Reddit Incorporated v Commisiun na Mean (Approved)

Factual and Procedural Background

These proceedings concern a judicial review challenge brought by the Applicant, a US-incorporated social media platform provider ("Plaintiff"), against the Respondent, the competent authority in the State responsible for regulating video-sharing platform services ("VSPS") under the Revised AVMS Directive as transposed by the Broadcasting Act 2009 (as amended). On 29 December 2023, the Respondent designated the Plaintiff as a VSPS under the relevant legislation, thereby subjecting it to online safety codes. The Plaintiff seeks to quash this Designation Decision on grounds including jurisdictional error and misapplication of the essential functionality test under the Revised AVMS Directive and domestic law.

The Plaintiff operates a forum-based social media platform enabling users to create communities ("subreddits") where various content types, including videos, are shared and consumed. The Respondent's designation followed a statutory process involving consultation, information requests, and detailed analysis of the Plaintiff's service and its video content. The Plaintiff contends that the Respondent erred in law and fact in designating it as a VSPS, particularly in relation to the scope of jurisdiction and the treatment of video content hosted externally but made accessible through the platform.

Procedurally, the judicial review was initiated by ex parte application in January 2024, with leave granted after notice to the Respondent. The proceedings included detailed pleadings, affidavits, and submissions. The Respondent filed a comprehensive Statement of Opposition supported by affidavit evidence, and the Plaintiff challenged the admissibility of ex post facto expert evidence tendered by the Respondent.

Legal Issues Presented

1. Whether the Respondent erred in law in determining that the Plaintiff is under the jurisdiction of the State pursuant to Article 28a of the Revised AVMS Directive and section 2B of the 2009 Act, given the Plaintiff’s corporate structure and the establishment of its subsidiary in the State.
2. Whether the Respondent erred in law or assessment by designating the Plaintiff as a VSPS without properly distinguishing between audiovisual programmes and user-generated videos in its essential functionality test.
3. Whether the Respondent erred by including non-native videos, specifically embedded and hyperlinked videos hosted on third-party platforms, within the scope of audiovisual programmes or user-generated videos in the designation assessment.
4. Whether the Respondent misinterpreted or misapplied the European Commission (EC) Guidelines on the essential functionality criterion, including the treatment of quantitative and qualitative data, monetisation, and tools enhancing video content visibility.
5. Whether the ex post facto expert evidence tendered by the Respondent is admissible in judicial review proceedings challenging the designation decision.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff contended that it is not properly subject to the State’s jurisdiction because its US-incorporated parent company is not established in the State in accordance with EU law principles and the E-Commerce Directive, and its Irish subsidiary does not provide relevant online services to end users.
• The Plaintiff argued that the Respondent misapplied the essential functionality test by treating video content accessible via embedded or hyperlinked videos as relevant audiovisual content, whereas only “native video” uploaded and hosted on the platform should be considered.
• It was submitted that including embedded and hyperlinked videos results in regulatory overreach, potentially subjecting a vast array of online services to VSPS regulation and causing double regulation of content hosted elsewhere.
• The Plaintiff asserted that the Respondent failed to provide adequate reasons or evidential basis for its findings, including failing to distinguish between audiovisual programmes and user-generated videos and failing to properly apply the EC Guidelines.
• The Plaintiff challenged the admissibility of ex post facto expert evidence introduced by the Respondent, contending that such evidence was not available at the time of the decision and should not supplement the decision-maker’s reasons.

