'X' asks High Court to quash Coimisiún na Meán decisions

High Court Reporters

Elon Musk’s social network platform has accused Ireland’s media watchdog of engaging in “regulatory overreach” in its approach to restrictions on certain video content.

Twitter International Unlimited Company, which operates ‘X’, alleges in new High Court proceedings that Coimisiún na Meán’s new Online Safety Code contradicts Irish law requirements for protecting and balancing fundamental rights, particularly freedom of expression.

The company wants the court to quash the commission’s October 10th decision to adopt certain sections of the Online Safety Code, which applies binding rules to video-sharing platforms headquartered in Ireland. The code obliges the platforms to protect people, especially children, from harmful video and associated content.

The company is further asking the court to overturn Coimisiún na Meán’s decision to apply the code to X.

On Monday, Twitter International secured the court’s permission to these decisions judicially reviewed. Ms Justice Mary Rose Gearty said the case appeared to contain “arguable” grounds and therefore met the threshold for its continuation.

The lawsuit takes particular issue with a section of the code that requires video-sharing platforms to preclude users from uploading or sharing video the code defines as “restricted”.

Falling under the code’s “restricted” heading is video content that bullies or humiliates a person or that promotes eating disorder behaviour, suicide, self-harm or behaviour prejudicial to the safety of children, including dangerous challenges.

Twitter International claims the definition is “broadly framed” and capable of encompassing a “wide spectrum of content, including legal content”.

The company notes that the EU’s Audiovisual Media Services Directive draws a clear distinction between illegal content, which includes incitement to hatred, and “legal but harmful” content.

Video-sharing platforms must prohibit illegal content, but the directive envisages that legal but harmful content will be subject to access restrictions to protect children, the company says.

It claims Coimisiún na Meán’s “absolute prohibition” on “restricted” content, with no discretion afforded to the company, is contrary to requirements of Ireland’s Digital Services Act.

The company stresses that it does not believe prohibition of restricted content could never be a proportionate interference with freedom of expression rights.

The firm says its terms and conditions already prohibit some content, such as promotion of suicide and self harm. Having conducted an assessment of competing rights, the firm is satisfied such restrictions are proportionate.

However, the code does not permit companies to conduct a balancing of rights assessment to determine what mitigations would be appropriate for certain “restricted” content, it says, arguing that this is contrary to the Digital Service Act.

Twitter International also alleges that the commission went too far by putting in place measures to ensure video-sharing platforms enforce their own terms and conditions.

The court heard Coimisiún na Meán wants an early hearing of the case, which will be mentioned again before the court next February.