1) Introduction

This “No. 2” judgment concerns X Internet Unlimited Company (the Applicant, previously known as Twitter) and Coimisiún na Meán (the Respondent, Ireland’s media regulator). The Applicant sought a certificate to appeal under s.38 of the Broadcasting Act 2009 from the High Court’s earlier decision in X Internet Unlimited Company v. Coimisiún Na Meán [2025] IEHC 442 (“the principal judgment”).

The principal judgment rejected a vires challenge to specified provisions of the Online Safety Code (the “Code”) applicable to video-sharing platform services (VSPS), and held those provisions to be compatible with, and complementary to, the EU Digital Services Act (Regulation (EU) 2022/2065, “DSA”) when read alongside the Audiovisual Media Services Directive (Directive 2010/13/EU as amended by Directive (EU) 2018/1808, “AVMSD”).

The key issue in this judgment is not the merits of the Code challenge as such, but whether the case raises points of law of exceptional public importance such that it is desirable in the public interest that an appeal proceed to the Court of Appeal—bearing in mind the statutory objective of finality and expedition in judicial review within this regulatory framework.

2) Summary of the Judgment

Mr Justice Conleth Bradley granted the application for a certificate to appeal pursuant to s.38(6) of the 2009 Act. The Court held that the principal judgment involved points of law of exceptional public importance and that an appeal was desirable in the public interest. The Court certified six questions (set out at paragraph 34) which focus on the interaction between the DSA and the AVMSD, and on whether the DSA permits Coimisiún na Meán (as competent authority) to adopt certain Code obligations under Article 28b AVMSD.

The judgment also emphasises the structural significance of s.38(7) of the 2009 Act: the Court of Appeal’s jurisdiction is confined to the certified point(s) of law and only such orders as necessarily follow. This makes the framing of certified questions particularly consequential.

3) Analysis

3.1 Precedents Cited

The Court grounded the s.38(6) certification test in an established line of authority developed primarily under the planning judicial review “certificate” regime, due to the similarity of wording between s.38(6) of the 2009 Act and s.50A(7) of the Planning and Development Act 2000. The principal influence of these cases is methodological: they define certification as an exceptional gateway, not an ordinary appeal route.

• CHASE v An Bord Pleanála [2022] IEHC 231: relied upon for the proposition that the Oireachtas sought finality, certainty and expedition in this category of judicial review, and that the appellate jurisdiction should be used sparingly. The judgment adopts this as a guiding policy rationale when interpreting s.38(6).
• Glancré Teoranta v An Bord Pleanála [2006] IEHC 250: part of the foundational planning line on what qualifies as a “point of law of exceptional public importance” and how tightly such points must be defined. It underpins the Court’s insistence that certification must be anchored in what was decided, not in arguments that could have been decided.
• Rushe & Anor v An Bord Pleanála & Ors (No.2) [2020] IEHC 429: supports two core constraints repeated in this judgment: (i) the requirements are cumulative, and (ii) the point must be dispositive (i.e., capable of affecting the outcome rather than being academic).
• Nagle View Turbine Aware v An Bord Pleanála (No.2) [2025] IEHC 3: cited as part of the modern restatement of certification principles; particularly relevant to the warning against certifying points that are too close to the application of settled law or too abstract from the case’s operative reasoning.
• Monkstown Road Residents' Association v An Bord Pleanála [2023] IEHC 9 and Monkstown Road Residents Association & Ors v An Bord Pleanála & Ors [2023] IEHC: used as recent illustrations of how the High Court approaches the “exceptional public importance” threshold and the public-interest limb, including the necessity for genuine uncertainty or an evolving area of law.
• McCaffrey & Sons Ltd v An Bord Pleanála [2024] IEHC 476 and Grall v Meath County Council [2025] IEHC 318: cited as part of the contemporary body of authority articulating the balancing exercise between finality and the need to clarify law of broader application.
• Reddit Incorporated v Coimisiún Na Meán (unreported, High Court (Siobhán Phelan J.), 9thOctober 2024): specifically relevant because it addressed ss.38(5) and 38(6) of the 2009 Act. It situates this judgment within an emerging specialist jurisprudence on appellate gatekeeping in online safety/media regulation.
• X Internet Unlimited Company v. Coimisiún Na Meán [2025] IEHC 442: the substantive decision from which the certified points must “emanate”. This judgment repeatedly returns to that constraint: certification is not a vehicle to re-open the case generally, but to permit appellate scrutiny of the legal propositions actually decided concerning the DSA–AVMSD relationship and vires.

