About this case:

• Citation:
  [2024] IEHC 367
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Siobhán Phelan

Delivering judgment for the High Court, Ms Justice Siobhán Phelan considered that the respondent had taken “great care” in arriving at its decision to designate Reddit as a video-sharing platform and that Reddit “failed to demonstrate an error in the interpretation and application of the essential functionality test as properly guided by the EC Guidelines and on the basis of relevant considerations which were properly grounded in the evidence”.

Background

The applicant, a social media platform which enables users to create shared-interest communities, challenged its designation by the respondent as a video-sharing platform service (VSPS) within the meaning of Directive 2010/13/EU as amended by Directive (EU) 2018/1808 (the Revised AVMS Directive) as implemented in the State by the Broadcasting Act 2009 (as amended by the Online Safety and Media Regulation Act 2022).

Pursuant to the AVMS Directive, the respondent is required to designate any service appearing to be a VSPS as a service to which online safety codes may be applied, the breach of which could result in fines of up to €20,000,000 or 10 per cent of a provider’s relevant annual turnover.

On 29 December 2023, the respondent designated Reddit as a VSPS pursuant to s.139E and s.139g(2) of the 2009 Act, prompting the issuing of judicial review proceedings contending that Reddit, as a US corporate body, is not subject to the jurisdiction of the State on a proper interpretation and application of article 28a of the AVMS Directive.

Reddit also contended inter alia that the respondent erred in its interpretation and application of articles 1(aa), 1(b) and 1(ba) of the Revised AVMS Directive and s.2(2) of the 2009 Act by treating not just “native video” but embedded or hyperlinked video as part of Reddit’s video functionality when determining whether an essential functionality of Reddit is devoted to video-sharing such as to warrant its designation.

The High Court

Having considered the relevant legislation, Ms Justice Phelan observed that where a VSPS is not established in an EU member state, but where a related company is so-established, the Revised AVMS Directive “provides for a form of deemed derivative jurisdiction in respect of the non-State established VSPS and sets out the rules which govern which Member State is responsible for exercising this deemed derivative jurisdiction where related qualifying undertakings are established in more than one Member State”.

Noting that Reddit Ireland Limited, an Irish-registered subsidiary of the applicant, carries out the economic activity of providing support services to the applicant, the court found that the respondent had correctly concluded that Reddit Ireland Limited maintained a “stable and effective link” with the Irish economy such that the applicant was appropriately deemed to be established within the jurisdiction of the State pursuant to the 2009 Act.

Turning to Reddit’s assertions that the respondent referred to “audiovisual content” in its Information Notice as “a collective term for both user-generated videos and audiovisual programmes” and thereby failed to properly identify the content upon which the designation decision was based, the court observed that Reddit never asked the respondent to distinguish them nor was there any real suggestion by Reddit that audiovisual programmes or user-generated videos were not provided on its platform.

Accordingly, Ms Justice Phelan was satisfied that the respondent gave detailed reasons for its decision to designate Reddit as a VSPS and that the use of the terms ‘audiovisual content’ and ‘videos’ did not give rise to uncertainty as to the content which led to the designation.

Equally, the court rejected Reddit’s argument that the respondent erred in its decision to designate it as a VSPS by reference to “non-native video” available only by an embedded link, noting that the respondent was satisfied that even excluding “non-native video”, an essential functionality of Reddit is devoted to the provision of “native videos” which are stored on its servers.

In this regard, Ms Justice Phelan commented that she found Reddit’s case regarding this alleged confusion to be “torturous and less than compelling”, finding: “In essence, Reddit considers that the fact that it was referred to at all makes it unclear whether embedded video was assessed or not in the decision to designate.”

Having concluded that “essential functionality” may be assessed on the basis of native user video alone together with video functionality on the platform, the court determined that it was nonetheless obliged to consider whether embedded video was properly within the scope of the Revised AVMS Directive based on Reddit’s contentions inter alia that the respondent in referring to same took into account irrelevant matters.

Ms Justice Phelan opined: “I am satisfied that the definition of ‘user generated video’ is properly construed by the Respondent as capturing a situation where an embedded link is uploaded in a post on Reddit in a manner which permits the video to be played on the Reddit platform. The fact that the video is played on Reddit means that it is accessed by the user on Reddit. The user engages with and views the content on Reddit. This is enough to bring such content within the regulatory scope of the Revised AVMS Directive and our transposing legislation as the component elements of the test for user generated video are met — the video is created by a user and uploaded to a video sharing platform by that user or another user.”

The judge also confirmed that the respondent was entitled to conclude that a sufficient number of indicators under the EC Guidelines issued by the European Commission on the 7th of July 2020 supported its conclusion that audiovisual programmes and/or user generated video was an essential functionality of Reddit’s service.

In response to Reddit’s arguments concerning the respondent’s treatment of inter alia quantitative and qualitative data, Ms Justice Phelan stated that “Reddit appears to have assumed that if the relative number of videos compared to other forms of content on the service is small, this means the service is not a video-sharing platform service. This is not supported by the 2009 Act nor the Revised AVMS Directive nor EC Guidelines.”

The court further observed: “No matter how Reddit characterizes its native video content in relative terms to other content on its platform, the figures speak for themselves in terms of significance and relevance and the Respondent was entitled to attach weight to these figures in arriving at its decision to designate. It may also readily be extrapolated from these figures that the reach of any harmful video content shared on the platform is potentially enormous, even though video sharing is not the principal function of the platform and is incidental to its primary function.”

Ms Justice Phelan concluded that the respondent had take great care in arriving at its decision in a fully open and transparent process, that there was ample sufficiency of evidence available to the respondent to support its decision, and that the respondent had careful regard to the EC Guidelines, basing its decision on relevant considerations in line with those Guidelines.

Conclusion

Declining to refer any question concerning the interpretation of EU law to the Court of Justice of the European Union, the High Court dismissed Reddit’s proceedings.

Reddit Incorporated v Coimisiún na Meán [2024] IEHC 367