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X Internet UnLtd Company v Coimisiun Na Mean [No. 2] (Approved)
Factual and Procedural Background
This is an application by Company A (the Applicant) for a certificate to appeal under s.38 of the Broadcasting Act 2009 against a prior High Court judgment ("the principal judgment") concerning the validity of provisions in the Online Safety Code ("the Code") that address terms and conditions and suspension measures for video-sharing platform services (VSPS). Company B is the Respondent. The principal judgment held that sections 12.1, 12.6–12.9 and 13.6–13.9 of the Code were within the vires of Article 28b of the AVMSD as transposed in the 2009 Act and were not in impermissible conflict with the Digital Services Act (DSA). Judge [Last Name] delivered the judgment on 20 January 2026 and, applying the statutory test in s.38(6), certified specified legal questions for determination by the Court of Appeal.
Legal Issues Presented
- Whether the Digital Services Act (having regard inter alia to Recitals (4), (9) and (10) and Articles 1, 2(4), and 14) permits the Competent Authority to adopt provisions under Article 28b(1) and 28b(3) of the AVMSD (such as section 12.1 of the Code) requiring a VSPS provider to include in terms and conditions restrictions precluding users from uploading or sharing "restricted video content" and "restricted indissociable user-generated content" rather than imposing access-control measures, in order to protect minors' physical, mental or moral development?
- If not, whether the DSA (having regard inter alia to the same recitals and articles) permits the Competent Authority to adopt such provisions in the alternative pursuant to Article 28b(6) of the AVMSD?
- Whether the DSA (having regard inter alia to the same recitals and articles) permits the Competent Authority to adopt provisions (such as section 12.1) precluding uploading/sharing where the "risk" under the Code's "risk test" may attach to a child or an adult, given the Commission's decision to protect minors?
- If not, whether the DSA permits adoption of such provisions in the alternative pursuant to Article 28b(6) where the "risk" may attach to a child or an adult?
- Whether the DSA (having regard inter alia to the same recitals and articles) permits the Competent Authority to adopt provisions pursuant to Article 28b(1) and 28b(3) (such as sections 12.6–12.9 and 13.6–13.9 of the Code)?
- If not, whether the DSA permits adoption of those provisions in the alternative pursuant to Article 28b(6) of the AVMSD?
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Case A [2025] IEHC 3 | Interpretation of similar statutory language governing certification of appeals. | Cited as a recent authority illustrating principles applicable to s.38(6)-type certification. |
| Case B [2023] IEHC 9 | Judicial treatment of comparable statutory phrasing in the planning/appeal context. | Included among authorities supporting the general approach to certification and finality. |
| CHASE v The Board [2022] IEHC 231 | Objective of finality, certainty and expedition in judicial review challenges; sparing use of appellate process. | Relied on for the proposition that the appellate jurisdiction should be used sparingly. |
| Case C [2006] IEHC 250 | Authority on certification principles in judicial review contexts. | Included in the panel of authorities informing the applicable principles. |
| Case D [2020] IEHC 429 | Relevant case-law on certification and procedure. | Referenced among the body of authorities considered. |
| Case E [2025] IEHC 3 | Authority referenced on certification principles (citation to a High Court judgment). | Cited in the review of authorities informing the statutory test. |
| Case F [2024] IEHC 476 | Recent authority on related certification issues. | Referred to as part of the case-law establishing applicable principles. |
| Unreported High Court ruling (Judge [Last Name], 9 October 2024) | Previous High Court consideration of ss.38(5) and (6) in a related context. | Noted as a prior ruling addressing the same statutory provisions. |
Court's Reasoning and Analysis
The court commenced by identifying the statutory framework: s.38(5)–(7) of the 2009 Act and the cumulative test in s.38(6) requiring a point of law of exceptional public importance and that it be desirable in the public interest that an appeal be taken. The court extracted general principles from prior authorities emphasizing finality and that certification should be sparing. The court set out four specific principles governing certification (including that the point must emanate from the decision, transcend case-specific facts, be dispositive, and involve uncertainty or evolving law).
The judgment then summarised the principal judgment's findings: that sections 12.1, 12.6–12.9 and 13.6–13.9 of the Code (Part B) were within the vires of Article 28b of the AVMSD as transposed by the 2009 Act; that those provisions complemented rather than conflicted with the DSA; and that the relationship between the AVMSD and the DSA was governed by Article 2(4) and relevant recitals which permit other Union measures to specify or complement the DSA. The court noted specific findings in the principal judgment on (inter alia) Article 14 of the DSA, Article 28b(3) of the AVMSD, legal certainty in the form and methodology of the Code, the treatment of minors within Article 28b and Article 6a(1) of the AVMSD, and the distinction between "lawful but harmful" and "illegal" content.
Applying the statutory test and those principles to the principal judgment, the court concluded that the principal judgment involved points of law of exceptional public importance and that it was in the public interest that an appeal be heard; it therefore certified six questions for the Court of Appeal.
Holding and Implications
CERTIFIED FOR APPEAL
Holding: The High Court certified six discrete questions of law (set out above) under s.38(6) as points of law of exceptional public importance and desirable for determination by the Court of Appeal.
Implications: The certification permits a limited appellate review by the Court of Appeal solely on the certified points (pursuant to s.38(7)). The immediate practical effect is that those questions may be appealed; the judgment made no substantive alteration to the principal judgment's conclusions beyond certification. The court provisionally made no order as to the costs of the certificate application.
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