High Court refuses stay in judicial review of Irish media regulator's handling of social media complaints.

THE HIGH COURT RECORD NO. 2025 / 1609 JR [2026] IEHC 127 BETWEEN

X INTERNET UNLIMITED COMPANY Applicant and

COIMISIÚN NA MEÁN Respondent

___________________________________

THE HIGH COURT

RECORD NO. 2025 / 1731 JR BETWEEN

X INTERNET UNLIMITED COMPANY Applicant and

COIMISIÚN NA MEÁN Respondent

Judgment of Mr Justice Cian Ferriter delivered on 4 March 2026

Introduction

1. In these two sets of judicial review proceedings, the applicant challenges five decisions of the respondent (“An Coimisiún”) relating to complaints made to An Coimisiún by users of the applicant’s social media platform X (formerly Twitter).

2. In proceedings 2025/1609JR (“the 1609JR proceedings”) the applicant challenges four decisions taken by An Coimisiún on 2 October 2025 under section 201(4) of the Broadcasting Act 2009 as amended (“the 2009 Act”). Section 201 of the 2009 Act implements article 53 of the Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) (the “DSA”). Section 201 and article 53 relate to complaints made by recipients of services such as the hosting service provided via the X platform by the applicant.

3. In proceedings 2025/1731JR (“the 1731JR proceedings”) the applicant challenges a

decision taken by An Coimisiún on 21 October 2025 also under section 201(4) of the 2009 Act.

4. The five decisions relate to complaints made to An Coimisiún by users of the X service.

The complaints variously engaged issues under articles 16, 17 and 20 of the DSA which deal inter alia with obligations imposed on providers of hosting services (including online platforms) in relation to illegal content notification systems, provision of statements of reasons and the provision of an effective complaints handling system respectively.

5. In the case of all five decisions, An Coimisiún decided to pass the complaint information the subject of the decision to its “Supervisory Team” pursuant to Section 201(4)(d) of the 2009 Act (“s.201(4)(d)”) so that the supervisory team could further consider the complaint as part of its overall functions including monitoring compliance with regulatory obligations and taking formal compliance action when warranted.

6. The applicant’s challenge to each of the decisions is centred on a contention that An Coimisiún’s decisions to refer the individual complaint information to its supervisory team pursuant to s.214(4)(d) is ultra vires and unlawful.

7. This judgment addresses the applicant’s application for a stay on the use by An Coimisiún of any of the relevant complaint information pending the determination of the judicial review proceedings.

8. For the reasons outlined in this judgment, I have decided to refuse the applicant’s stay applications.

The legal context

9. The applicant as the provider of the social media platform X is an intermediary service provider (“ISP”) for the purposes of the DSA. The applicant is also a “very large online platform” (“VLOP”) for the purposes of the DSA. The DSA regulates the liability of ISPs for the provision of their services. Additional regulatory obligations are imposed on VLOPs including, in article 34(1), the obligation “to diligently identify, analyse and assess any systemic risks in the Union stemming from the design or functioning of their service and its related systems, including algorithmic systems, or from the use made of their services.”

10. An Coimisiún was established on 15 March 2023 pursuant to the Online Safety and Media Regulation Act 2022 as Ireland's national regulatory authority with responsibility for overseeing the regulation of broadcasters, video-on-demand providers and ISPs.

11. An Coimisiún is Ireland’s Digital Services Coordinator (“DSC”) for the purposes of the DSA and the 2009 Act. As such, it has responsibility for overseeing the State’s regulatory regime for online safety, known as the “Online Safety Framework”, which includes the DSA.

12. The DSA and the 2009 Act confer various powers on An Coimisiún as DSC to enable it regulate, inter alia, ISPs.

13. Article 53 of the DSA gives users alleging an infringement of the DSA the right to lodge a complaint with their DSC against ISPs and provides that the DSC will assess the complaint.

14. Section 201 of the 2009 Act gives effect to article 53 by providing for a statutory complaint mechanism. It sets out the manner by which DSA complaints must be processed by An Coimisiún, which ensures that the requirements of Article 53 of the DSA are met, specifically the rights of the complainant and the provider to be heard and to receive appropriate information about the status of complaints received.

15. Section 201 provides as follows:

Complaints to Commission concerning Digital Services Regulation.

201.— (1) A person (in this section referred to as “a complainant”) may make a complaint to the Commission, in the manner and form specified by the Commission, that there has been a failure by an intermediary service provider to comply with a provision of the Digital Services Regulation.

(2) An Coimisiún shall carry out an initial assessment of the complaint made under subsection (1) and, having done so, may transmit the complaint to—

(a) the Competition and Consumer Protection Commission where the complaint concerns Article 30, 31 or 32,

(b) the Digital Services Coordinator of establishment, where considered appropriate, accompanied by an opinion, or

(c) the European Commission where the complaint concerns Articles 33 to 42.

(3) An Coimisiún shall notify the complainant where the complaint has been transmitted under subsection (2).