Notably, the judgment also references scholarly commentary—Wilman, Kalėda and Loewenthal, The EU Digital Services Act: A Commentary (Oxford University Press, 2024)—in the background of the principal judgment’s reasoning (via paragraph 24 of this judgment), illustrating that the points certified are not only domestically important but embedded in a broader EU-law interpretive debate.

3.2 Legal Reasoning

The Court’s reasoning proceeds in three stages: (1) the statutory appeal architecture; (2) the governing certification principles; (3) application to the DSA–AVMSD issues actually determined in the principal judgment.

(a) Statutory architecture: restrictive appeal with a certification gate

Section 38(5)(c) imposes a default bar on appeals to the Court of Appeal from High Court judicial review decisions brought under s.38(2), subject to s.38(6). Section 38(6) creates a narrow gateway: certification is available only where (i) the decision involves a point of law of exceptional public importance and (ii) it is desirable in the public interest that an appeal be taken.

Section 38(7) then restricts the appellate court to the certified point(s) of law, highlighting why the High Court must frame the questions carefully so as not to “unduly circumscribe” the Court of Appeal’s ability to resolve the genuine legal controversy.

(b) Certification principles: cumulative, dispositive, and transcending the facts

The judgment consolidates the familiar principles (derived largely from s.50A planning jurisprudence), including:

• The High Court does not consider the likely success on appeal; it identifies whether a qualifying point of law arises.
• The point must emanate from the decision (what the court actually decided), not merely the arguments advanced.
• The point must transcend the facts yet remain dispositive—general in implications but not abstract.
• The two limbs (exceptional public importance; desirability in the public interest) are cumulative.
• Novelty alone is insufficient; but novelty coupled with evolving law or operational uncertainty can support certification.

(c) Application: why the DSA–AVMSD issues meet the threshold

The Court treated the certified issues as meeting both limbs because they involve: (i) the delineation of competence and regulatory space between two EU instruments (DSA and AVMSD) in a rapidly developing area (online safety), and (ii) the legality of a national code imposing obligations on a major VSPS, with significant implications for children’s protection, content governance, and platform terms-and-conditions enforcement.

The judgment highlights that the principal judgment found the Code provisions to be complementary to the DSA (not conflicting with it), relying in particular on DSA Recitals (9) and (10), and Article 2(4) (which preserves and coordinates other Union law), as well as Article 14 (terms and conditions; diligent/objective/proportionate enforcement; due regard to fundamental rights). These findings frame the certified questions as questions of EU-law systemic interaction, rather than merely local administrative law.

(d) The six certified questions: the legal fault-line

The questions focus on whether, “having regard inter alia to” specified DSA provisions, the Commission can adopt Code measures under Article 28b(1) and 28b(3) AVMSD (or alternatively Article 28b(6)) that:

• require a VSPS provider’s terms and conditions to preclude uploading/sharing certain “restricted” content, rather than using access control measures (Questions 34(i) and 34(ii));
• impose that preclusion even where the relevant “risk” under the Code’s “risk test” may attach to a child or an adult (Questions 34(iii) and 34(iv));
• adopt additional provisions (sections 12.6 to 12.9 and 13.6 to 13.9 of the Code), which (as described in the principal judgment) concern terms-and-conditions governance and a suspension process arising from infringement (Questions 34(v) and 34(vi)).

In effect, the Court identified a serious, appellate-worthy question about the boundary between: (a) AVMSD-driven, sector-specific online safety obligations for VSPS (including “harmful” content), and (b) the DSA’s horizontal framework governing intermediary services, terms and conditions, and harmonised rules across Member States.

