argument posited on behalf of X that because the AVMSD is a directive its obligations are somehow lessened, because directives as a legal instrument can incorporate a measure of discretion is not, in my view, correct. The relationship between the two legal instruments (i.e., the DSA as a Regulation and the AVMSD as a Directive) via the prism of Article 2(4) of the DSA (and informed by Recital (10)), and exemplified by Article 14 of the DSA, reflects the travaux préparatoires (referred to earlier) and the consideration by the EU institutions of the relevance of other layers of regulation in Union acts, to that prescribed by the DSA and which are complementary to it and which pursue the same objectives.
152. It was entirely open for the Commission, having regard to its powers and the results of the consultation exercise, to choose the methodology of measures which relate to terms and conditions in Article 23b(3)(a) and (b) amongst the suite of measures provided for in Articles 28b(3)(a) to (j) (referred to above) and having regard to the overarching obligation under Article 28b(1).
153. The provisions of the Code (the AVMSD and the 2009 Act), for example, must be viewed in the context of the DSA establishing a harmonised and horizontal regulatory framework applicable to online intermediary services. The AVMSD brings complementary value by providing specific rules in determining what content can be harmful to minors. This was achieved after a wide-ranging consultative process which engaged all stakeholders, including X (through Technology Ireland). The point is also made on behalf of the Commission that X seeks to assert, without adducing any evidence, that the objectives could have been achieved through access control measures.
154. Whilst this is not a merits based challenge in the traditional sense, the substance of the engagement in this consultative and iterative process - involving drafts of the Code, observations and further responses on drafts which were collated, analysed and considered - is important in (a) providing the context in which the exercise of statutory interpretation takes place and (b) in understanding the rationale as to why the Commission adopted the Code and, in particular measures which related to "terms and conditions" and their "infringement". For example, two research surveys by IPSOS B&A were commissioned in order to gather further information about the views of the public on the regulation of video-sharing platform services with the first survey concentrating on usage by the public of websites and apps and the second survey focusing on the potential online harms caused by video content. The Commission published a consultation document, entitled "Online Safety", enclosing a draft Online Safety Code and draft statutory Guidance. The Commission engaged Wagner‑Hatfield to prepare a report summarising the responses to the December 2023 Consultation and published its response to the consultation of the draft Code, which addressed issues including, for example, the definition of "restricted video content" and "restricted indissociable user‑generated content" therein.
155. In that document, for example, it states that the Commission considered that "in order to ensure that VSPS providers take appropriate measures in light of Article 28b(3)(a) of the AVMS Directive, it is appropriate to oblige, through Part A, that VSPS providers, as appropriate, include and apply in the service's terms and conditions[ [51]] the requirements to provide certain protections to the general public and children.[ [52]] Part A also imposes a general obligation on VSPS providers to take appropriate measures[ [53]] to protect children and the general public from harmful content. The Commission also considers it appropriate to retain provisions in Part B that VSPS providers shall require, through their terms and conditions,[ [54]] the prevention[ [55]] of uploading or sharing restricted video content. The Code retains the provision that this shall not preclude the uploading or sharing of content as a contribution to civic discourse, provided certain protections are in place".
156. Section 5.4 of the Commission's Response to Consultation set out its approach to requirements with which video-sharing platform services providers were obliged to comply in the context of suspension and termination of accounts and noted that the revised draft Code had removed the requirement for VSPS providers to terminate accounts for infringements of terms and conditions. The Commission considered that in order to give full effect to the provisions of Article 28b(3) of the AVMSD in relation to terms and conditions, it was appropriate to require VSPS providers, under Part B of the draft code, to ensure that there were consequences for users who frequently uploaded or shared content that infringed a service's terms and conditions. Accordingly, the Commission had revised the draft Code to provide for suspension, rather than termination, and it considered that there was a need for VSPS providers, in deciding upon suspensions of user accounts, to have due regard to the rights and legitimate interests of all parties involved.
157. Whilst the second paragraph of Article 28b(3) contemplates that under Article 28b(1)(a), protection for minors from programmes, user-generated videos and audiovisual commercial communications which may impair their physical, mental or moral development in accordance with Article 6a(1) comprising the most harmful content shall be subject to "the strictest access control measures", it is not exclusively so and the third paragraph of Article 28b(3)(a) and (b) of the AVMSD expressly provides that the measures adopted, shall consist of, "as appropriate" including and applying in the terms and conditions of the video-sharing platform services, the requirements referred to in Article 28b(1) (in the case of Article 28b(3)(a)) and the requirements set out in Article 9(1) for audiovisual commercial communications that are not marketed, sold or arranged by the video-sharing platform providers (in the case of Article 28b(3)(b).