(4) An Coimisiún shall, where it does not transmit the complaint under subsection (2), carry out a further assessment of the complaint and may take any of the following actions:

(a) serve an intermediary service provider a compliance notice under section 139ZZGA;

(b) investigate the complaint in accordance with section 139ZI(1);

(c) dismiss the complaint where An Coimisiún finds—

(i) the complaint is frivolous or vexatious or was not made in good faith, or

(ii) the subject matter of the complaint is trivial;

(d) take such other action in respect of the complaint as An Coimisiún considers appropriate.

(5) An Coimisiún shall notify the complainant and the intermediary service provider to which the complaint relates of the complaint made under this section and of any action proposed by An Coimisiún under subsection (4).

(6) A notification under subsection (5) shall—

(a) include particulars of the complaint,

(b) state that the intermediary service provider to which the complaint relates may make representations under subsection (7), and

(c) specify the date by which any representations shall be made under subsection (7).

(7) An intermediary service provider the subject of a complaint made under subsection (1) and notified under subsection (6) may, within the time specified by An Coimisiún in such notification, make representations to An Coimisiún about such complaint.

(8) An Coimisiún shall have regard to any representations made to it under subsection (7) in deciding whether to proceed with any proposed action under subsection (4).

(9) An Coimisiún shall notify the complainant and the intermediary service provider the subject of the complaint made under subsection (1) in writing of its

decision under subsection (4).”

16. As can be seen, s.201(2) allows for An Coimisiún to carry out an initial assessment of the complaint made under subsection (1); assuming An Coimisiún does not transmit the complaint elsewhere, it then carries out a further assessment. The further assessment process involves An Coimisiún notifying the provider (and the complainant) of any action proposed under s.201(4). The ISP can then make representations which An Coimisiún must consider before making its final decision under s.201(4). Section 2014(d) permits An Coimisiún “to take such other action in respect of the complaint as

[An Coimisiún] considers appropriate". This latter provision is at the heart of the proceedings.

Decisions challenged in the two sets of proceedings

The 1609JR proceedings

17. The four decisions in issue in the 1609JR proceedings (each dated 2 October 2025)

address complaints made over the course of 2024 and 2025 to An Coimisiún by recipients of the X service, alleging (variously) breaches of articles 16, 17 and 20 of the DSA. The complaints decision-making process in each case followed broadly the same structure in accordance with the terms of s.201; An Coimisiún carried out an initial assessment to satisfy itself as to its jurisdiction in relation to the complaint and then carried out a further assessment and set out proposed action. The applicant was invited to and did make representations in respect of the proposed action in each case.

Following consideration of the representations, An Coimisiún proceeded to a final

decision. In each case, An Coimisiún decided in its final decision to pass the complaint information in relation to identified articles of the DSA to its supervisory team pursuant to s.201(4)(d) so that that team might further consider the complaint as part of its overall functions.

18. Each of the final decisions stated that "The objectives of the supervisory team in executing its overall functions include gaining a better understanding of the services and operations of the entities that An Coimisiún regulates, analysing areas in which providers potentially may not be in compliance with their obligations under the DSA and implementing new regulatory regimes to better guide and assist providers in effectively addressing harmful and illegal content".

19. It might be noted that while the final decisions were each expressed in terms of passing the relevant “complaint information” to An Coimisiún’s supervisory team, a number of the initial letters relating to An Coimisiún’s proposed action following further assessment of the complaints proposed that the “complaint” be passed to An Coimisiún’s supervisory team.

20. I should also note that as part of an exchange of correspondence on the complaints, An Coimisiún set out its view in a letter to the applicant on 7 March 2025 that the complaint handling process as provided for in section 201(4) was at an end once An Coimisiún decided to take any of the actions provided for in s.201(4) including referring complaint information to the supervisory team pursuant to s.201(4)(d).

The 1731JR proceedings

21. The 1731JR proceedings concern a challenge to a decision issued by An Coimisiún to the applicant on 21 October 2025 in respect of a complaint made on 5 September 2024 by a complainant alleging breaches of Articles 17 and 20 of DSA. The applicant says that it had suspended the complainant's account due to a violation of its platform manipulation policy in circumstances where a separate X account linked to the account in issue was previously found to have breached the applicant's child sexual exploitation policy.

22. On 4 June 2025, An Coimisiún wrote to the applicant having conducted its initial assessment and further assessment under s. 201 of the 2009 Act, in which it set out its proposed action of passing the complaint information to An Coimisiún’s supervisory team for further consideration on the basis that the matter describing the complaint called into question the applicant's compliance with Articles 17 and 20 of DSA.

Following further representations and correspondence from the applicant, An Coimisiún issued a final decision on the complaint on 21 October 2025 in which it made the decision to send the complaint information and documentation insofar as it related to Article 17 DSA to its supervisory team so that the supervisory team could further consider the complaint as part of its overall functions.

23. The terms of the final decision in this matter were materially identical to the terms of the final decisions in respect of the four complaints the subject of the 1609JR proceedings.

