Tumblr Inc. v Coimisiún na Meán: Establishing the Essential Functionality of VSPS under the AVMS Directive

Introduction

In the High Court of Ireland's case Tumblr Incorporated v Coimisiún na Meán (Approved) ([2024] IEHC 366), Tumblr Inc. challenged the designation of its platform as a Video Sharing Platform Service (VSPS) under the Broadcasting Act 2009, as amended by the Online Safety and Media Regulation Act 2022. The central issue revolved around whether Tumblr's video-sharing functionality constituted an "essential functionality" as defined by the Revised Audiovisual Media Services Directive (AVMS Directive) and thereby subjected the platform to regulatory oversight.

Summary of the Judgment

Justice Siobhán Phelan delivered the judgment on June 20, 2024, concluding that Coimisiún na Meán (the Irish Media Commission) correctly designated Tumblr as a VSPS. The court found that Tumblr's video-sharing features, though quantitatively minor compared to other content types, played a significant role in the platform's functionality, user engagement, and monetization strategies. The decision emphasized the necessity of a holistic assessment combining both qualitative and quantitative factors, as guided by the European Commission's Guidelines on the AVMS Directive.

Analysis

Precedents Cited

The judgment extensively references several key European Court of Justice (ECJ) cases to interpret the AVMS Directive:

• Case 14/83 Von Colson and Kamann: Established principles for interpreting EU directives, emphasizing the purpose and objectives over literal interpretations.
• Case C-106/89 Marleasing: Highlighted the need for directives to be interpreted in a way that ensures their effectiveness across member states.
• Joined Cases C-397 to 403/01 Pfeiffer & Others: Further reinforced the teleological approach to directive interpretation.
• Case C-573/17 Poplawski: Illustrated the application of protection principles within media services directives.

These precedents collectively underscore the High Court's approach to interpreting the AVMS Directive in a manner that fulfills its protective objectives, particularly regarding user safety and content regulation.

Legal Reasoning

The court's legal reasoning hinged on the definition of a VSPS within the AVMS Directive, which requires that the principal purpose or an essential functionality of the service is devoted to providing audiovisual content to the public. The High Court affirmed that:

• The presence of video-sharing features, even if quantitatively minor, can constitute an essential functionality if they significantly impact user experience and platform dynamics.
• A comprehensive assessment, as per the European Commission’s Guidelines, necessitates evaluating both qualitative and quantitative aspects of the service.
• The indirect monetization of video content through advertisements and user engagement metrics further substantiates the essentiality of video functionality.

Justice Phelan emphasized that the determination of essential functionality should not rely solely on the volume of video content but also on its role in shaping the platform’s utility and attractiveness to users.

Impact

This judgment reinforces the interpretation of the AVMS Directive, emphasizing that regulatory oversight can be justified even when specific functionalities are not predominant in quantitative terms. It sets a precedent for:

• Assessing media platforms based on the functional significance of their features rather than mere content volume.
• Encouraging a balanced approach that integrates both qualitative influences and quantitative data in regulatory assessments.
• Affirming the authority of national regulators to designate services as VSPS when they meet essential functionality criteria, thereby subjecting them to content regulation aimed at protecting users.

Complex Concepts Simplified

Video Sharing Platform Service (VSPS)

A VSPS is defined under the AVMS Directive as a service whose main purpose or a key functionality is to provide audiovisual content, such as user-generated videos, to the public. This includes platforms where content organization is managed by algorithms rather than editorial oversight.

Essential Functionality

Essential functionality refers to a core feature of a service that is crucial for its operation and user engagement. In the context of VSPS designation, it pertains to the extent to which video-sharing capabilities are integral to the platform's purpose.

Conclusion

The High Court upheld Coimisiún na Meán's designation of Tumblr as a VSPS, affirming the necessity of a nuanced evaluation that appreciates the functional importance of video-sharing features beyond their quantitative presence. This decision underscores the commitment to user protection and the adaptability of regulatory frameworks in addressing evolving media landscapes.

The judgment serves as a critical reference point for future cases involving media service designations, highlighting the importance of balanced assessments that consider both the qualitative impact and quantitative metrics of platform functionalities.