158. In my view, in the adoption of the Code (and sections 12.1, 12.6 to 12.9 and 13.6 to 13.9) and by choosing the form and methodology of ensuring that video-sharing platform providers include measures in their terms and conditions with consequences for their infringement, the provisions of the AVMSD (as transposed in the 2009 and 2022 Acts) are being implemented with the specificity, precision and clarity required to satisfy the requirements of legal certainty, [56] which culminates in a legal situation which is sufficiently precise and clear so that all concerned parties are aware of the extent of their rights and obligations. [57]
159. The Code was adopted pursuant to Articles 28b (1), (2) and (3) of the AVMSD and the provisions of the 2009 Act (set out earlier).
160. In the context of the protection of children, the AVMSD recognises that Ireland, now through the statutory office of the Commission, can seek to ensure that video-sharing platform providers include measures in their terms and conditions which 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 to ensure that their terms and conditions require commercial communications to be identifiable as such and prohibit certain types of communications which are harmful and the DSA recognises that such provisions are without prejudice and complementary to the general transparency obligations and general restrictions applicable to the terms and conditions of all providers of intermediary services in Article 14 of the DSA.
161. In this regard, the DSA (in particular in Recital (10), Article 2(4) and Article 14 of the DSA) adopts a similar position to the measures which are required in the terms and conditions in the AVMSD, the Platform-to-Business Regulation and the Terrorist Content Online Regulation. The Code, the 2009 Act and the AVMSD, for example, protects via the methodology of terms and conditions (a) minors from content which may impair their physical, mental or moral development, (b) the general public from content containing incitement to violence or hatred and (c) which requires commercial communications to be readily recognizable as such and prohibit certain forms of harmful communications; similarly, the Platform-to-Business Regulation imposes further transparency obligations on online intermediation services, including online platforms in the terms and conditions of their business contracts; likewise, the measures which are required in the terms and conditions in the Terrorist Content Online Regulation which also imposes further transparency obligations on hosting service providers to the address the dissemination of terrorist content online.
162. Returning to the theme of harmonisation, upon which the Applicant places much reliance, I do not think it is a correct proposition to suggest that the facility offered by Article 28b(6) of the AVMSD is now excluded by the DSA because of the principle of full harmonisation.
163. Having regard to Article 114(1) TFEU which inter alia refers to the adoption (harmonisation) of measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market, the principle of harmonisation or approximation encapsulated by the reference in Article 1(2) of the DSA to "laying down harmonised rules on the provision of intermediary services in the internal market" speaks to the horizontal effect of the DSA's provisions. That, combined with the choice of instrument of implementation of the DSA being a Regulation and the reference in Recital (9) to the DSA "fully" harmonising the rules applicable to intermediary services in the internal market with the objective of inter alia ensuring a safe, predictable and trusted online environment, and the reference to the fully harmonised rules applicable to providers of intermediary services in accordance with the DSA's objectives and the further reference in Recital (9) to "the fully harmonised rules applicable to providers of intermediary services" in accordance with the objectives of the DSA, evidences a clear preference for full or maximum harmonisation and uniformity of the DSA throughout the EU Member States.
164. This should not, however, be conflated with the fact that the DSA through its provisions (for example, in Recitals (9), (10) and Article 2(4)) recognises the significance of, first, categories of Union law provisions which regulate other aspects of the provision of intermediary services and addresses issues which are not regulated by the DSA, and, second, categories of Union law provisions which specify and complement the DSA.
165. This is consistent with the observations of Bobek AG in his Opinion dated 25th July 2018, Spetsializirana prokuratura v Dzivev & Ors, Case C-310/16, EU:C:2018:623, beginning at paragraph 70 (et passim.), that the framing of the debate in terms of 'harmonisation' per se may be somewhat misleading because it implies a sectoral analysis whereas, for example, in this case Article 2(4) (informed by Recital (10)) envisages and incorporates other 'complementary' Union acts and has the bifurcated meaning referred to earlier [58] rather than, for example, the exclusion of autonomous action of a Member State from the 'regulatory space'. Article 2(4) of the DSA is, therefore, the gateway to understanding the "the matters specifically covered" [59] by the process of horizontal harmonisation effected in the DSA.
