The designation of Tumblr and Reddit as Video-Sharing Platform Services (VSPS) by Coimisiún na Meán (CNaM), the Irish Media Commission, has been upheld in two decisions of the Irish High Court.

CNaM welcomed the Tumblr and Reddit judgments, which are the first decisions involving the regulatory powers of CNaM in Ireland, and reiterated its commitment to advancing online safety for users in Ireland and the EU. CNaM also announced its intention to move forward with its draft Online Safety Code which it plans to have in force in late 2024.

What does this mean?

• For Reddit and Tumblr

As VSPS, both Reddit and Tumblr will be subject to any Online Safety Codes prescribed by CNaM. 

Reddit and Tumblr are still before the Irish High Court awaiting final orders. Reddit recently indicated to the Irish High Court that it intends to appeal, while it remains to be seen what Tumblr will do next.

• For CNaM

It is likely CNaM will take confidence from the Irish High Court upholding its decisions to designate VSPS and acknowledging its robust procedures. The Irish High Court described CNaM's decision making process as "fully open and transparent" endorsing the procedures adopted and implemented by CNaM. The Irish High Court referred to the “great care” and “careful, reasoned decision” that was taken by CNaM in arriving at its decisions to designate Reddit and Tumblr.

• For companies with online businesses and platforms 

The Reddit and Tumblr decisions offer clarity into the meaning and interpretation of certain provisions of the Broadcasting Act 2009, as amended by the Online Safety and Media Regulation Act 2022 (the Act).

While there were differences between the two challenges, there was also significant overlap in the applicable legal and regulatory framework which presents a unique insight for online businesses and platforms that are exploring where they stand with regard to CNaM and its regulatory remit.

The judgments of the Irish High Court provide clarity on the following: 

A. Jurisdiction 

Reddit's arguments that it did not fall within CNaM's jurisdiction were not accepted by the Court. 

The jurisdiction for VSPS under the Act is governed by Section 2B which incorporates Article 28A of Directive (EU) 2018/1808 (Revised AVMS Directive).

Section 2B provides for a "derived deemed jurisdiction" in certain circumstances, including through related undertakings, regardless of the service provider’s country of origin or place of establishment. If jurisdiction is properly deemed, national provisions apply as if the platform were established within the relevant Member State.

The Irish High Court said that if it was to adopt the jurisdictional test put forward by Reddit, VSPS with significant numbers of users and high levels of activity within the EU could avoid effective regulation. This would in turn undermine the governance regime of the Revised AVMS Directive and the application of any Online Safety Code to VSPS.

B. User generated videos

The Irish High Court found that the scope of “user generated video” within the meaning of the Revised AVMS Directive extends beyond native user generated video. The Irish High Court held that user-uploaded links to embedded videos that can be streamed directly on the platform will constitute “user generated video” even when the video itself is not uploaded onto, or hosted by, the platform.

As the quantitative and qualitative data on native user generated videos was sufficient to conclude that video sharing was an essential functionality of Reddit, CNaM did not need to evaluate the relevant embedded video content past identifying it.

C. Embedded videos and hyperlinked videos

The Irish High Court upheld CNaM’s decision to treat embedded videos and hyperlinked videos differently.

D. Video Sharing as an Essential Functionality  

Tumblr argued that CNaM had erred in law by designating it as a VSPS due to the low rate of video content on the platform. 

The Irish Court rejected Tumblr's argument, and held that the essential functionality of Tumblr was devoted to video sharing, and “the scale and quantity of video content, whilst a relevant consideration, is never a determining factor”. 

The Irish High Court recognised the fact CNaM had considered the European Commission Guidelines (2020/C223/02) (the EC Guidelines) on whether a business may be designated a VSPS. 

The EC Guidelines identify four broad categories of relevant indicators for national authorities, like CNaM, to consider when applying the essential functionality criterion in the definition of a video-sharing platform service:

1. Architecture and external layout of the platform,
2. Quantitative and qualitative relevance of audiovisual content for the activities of the service,
3. The monetisation or revenue generation from the audiovisual content including indirect monetisation, and
4. The availability of tools aimed at enhancing the visibility or attractiveness of the audiovisual content.

What can we expect next from CNaM?

CNaM continues to increase its regulatory activity and the enforcement of its Online Safety Framework and has been focused on:

• Guidance for trusted flaggers on how to apply to be formally charged with detecting, identifying and notifying illegal content, 
• Information Packs for Election Candidates in Ireland to counter harmful and/or illegal content, and 
• Developing a Decision Framework setting out a step-by-step process to support social media platforms, web hosting services and cloud services to determine if they have been exposed to terrorist content and if so what measures they are required to take under the Terrorist Content Regulation.