3.3 Impact

The immediate impact is procedural but significant: an appeal can proceed notwithstanding the default statutory bar, and the Court of Appeal’s inquiry will be structured by the certified questions (and limited by s.38(7)).

Substantively, the certified issues have likely wider consequences:

• Regulatory competence and design: the appeal may clarify whether AVMSD Article 28b permits “preclusion” obligations in platform terms and conditions, or whether protection of minors must be pursued through narrower “access control” approaches—an issue central to the design of online safety regimes.
• DSA–AVMSD coexistence: the Court of Appeal may provide authoritative guidance on how DSA Article 2(4) operates where a Member State applies AVMSD-derived measures to platforms that are also DSA “intermediary services”, including the extent to which “maximum harmonisation” in the DSA constrains national implementation of “minimum harmonisation” directives in adjacent fields.
• Terms-and-conditions enforcement and fundamental rights: since DSA Article 14 requires due regard to recipients’ fundamental rights (including freedom of expression and media pluralism), appellate clarification may influence how regulators and platforms calibrate enforcement mechanisms (including suspension) to remain “diligent, objective and proportionate”.
• Future s.38 certification jurisprudence: this decision reinforces that s.38 certification is exceptional, but also that genuinely novel EU-law interaction questions in online safety can meet the threshold—especially where the issue affects a broad class of services and users, and where legal clarity is needed for day-to-day compliance.

4) Complex Concepts Simplified

Certificate to appeal (s.38(6))

A statutory “permission slip” required before an appeal can be brought. It is granted only where a qualifying point of law of exceptional public importance is identified and an appeal is desirable in the public interest.

Cumulative requirements

Both limbs must be satisfied: (i) exceptional public importance, and (ii) desirability in the public interest. One without the other is insufficient.

Dispositive point

A point that matters to the outcome. If answering it differently would not change the result, it is generally not suitable for certification.

Ultra vires / intra vires

“Ultra vires” means beyond legal power; “intra vires” means within legal power. Here, the question is whether the Commission had legal authority under AVMSD/Irish law to make the impugned Code provisions, and whether the DSA affects that authority.

Minimum vs maximum harmonisation

A minimum-harmonisation directive (like aspects of the AVMSD) sets a floor; Member States may go further. A maximum-harmonisation regulation (often said of the DSA’s horizontal rules) aims at uniform rules, leaving less room for divergent national measures—subject to express coexistence clauses such as DSA Article 2(4).

“Complementary” EU measures (DSA Article 2(4) and Recital (10))

The DSA anticipates other EU instruments that either regulate matters outside the DSA or specify and complement it. The core dispute is whether AVMSD Article 28b measures, implemented via the Code, fall within permitted “complementary” regulation or impermissibly conflict with the DSA.

Access control vs preclusion

“Access control” suggests restricting who can view content (e.g., age-gating). “Preclusion” suggests preventing the uploading/sharing of certain content in the first place. The certified questions ask whether AVMSD/DSA allow the latter approach through terms-and-conditions obligations.

“Lawful but harmful” vs “illegal”

Some content may be legal but still harmful (especially to minors). The principal judgment treated AVMSD protections as extending beyond illegal content, which is important to assessing the legitimacy of Code measures aimed at harm prevention.

Legal certainty

A general EU-law principle requiring rules to be sufficiently clear and precise so affected parties can understand their rights and obligations. The principal judgment considered the Code’s specificity relevant to this requirement.

5) Conclusion

This judgment establishes a notable precedent in Irish media/online safety judicial review procedure: where a High Court decision turns on the high-stakes interaction between the DSA’s harmonised framework and AVMSD-based sectoral regulation of VSPS, the resulting points of law may satisfy the stringent s.38(6) gateway for appeal.

The Court’s certification of six tightly framed questions channels the appeal towards the central legal fault-line—whether, and to what extent, a national competent authority may impose AVMSD Article 28b-based terms-and-conditions obligations (including content preclusion and suspension mechanisms) consistently with the DSA’s structure, Recitals, and Article 14 fundamental-rights-sensitive enforcement model.