166. Both the AVMSD and the DSA have sought to balance the rights of all participants and stakeholders. The process of codification which is at the heart of this legal challenge involved extensive consultation in relation to the substance of the issues which it seeks to address. Recital (9) refers to fully harmonising the rules applicable to intermediary services in the internal market with the objective of ensuring a safe, predictable and trusted online environment, addressing the dissemination of illegal content online and the societal risks that the dissemination of disinformation or other content may generate, and within which fundamental rights enshrined in the Charter are effectively protected and innovation is facilitated. A number of other provisions refer to the rights enshrined in the Charter.
167. The manner of the detailed consultation which was carried out by the Commission and which led to the making and adoption of the Code, and the provisions of the Code itself, could not in my view be criticised by reference to, for example, the principle of proportionality in Article 52(1) of the Charter of Fundamental Rights of the European Union. [60]
168. Further, Article 8 of the DSA provides that there is "No general obligation to monitor the information which providers of intermediary services transmit or store, nor actively to seek facts or circumstances indicating illegal activity shall be imposed on those providers." This prohibits the imposition on providers of intermediary services of general monitoring and fact-finding obligations and sets limits on what is required from providers of intermediary services in respect of illegal content or illegal activities involving their services. It has been observed that "Rules echoing or at least resembling Article 8 DSA can be found in a range of other acts of EU law, in particular Article 5(8) Terrorist Content Regulation, Article 17(8) Copyright in the DSM Directive, and Article 28b(3) Audiovisual Media Services Directive (AVMSD)". [61]
169. Therefore, in this case, consistent with Article 8 of the DSA, Article 28b(3) of the AVMSD applies to video-sharing platform services which do not have editorial control over the content on their services whereas Article 9 of the DSA (Orders to act against illegal content), for example, relates to orders to act against specific items of illegal content where there is such control.
170. The Code is consistent, and is not in conflict, with Article 8 of the DSA. Its measures give effect to Article 28b(3) which, for the purposes of Article 28b(1) and (2) refers inter alia to measures that are "practicable and proportionate, taking into account the size of the video-sharing platform service and the nature of the service that is provided" and which "shall not lead to any ex-ante control measures or upload-filtering of content which do not comply with Article 15 of Directive 2000/31/EC".
171. As stated, Article 14 of the DSA recognises that the methodology of supervision for the protection of minors is achieved through the application of terms and conditions, which the providers themselves operate - in this case it is the AVMSD which addresses video-sharing platform services (VSPS), but a similar process and principle applies in the Terrorist Content Online Regulation and the Platform-to-Business Regulation.
172. The Applicant further contends that Article 28b(1)(a) of the AVMSD is limited to the provision of access control measures to protect minors, by its reference to "minors" and "Article 6a(1)" whereas Article 28b(1)(b) and (c) of the AVMSD refers to taking appropriate measures to protect the "general public" from, respectively, hate speech and commercial communications containing content, the dissemination of which constitutes an offence, and that the absence of a reference to "Article 6a(1)" in both Articles 28b(1)(b) and (c) of the AVMSD means that this can include "content control measures" where such material can be prohibited or banned.
173. Minors, however, can also be considered in Article 28b(1)(b) and (c) of the AVMSD as part of the online audience. As mentioned elsewhere in this judgment, Article 1(1) of the AVMSD inter alia defines "audiovisual media service" as inter alia including "providing programmes, under the editorial responsibility of a media service provider, to the general public, in order to inform, entertain or educate" [62] and "video‑sharing platform service" is defined as "providing programmes, user‑generated videos, or both, to the general public, for which the video‑sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate."
174. Further, Recital (4) of the AVMSD refers inter alia to the fact that "[v]ideo-sharing platform services provide audiovisual content which is increasingly accessed by the general public, in particular by young people". Recital (44) of the AVMSD inter alia states that "[i]t is appropriate to ensure that the same rules also apply to video-sharing platform providers which are not established in a Member State with a view to safeguarding the effectiveness of the measures to protect minors and the general public set out in Directive 2010/13/EU and ensuring as much as possible a level playing field, in so far as those providers have either a parent undertaking or a subsidiary undertaking which is established in a Member State or where those providers are part of a group and another undertaking of that group is established in a Member State".
