Elon Musk and X granted High Court permission to challenge Comisiún na Meán investigation
High Court Reporter
Elon Musk and social media giant 'X' have been granted permission by the High Court to challenge an investigation by Irish media watchdog Comisiún na Meán.
The investigation is into whether X, formerly Twitter, contravened the Digital Services Act regarding complaint procedures at the messaging site.
At the High Court this week, lawyers for multi-billionaire Mr Musk, who is the first named appellant, and X Holdings Corp, which is the second named appellant, successfully applied to Ms Justice Mary Rose Gearty to challenge the investigation.
The appellants also successfully applied for a stay on the investigation until the challenge is heard next year.
Last month, the commission announced it had commenced a formal investigation "into the provider of the X online platform under the EU Digital Services Act (DSA). The investigation will assess whether X has contravened Article 20 of the DSA".
Article 20 of the DSA deals with internal complaint-handling systems operated by larger online platforms.
In a statement on their website, the commission said it was investigating whether people using the site are able to appeal X’s decisions not to remove content when they report something that they think breaches X’s terms of service.
The commission said it was also looking into whether people are properly informed of the outcome of a report they make and whether they are informed about their right to appeal the decision. They are also investigating whether X has an internal complaints mechanism that is easy to access and is user-friendly.
However, Mr Musk and X Holdings Corp submitted to the High Court that they are not the provider of X's "service" in the EU and are based in the US.
In grounding statements for their application for judicial review, Mr Musk's correspondence address is given as Excession LLC, 2110 Ranch Road 620 South, Austin, Texas, USA, while X Holdings is listed as Bastrop, Texas.
The two applicants claim that neither of them "provide the X Service in the EU, or have any contractual relationship relating to the X Service" relating to recipients of the service in the EU.
The applicants submit that the notice party in their applications, X Internet Unlimited Company (XIUC), is the provider of the X Service to users in the EU.
XIUC's address is listed as Cumberland Place, Fenian Street, Dublin 2.
The applicants submit that the European Commission has already designated XIUC as the only provider of the service in the EU.
The applicants submit that the commission acted beyond its powers in commencing the investigation without determining whether Mr Musk or X Holdings "are the relevant intermediary service providers within the Act".
Mr Musk and X Holdings are seeking orders from the court quashing the ordering of the investigation, quashing the notice of the commencement of the investigation and an order prohibiting the commission from proceeding with the investigation.
A similar order was granted by Ms Justice Gearty for XIUC, who also seeks to challenge the investigation. XIUC submits that the commission acted beyond its powers in that the "authorising officer" unlawfully varied the scope or terms of the investigation from those fixed by the "authorised person".
XIUC also claims the direction grounding the investigation is "ambiguous and void for lack of legal certainty, in breach of fair procedures, and in breach of transparency requirements". It further claims the notice of the investigation fails to state "particulars" of suspected contraventions.
XIUC has also named Mr Musk and X Holdings as notice parties in its challenge.
Ms Justice Gearty granted both applications to seek leave for judicial review and put a stay on the investigation until the matter appears again in court in the new year.
