“Complementary not Conflict” – High Court Upholds Coimisiún na Meán’s Content-Restriction Code and Clarifies the Interaction between the Digital Services Act and AVMSD

1. Introduction

In X Internet UnLtd Company v Coimisiún na Meán [2025] IEHC 442, Mr Justice Conleth Bradley delivered a landmark judgment that cements the legal interplay between the new Digital Services Act (DSA) and the long-standing Audiovisual Media Services Directive (AVMSD). Twitter’s corporate successor (“X”) challenged an Online Safety Code that forces video-sharing platforms to incorporate outright content prohibitions and suspension mechanisms into their terms and conditions. X argued that (i) the Code exceeded what the AVMSD requires, and (ii) the DSA’s full-harmonisation mantra closed the regulatory space for additional national rules. The Court rejected both arguments and upheld the Code in toto.

The decision is the first Irish (and among the first EU) rulings to define the boundaries between the DSA’s horizontal, fully-harmonised regime and “vertical” EU acts such as the AVMSD. It confirms that national regulators can, using AVMSD powers, impose proportional content control measures—even absolute bans—alongside the DSA’s transparency-oriented obligations.

2. Summary of the Judgment

The High Court dismissed X’s judicial-review application and refused all reliefs.
Sections 12.1, 12.6-12.9 and 13.6-13.9 of the Online Safety Code—which (a) forbid uploading particular “restricted” content and (b) oblige platforms to suspend repeat infringers—are within the powers conferred by the Broadcasting Act 2009 (as amended) and Article 28b AVMSD.
The Court held that Article 2(4) DSA deliberately leaves room for (and even contemplates) complementary Union acts, expressly naming the AVMSD. Therefore, the DSA’s “full harmonisation” does not oust stricter national measures taken under the AVMSD.
Article 14 DSA governs how terms and conditions must be presented and enforced, but it does not limit what substantive restrictions a Member State may require via lex-specialis instruments.
Content that merely “may impair” minors can legitimately be subject to outright prohibitions where evidence shows access-control tools are insufficient.
No conflict exists between the Code’s suspension provisions and DSA Articles 23 or 35; the Code expressly yields where those provisions bite.

3. Analysis

3.1 Precedents and Authorities Cited

Tumblr Inc v Coimisiún na Meán [2024] IEHC 366 – confirmed interpretative approach to AVMSD and recognised EU Charter relevance.
European Commission v Ireland C-679/22 – CJEU description of AVMSD’s protective aims; used to contextualise Member State obligations.
CJEU Jurisprudence on Lex Specialis – notably Hörmann Reisen C-292/15 supporting precedence of sector-specific rules over general ones.
General principles from Digital Rights Ireland, Irish Ferries, etc., on purposive interpretation and Charter conformity.

3.2 Legal Reasoning

Interpretative Framework
The Court adopted the well-settled EU method: text, context, purpose, and legislative history. It paralleled that with recent Irish Supreme Court guidance (B.M & J.M).
Article 2(4) DSA as the “Legislative Prism”
Justice Bradley treated Article 2(4) as a bifurcated clause:
(a) Union acts regulating other aspects of intermediary services.
(b) Union acts that “specify and complement” the DSA.
The AVMSD falls squarely into limb (b); therefore, measures adopted under it are presumed compatible unless a direct conflict exists.
Lex Specialis & Harmonisation
The AVMSD is lex specialis to the DSA’s lex generalis regarding video-sharing platforms. Full harmonisation under the DSA is horizontal; it does not nullify vertical, content-specific rules authorised elsewhere in EU law.
Scope of “Appropriate Measures” under Article 28b AVMSD
The Court rejected X’s view that only access-control (age-gating, parental controls) is permissible. Article 28b(3)(a)&(b) explicitly allow Member States to require platforms to include and apply substantive restrictions in their terms & conditions. The phrase “as appropriate” affords discretion, and the strictest measures are justified for the “most harmful content.”
Interface with Article 14 DSA
Article 14 concerns transparency and fair enforcement of whatever restrictions exist; it does not freeze the substantive content of those restrictions. Hence, mandating bans via the Code does not conflict with Article 14 as long as platforms enforce them diligently and proportionately—requirements mirrored in sections 12.7/13.7.
Proportionality & Charter Rights
The Court was satisfied that the Commission’s extensive consultation, evidence gathering (IPSOS B&A surveys, Wagner-Hatfield reports), and graduated enforcement (warnings → time-limited suspensions) demonstrated proportionate interference with freedom of expression. Civic-discourse carve-outs (s. 12.12) further safeguarded political speech.

3.3 Likely Impact

Regulatory Road-Map – National regulators across the EU may replicate Ireland’s model, confident that AVMSD-based codes can coexist with, and go beyond, DSA baselines.
Platform Compliance – VLOPs must review Irish terms & conditions before November 2025 (Part B commencement) and potentially tailor global content-moderation pipelines to Irish (and ultimately EU-wide) standards.
Future Litigation – The judgment’s “complementary doctrine” sets a persuasive precedent for any challenge alleging DSA pre-emption of sector-specific EU acts (e.g., Terrorist Content Regulation).
EU Legislative Drafting – Confirms that express cross-references like Article 2(4) DSA are effective in preserving multilayer regulation; legislators may adopt similar wording in AI and Data Acts.

4. Complex Concepts Simplified

Full vs. Minimum Harmonisation – “Full” means Member States generally cannot add new rules on the same topic; “minimum” means they can adopt stricter rules. However, the DSA’s full harmonisation is limited to its own subject-matter; other EU acts can still apply.
Lex Specialis – When two norms overlap, the more specific (specialis) prevails over the more general (generalis). Here, AVMSD (video-sharing) overrides DSA (all intermediaries) where both speak.
Access-Control vs. Content-Control – Access-control limits who can view content (age gates). Content-control determines whether content may exist on the service at all (take-down/ban).
Risk Test – A functional filter: content foreseeably risking life or serious physical/mental harm to any person is flagged as “restricted.” This triggers the strictest measures in the Code.

5. Conclusion

The High Court has delivered a sophisticated blueprint for reconciling the EU’s newest digital law (DSA) with its pre-existing, sector-specific instruments. By confirming that the AVMSD empowers Member States to mandate outright content bans and associated enforcement machinery, the Court ensures that protective ambitions for children and the wider public do not evaporate under the DSA’s harmonisation umbrella. Platforms must now treat AVMSD-driven codes as hard law, not optional guidance, and regulators can legislate boldly—provided they respect proportionality, fundamental rights, and clear legislative drafting.

The immediate practical upshot: Irish users, especially minors, are set to benefit from a safer video-sharing environment, while global platforms face another layer of mandatory content-moderation obligations that could shape community standards well beyond Ireland’s shores.