175. Recital (45) of the AVMSD refers to "new challenges, in particular in connection with video-sharing platforms, on which users, particularly minors, increasingly consume audiovisual content. In this context, harmful content and hate speech provided on video-sharing platform services have increasingly given rise to concern. In order to protect minors and the general public from such content, it is necessary to set out proportionate rules on those matters".
176. Separately, and addressing the issue of interpretation at the level of general principle, in considering the arguments made on behalf of X as to whether the impugned provisions of the Code go beyond the 'requirements' of the AVMSD, the following provisions can also be noted: Recital (20) of the AVMSD provides that "The appropriate measures for the protection of minors applicable to television broadcasting services should also apply to on-demand audiovisual media services. That should increase the level of protection. The minimum harmonisation approach allows Member States to develop a higher degree of protection for content which may impair the physical, mental or moral development of minors. The most harmful content, which may impair the physical, mental or moral development of minors, but is not necessarily a criminal offence, should be subject to the strictest measures such as encryption and effective parental controls, without prejudice to the adoption of stricter measures by Member States." [63]; Recital (41) of the AVMSD provides that "Member States should be able to apply more detailed or stricter rules in the fields coordinated by this Directive to media service providers under their jurisdiction, while ensuring that those rules are consistent with general principles of Union law"; Further, Recital (47) of the AVMSD inter alia provides that "[a] significant share of the content provided on video-sharing platform services is not under the editorial responsibility of the video-sharing platform provider. However, those providers typically determine the organisation of the content, namely programmes, user-generated videos and audiovisual commercial communications, including by automatic means or algorithms. Therefore, those providers should be required to take appropriate measures to protect minors from content that may impair their physical, mental or moral development. They should also be required to take appropriate measures to protect the general public from content that contains incitement to violence or hatred directed against a group or a member of a group on any of the grounds referred to in Article 21 of the Charter of Fundamental Rights of the European Union (the 'Charter'), or the dissemination of which constitutes a criminal offence under Union law." [64]
177. In addition, Article 4(1) of the AVMSD provides that "Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the fields coordinated by this Directive provided that such rules are in compliance with Union law".
178. Article 6a(1) of the AVMSD provides that "Member States shall take appropriate measures to ensure that audiovisual media services provided by media service providers under their jurisdiction which may impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see them. Such measures may include selecting the time of the broadcast, age verification tools or other technical measures. They shall be proportionate to the potential harm of the programme. The most harmful content, such as gratuitous violence and pornography, shall be subject to the strictest measures."
179. Article 6a(1) of the AVMSD makes a distinction between content which may impair the physical or moral development of minors and the most harmful content, such as gratuitous violence and pornography. The reference, in the first part of the sentence, to taking appropriate measures which ensure that audiovisual media services provided by media service providers "impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see them" is not a prescription to make such content "available" but is, rather, a conditional requirement to ensure that minors will not normally hear or see them, the corollary being if that assurance cannot be met, the same should not be made available.
180. In its judgment of 29th February 2024, European Commission v Ireland, C-679/22 EU:C:2024:17, at paragraph 78, in describing the State's acknowledgement that it had not, in the context of that case and at that time, transposed Article 6a(1) and (3) of the AVMSD, the CJEU described Articles 6a(1) and 6a(3) of the AVMSD as provisions "which seek to ensure that audiovisual media services do not make available to minors content which may impair their physical, mental or moral development and those in Article 28b(1) of [the AVMSD] relating to the taking of appropriate measures by video-sharing platform providers under the jurisdiction of each Member State to protect the general public from programmes, videos or audiovisual commercial communications containing incitement to violence or hatred or which constitute an activity which is a criminal offence under EU law". [65]
181. As a matter of general principle, therefore, having regard to the horizontal nature of the DSA's harmonisation and the complementary and layered relationship between the DSA and the AVMSD, reflected, for example, in provisions such as Recitals (9) and (10) and Articles 2(4) and 14 of the DSA, the adoption of a Code which ensures that video-sharing platform providers include measures in their terms and conditions to protect minors from content which may impair their physical, mental or moral development, measures which protect the general public from content containing incitement to violence or hatred and further, that the terms and conditions require commercial communications to be readily recognisable as such and prohibit certain forms of harmful communications, is consistent with the approach envisaged by Recital (20) and Article 6a of the AVMSD and which is complementary to the DSA.