Respondent's Arguments

• The Respondent maintained that jurisdiction is properly established under section 2B of the 2009 Act, which transposes Article 28a of the Revised AVMS Directive, providing for deemed jurisdiction where a VSPS provider has a subsidiary undertaking established in the State.
• It was argued that the Irish subsidiary maintains a stable and effective link with the economy of the State, satisfying the statutory test for deemed establishment and jurisdiction.
• The Respondent contended that the essential functionality test was correctly applied, relying on detailed quantitative and qualitative data, its own observations, and the EC Guidelines.
• Embedded videos are properly considered user-generated videos within the meaning of the Directive and domestic law because they are made available to users on the platform and are integrated with other content, regardless of hosting location.
• The Respondent rejected the Plaintiff’s distinction between native, embedded, and hyperlinked videos as determinative, noting that while hyperlinked videos were not relied upon in the designation decision, embedded videos fall within scope.
• The Respondent argued that the EC Guidelines were carefully considered and applied, and that the decision was supported by sufficient evidence and reasoning.
• The Respondent submitted that ex post facto expert evidence was not necessary for the Court to understand the issues and that the decision must stand or fall on the material before the Respondent at the time of the decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by addressing the admissibility of ex post facto expert evidence tendered by the Respondent, concluding that the decision must stand or fall on the material before the Respondent at the time of the designation. The Court found no necessity for expert evidence to understand or assess the essential functionality test or jurisdictional issues.

In interpreting the Revised AVMS Directive and its transposition, the Court emphasized the duty to interpret domestic law consistently with the Directive’s broad aims of protecting users from harmful audiovisual content and ensuring effective regulation of VSPS providers. The Court noted the Directive’s objective to cover both providers established within the EU and those not established but linked via subsidiaries or parent undertakings, as reflected in the special jurisdictional rules under Article 28a and section 2B of the 2009 Act.

Regarding jurisdiction, the Court found that the Respondent correctly applied the special deemed jurisdiction test, establishing jurisdiction over the Plaintiff by virtue of its Irish subsidiary’s stable and effective link with the economy of the State. The Court rejected the Plaintiff’s narrower interpretation requiring the subsidiary itself to be a provider of information society services to end users and dismissed alternative tests based on central administration or other EU case law irrelevant to the Directive.

On the essential functionality test, the Court held that the Respondent properly applied the EC Guidelines and the statutory definitions. It found no error in the Respondent’s approach of treating audiovisual programmes and user-generated videos collectively and that the Plaintiff was sufficiently apprised of the content subject to designation. The Court rejected the Plaintiff’s late attempt to narrow the scope of relevant content and found that the Respondent’s detailed reasoning and data analysis satisfied the duty to give adequate reasons.

Concerning the treatment of non-native videos, the Court distinguished between native videos (uploaded and hosted on the platform), embedded videos (streamed through the platform but hosted elsewhere), and hyperlinked videos (links directing users off-platform). It accepted the Respondent’s position that embedded videos fall within the regulatory scope as user-generated videos because they are made available and viewed on the platform, satisfying the Directive’s criteria. The Court found that even if embedded videos were excluded, the designation would still be justified based on native video content alone.

The Court declined to decide on the status of hyperlinked videos, noting that the Respondent had not relied on such content in the designation decision and that this issue was not necessary to resolve given the sufficiency of native video content.

In interpreting the EC Guidelines, the Court acknowledged the Respondent’s discretion and broad margin of appreciation in assessing essential functionality on a case-by-case basis. It held that the Respondent properly considered all relevant indicators, including the reach, monetisation, and tools enhancing video content, and that no manifest error or procedural unfairness was demonstrated.

Finally, the Court concluded that the designation decision was supported by a sufficient evidential basis, was consistent with the Directive’s objectives, and was not vitiated by any legal or factual error.

Holding and Implications

The Court dismissed the Plaintiff’s challenge and refused the relief sought.

The Court held that the Respondent lawfully exercised jurisdiction over the Plaintiff under the special deemed jurisdiction provisions of the Revised AVMS Directive and the 2009 Act. The designation of the Plaintiff as a VSPS was proper, supported by detailed evidence and a reasoned application of the essential functionality test in accordance with the Directive and EC Guidelines. The Court confirmed that embedded videos streamed through the platform fall within the regulatory scope, and that the decision was sustainable even on the basis of native video content alone.

This decision directly affects the parties by upholding the Respondent’s authority to regulate the Plaintiff under the Online Safety and Media Regulation Act 2022 in line with EU law. No new legal precedent beyond the application of existing principles was established, and the ruling reinforces the broad regulatory reach intended by the Revised AVMS Directive for effective protection against harmful audiovisual content online.