The High Court has formally granted microblogging site Tumblr permission to challenge a decision to include it in a list of 10 “video-sharing platforms” to be regulated under a new online safety code.
Tumblr claims it is "clearly not" a video-sharing platform service (VSPS) and says its designation as such by Coimisiún Na Mean amounts to an error of law. The company says it should not be put in the same bracket as platforms such as YouTube.
The court fixed the hearing of its action against Coimisiún Na Mean, whose functions include the regulation of online safety in the State, to a date in May.
Ms Justice Niamh Hyland, who granted the US company permission to bring its judicial review action against An Coimisiún Na Mean, accepted that the case is urgent.
The judge said the matter should be heard directly after a similar but separate challenge brought by another online platform, Reddit, against Coimisiún Na Mean.
That action has been fixed for hearing in May. Tumblr's case, the judge said, should follow on once Reddit's action has concluded.
The court accepted that the cases should not be heard together, due to factors including legal differences in the cases and the types of services provided by the Tumblr and Reddit platforms.
Ms Justice Hyland said it would make sense if both cases were heard by the same judge.
Coimisiún Na Mean is expected to contest both matters.
In its action, Tumblr Inc, a US-registered microblogging site, seeks orders quashing Coimisiún Na Mean's decision on December 28th last year designating Tumblr as a VSPS.
It claims that it is not a VSPS and should not be subjected to the same regulatory requirements as platforms that publish and share a lot of videos.
Such platforms, Tumblr says, are very different in terms of size, risk profile and content compared to what it offers.
Despite its designation as such Tumblr argues that video on its platform is at best a minor and ancillary feature.
The very low rates of videos on the platform makes this apparent, it claims.
It also argues that there was a fundamental failure on Coimisiún Na Mean's part to engage with data supplied to it by Tumblr, nor did it explain why this material was disregarded.
Coimisiún Na Mean did not explain what weight it gave to factors, including the perspective of Tumblr users, before it arrived at its decision to designate it as a VSPS, it is also claimed.
Represented by Emily Egan McGrath SC, with Claire Hogan BL, Tumblr also seeks declarations from the court, including that Coimisiún Na Mean's decision is invalid and misinterprets and misapplies the definition of a VSPS under EU law and the 2009 Broadcasting Act.
It further seeks declarations that the decision is incompatible with articles of the Charter of Fundamental Rights of the European Union, and with the general principles of EU Law.