182. Insofar as the dichotomy between lawful but harmful, on the one hand, and illegal, on the other hand is concerned, the AVMSD is aimed at not just matters which are independently illegal through existing legislation and, therefore, not to be transmitted, but also material that is harmful. Whilst harmful content may not be illegal, EU law has placed a paramountcy in extending a legal protection to content which it deems should not be seen. The Commission in making sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code determined that this was most harmful content which should be subject to the strictest measures as envisaged in the second half of the sentence in Article 6a(1) of the AVMSD.
CONCLUSION
183. In this challenge by way of judicial review, X has 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 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 DSA in its provisions which has a pre-eminent application over the AVMSD and the 2009 Act by virtue of (a) its provisions and (b) 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.
184. In making this argument, X relies upon the following issues in particular: first, the cross-reference to Article 6a(1) means that access control measures and not content control measures are required to be imposed by Article 28b(1)(a) in order to protect minors from material that may impair their physical, mental or moral development; second, it is argued that the Code imposes the same content control measures on adults as it does on minors and makes no distinction between them whereas, it submits, Article 28(1)(a) is concerned with the protection of minors only; third, it is argued that the definition of 'restricted content' in the Code is too broad and may capture content that is legal but will be prohibited on the basis that it is harmful provided that it meets the risk test and that this goes further than what is required by Article 28b of the AVMSD; fourth, it is argued that that Article 28b of the AVMSD does not require Member States to put in place any provisions in relation to enforcement such as the invocation of a process of suspension when the terms and conditions of video-sharing platform service providers are infringed and therefore sections 12.6‑12.9 and 13.6‑13.9 of the Code go beyond what is required by Article 28b of the AVMSD. As a corollary of these arguments, it is contended on behalf of X that in order for the Code to be consistent with the Charter of Fundamental Rights of the EU, it should have adopted 'targeted measures' rather than what it characterises as blanket restrictions on content.
185. However, for the reasons set out in this judgment, I do not agree that the Applicant is entitled to the reliefs sought by way of judicial review having regard to these matters.
186. I am of the view that when consideration is given to the above factors, including - (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 are considered, (iii) the use of concepts, including, for example, 'without prejudice', 'lex specialis' and 'harmonisation', (iv) the provisions of the Code, 'terms and conditions' and related obligations, (v) the juxtaposition of the provisions of the DSA with the complementary provisions of the AVMSD (vi) the 'measures' specified in the terms and conditions of the provisions of the Code which are sought to be impugned– the promulgation by the Commission of sections 12.1, 12.6 to 12.9, and 13.6 to 13.9 of the Code is not ultra vires (and does not amount to an impermissible or inconsistent overreach) of the provisions of the DSA.
187. In summary, 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.
188. The Applicant places 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 is 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. [66]
189. Further, the provisions of sections 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, in my view, conflict with the DSA, including Article 14.
190. As stated, the full horizontal harmonisation of the DSA does not detract from the fact that the provisions of Article 2(4) of the DSA (informed by inter alia Recital (10)) provides for other Union law (as per the AVMSD as transposed in the 2009 Act) and, for example, the making and adoption of sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code which seeks 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. Such provisions are within the vires of the AVMSD and the 2009 Act, and are entirely complementary to the DSA and not in conflict with it.
191. In the circumstances, for the reasons outlined, I refuse the Applicant the reliefs sought.
PROPOSED ORDER
192. I propose, therefore, to make an order refusing the reliefs sought. I shall put the matter in for mention at 9:00am on Thursday 31st July 2025 to deal with any ancillary matters which may arise.
193. My provisional view is that as the Commission has been entirely successful in opposing this application for judicial review, the default position under section 169 of the Legal Services Regulation Act 2015 applies and it would, therefore, be entitled to recover such measured legal costs (including reserved costs, if any) against the Applicant which may be agreed, or adjudicated upon in default of agreement, by the Office of the Legal Costs Adjudicator.
194. However, in the event that either party seeks a different form of costs order and wishes to make submissions having regard to the discretionary factors inter alia prescribed in section 169 of the Legal Services Regulation Act 2015, and case law, they may do so as per the following directions: the applicant shall furnish written submissions (limited to 1,500 words) to be delivered within 21 days of the date of the delivery of this judgment; the respondents may reply by furnishing written submissions (again limited to 1,500 words) to be delivered 21 days thereafter. A date for the hearing of any costs issue can be agreed at the 'for mention' date above.
Appearances
195. Declan McGrath SC and Emma Synnott BL appeared for the Applicant instructed by A&L Goodbody Solicitors.
196. Paul Gallagher SC, Catherine Donnelly SC, Aoife McMahon BL and Shauna Keniry BL appeared for the Respondent instructed by William Fry Solicitors.
CONLETH BRADLEY
29th July 2025
[1] Broadcasting Authority of Ireland.
[2] Directive 2010/13/EU as amended by Directive (EU) 2018/1808.
[3] "VSPS".
[4] Regulation (EU) 2022/2065.
[5] The underlining is in Ms. Hodnett's Affidavit, per paragraph 6.
[6] Section 139L of the 2009 Act provides for the application of Online Safety Codes.
[7] The AVMSD.
[8] The Terrorist Content Online Regulation.
[9] On the marketing and use of explosives precursors (amending Regulation (EC) No. 1907/2006 and repealing Regulation (EU) No. 98/2013).
[10] The Platform to Business ("P2B") Regulation.
[11] See E.K. v Staatssecretaris van Justitie en Veiligheid, C-624/20, EU:C:2022:639, at paragraph 28 (7th September 2022).
[12] Maïstrellis, C‑222/14, EU:C:2015:473, paragraph 30 (16th July 2025).
[13] A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503, at paragraph 37 (25th June 2020).
[14] Collins J. referred to Heather Hill Management Company CLG v An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313 and A, B & C v Minister for Foreign Affairs [2023] IESC 10, [2023] 1 ILRM 335 where the judgment of the Supreme Court was given by Mr. Justice Brian Murray.
[15] Judgment of 10th December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 47; judgment of 1st October 2019, Bundesverband der Verbraucherzentralen und Verbraucherverbände -Verbraucherzentrale Bundesverband eV v Planet49 GmbH, Case C- 673/17, EU:C:2019:801, paragraph 48.
[16] Technical Regulations Information System.
[17] See the observations of Wilman, Kalėda and Loewenthal, The EU Digital Services Act: A Commentary (Oxford University Press, 2024) at pp. 24-24.
[18] Directive 2010/13/EU of the European Parliament and of the Council of 10th March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p.1).
[19] Regulation (EU) 2019/1148 of the European Parliament and of the Council of 20 June 2019 on the marketing and use of explosives precursors, amending Regulation (EC) No 1907/2006 and repealing Regulation (EU) No 98/2013 (OJ L 186, 11.7.2019, p.1).
[20] Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ L 186, 11.7.2019, p.57).
[21] Regulation (EU) 2021/784 of the European Parliament and of the Council of 29 April 2021 on addressing the dissemination of the terrorist content online (OJ L 186, 11.7.2019, p.1) and referred to in this judgment as Terrorist Content Online Regulation.
[22] Regulation (EU) 2021/1232 of the European Parliament and of the Council of 14 July 2021 on temporary derogation from certain provisions of Directive 2002/58/EC as regards the use of technologies by providers of number-independent interpersonal communications services for the processing of personal and other data for the purpose of combating online child sexual abuse (OJ L 274, 30.7.2021, p.41).
[23] Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p.37).
[24] i.e., the DSA.
[25] Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12th December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, p.1).
[26] Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20th June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011(OJ L 169, 25.6.2019, p.1).
[27] Directive 2001/95/EC of the European Parliament and of the Council of 3rd December 2001 on general product safety (OJ L 11, 15.1.2002, p.4).
[28] Directive 2005/29/EC of the European Parliament and of the Council of 11th May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council ('Unfair Commercial Practices Directive') (OJ L 149, 11.6.2005, p.22).
[29] Directive 2013/11/EU of the European Parliament and of the Council of 21st May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (OJ L 165, 18.6.2013, p.63).
[30] Council Directive 93/13/EEC of 5th April 1993 on unfair terms in consumer contracts (OJ L 165, 18.6.2013, p.63).
[31] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p.1).
[32] Underlining added in this judgment.
[33] For example, Recital 72 of the DSA inter alia provides that the traceability requirements for providers of online platforms allowing consumers to conclude distance contracts with traders set out in the DSA do not affect the application of Council Directive (EU) 2021/514 amending Directive 2011/16/EU on administrative cooperation in the field of taxation "which pursues other legitimate public interest objectives."
[34] Underlining added.
[35] Underlining added.
[36] Regulation (EU) 2016/679.
[37] Underlining added in this judgment.
[38] Sections 13.6 and 13.9 of the Code contain similar provisions to section 12.6 to 12.9 and address the suspension of accounts arising from infringements of the obligations in relation to audiovisual commercial communications.
[39] Unless they are expressly provided for.
[40] The code defines "restricted indissociable user-generated content" as meaning "indissociable user-generated content which, taken together with the user-generated video to which it relates, is - (a) indissociable user-generated content by which a person bullies or humiliates another person,( b) indissociable user-generated content by which a person promotes or encourages behaviour that characterises a feeding or eating disorder, (c) indissociable user-generated content by which a person promotes or encourages self-harm or suicide (to include video content which encourages behaviour prejudicial to the health or safety of children, including dangerous challenges), (d) indissociable user-generated content by which a person makes available knowledge of methods of self-harm or suicide (to include video content which encourages behaviour prejudicial to the health or safety of children, including dangerous challenges) - where in the case of points (a)-(d) such content meets the risk test as defined in the Code; and includes: (e) indissociable user-generated content containing incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter of Fundamental Rights of the European Union, namely sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, sexual orientation, (f) indissociable user-generated content the dissemination of which constitutes a public provocation to commit a terrorist offence as set out in Article 5 of Directive (EU) 2017/541, (g) indissociable user-generated content the dissemination of which constitutes an offence concerning 'child pornography' within the meaning given to the term in Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council, and (h) indissociable user-generated content the dissemination of which constitutes an offence concerning racism and xenophobia as set out in Article 1 of Framework Decision 2008/913/JHA."
[41] Underlining added.
[42] These are the categories listed in Schedule 3 of the 2009 Act and any category specified under ministerial order pursuant to section 139B of the 2009 Act.
[43] Emphasis added.
[44] Underlining added.
[45] As suggested by Wilman, Kalėda and Loewenthal, The EU Digital Services Act: A Commentary (Oxford University Press, 2024) at p.123.
[46] Regulation (EU) 2021/784.
[47] The Commission is also the competent authority as the Digital Services Coordinator for State for the purposes of Article 49(2) of the DSA.
[48] Articles 12 to 15 of the e-Commerce Directive (Directive 2000/31/EC) refer to internet platforms, hosting services etc., that do not have an obligation in relation to the monitoring of conduct.
[49] Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p.1).
[50] Underlining added in this judgment.
[51] Underlining added in this judgment.
[52] Underlining added in this judgment.
[53] Underlining added in this judgment.
[54] Underlining added in this judgment.
[55] Underlining added in this judgment.
[56] Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94, Erich Dillenkofer and Others v. Federal Republic of Germany, EU:C:1996:375.
[57]Judgment of 12th May 2022, U.I. Srl v Agenzia delle dogane e dei monopoli – Ufficio delle dogane di Venezia, Case C-714/20, EU:C:2022:374.
[58] First, a reference to other Union legal acts regulating other aspects of the provision of intermediary services in the internal market containing legal provisions governing issues which are not regulated by the DSA; second, a reference to other Union legal acts which in fact complement and are without prejudice to the DSA.
[59] See by analogy the observations of the CJEU in its judgment of 21st December 2023, VK v BMW Bank GmbH, Joined Cases C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:101 at paragraph 295.
[60] See the observations of the High Court (Phelan J.) in Tumblr Incorporated v Coimisiún na Meán [2024] IEHC 366, at paragraphs 155-156 of its judgment, and the judgment of the CJEU in Joined Cases C‑293/12 and C‑594/12, Digital Rights Ireland Ltd v Minister for Communications, EU:C:2014:238, at paragraph 38 et passim.
[61] Underlining added in this judgment. See, Wilman, Kalėda and Loewenthal, The EU Digital Services Act: A Commentary (Oxford University Press, 2024) at p.85.
[62] Emphasis added.
[63] Emphasis added in this judgment.
[64] Underlining added.
[65] Emphasis added in this judgment.
[66] See, Wilman, Kalėda and Loewenthal, The EU Digital Services Act: A Commentary (Oxford University Press, 2024) at pp.26-28.
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