The issues in the judicial review proceedings

24. A number of the grounds of challenge in these proceedings relate to alleged specific breaches of fair procedures and other legal errors in the individual decision making processes. However an overarching ground common to all five decisions and both sets of proceedings is the contention that An Coimisiún cannot lawfully refer information obtained in individual complaint processes to its supervisory team as such an action is ultra vires section 201(4)(d). For ease, I shall refer to this as “the core point”.

25. The court granted leave on an ex parte basis on all grounds advanced in the two proceedings. Interim stays on An Coimisiún’s decisions were granted pending the determination of these interlocutory applications for a stay.

26. While it is of course not the role of the court to determine the merits of the substantive issues in the proceedings in the context of a stay application, it is useful for context to briefly summarise the applicant's case on the core point in these two proceedings and An Coimisiún’s response to that case.

27. The applicant contends that it is not permissible for An Coimisiún to rely on s. 201(4)(d)

to in effect continue to investigate a complaint without having made a decision to open a formal investigation on that complaint pursuant to s.201(4)(b). It will be recalled that s.201(4)(b) provides for the investigation of a complaint “in accordance with section 139ZI(1)”. Section 139ZI is contained in Part 8B of the 2009 Act (which Part is headed “Investigations and Sanctions”) and allows An Coimisiún to direct an authorised officer to carry out an investigation of, inter alia, a suspected contravention by an ISP of designated provisions of the DSA.

28. The applicant contends that the decisions made by An Coimisiún here (“the impugned decisions”) were made ultra vires s.201. If An Coimisiún wishes to launch an investigation under s.139ZI arising from an individual complaint, the appropriate step within jurisdiction is to take a decision to do so under s. 201(4)(b). The applicant contends that An Coimisiún has impermissibly bypassed that route by referring individual complaints to an internal organisational unit within An Coimisiún, which is in essence simply a referral by An Coimisiún to An Coimisiún itself, a step which the applicant says has no statutory basis. It contends that An Coimisiún cannot lawfully seek to investigate the complaint further under s.201(4)(d).

29. The applicant submits that in essence the impugned decisions are non-decisions because they do not either uphold or dismiss the complaints in question but rather impermissibly refer the complaints on to an internal team to allow that team to engage in some form of extra-statutory, open-ended, ill-defined process.

30. The applicant contends that the core point raises a novel issue which is systemic in its scope.

31. An Coimisiún has not yet filed opposition papers in respect of the two proceedings. However, it did outline in oral submissions through counsel its broad position on the applicant's core point.

32. An Coimisiún submits that it is entirely within the broad power contained in s. 201(4)(d)

to refer information obtained by its user complaints team in the context of the evaluation of an individual complaint to a different part of the Commission, being its supervisory team, for the purposes of that team assisting in the discharge of An Coimisiún’s wider functions of assessing broader compliance with the obligations of the DSA. An Coimisiún emphasises that individual complaints can be assessed on a dual role basis. The complaint can be dealt with on its own terms (including instigating an investigation into the individual complaint if deemed appropriate pursuant to s.139ZI arising from the power contained in s. 201(4)(b)) but can also be used to feed into the wider supervisory and monitoring role with which An Coimisiún is tasked by virtue of the terms of the DSA and the 2009 Act. As such, the regulatory model contained in the DSA and the 2009 Act is a different and more flexible one than that contained in earlier statutory regulatory regimes such as the old regime applying to the Data Protection Commissioner under the Data Protection Act 1988 which obliged the DPC to conduct an investigation in respect of every complaint.

33. It points in this regard to Recital 118 of the DSA which provides as follows:-

“In order to ensure effective enforcement of the obligations laid down in this Regulation, individuals or representative organisations should be able to lodge any complaint related to compliance with those obligations with the Digital Services Coordinator in the territory where they received the service, without prejudice to this Regulation’s rules on allocation of competences and to the applicable rules on handling of complaints in accordance with national principles of good administration. Complaints could provide a faithful overview of concerns related to a particular intermediary service provider’s compliance and could also inform the Digital Services Coordinator of any more crosscutting issues….”

34. An Coimisiún says that the broad and flexible powers conferred on An Coimisiún under the DSA and 2009 Act reflect the objective of the DSA to enable more systemic compliance monitoring and enforcement action to be taken beyond an assessment of an individual complaint. Viewed in that way, the decision taken under s.201(4)(d) is entirely consistent with the statutory scheme and not in any way unlawful. An Coimisiún's position is that the individual complaint processes under s.201 are now at an end, that the complaint information has been passed by the user services team of An Coimisiún (which deals with individual complaints) to the supervisory team (which has a broader role in supervising compliance more generally) and that the supervisory team is perfectly entitled both as a matter of law and as a matter of common sense to rely on that information in discharging its wider compliance monitoring role.

Other Proceedings Issued Against An Coimisiún In Respect of the X Service

35. For the sake of completeness, I note that a number of other proceedings have been issued by the applicant and related persons against An Coimisiún in respect of the X service, some of which also raise the s.201(4)(d) issue.

36. In X Internet Unlimited Company v Coimisiún na Meán, Record No. 2025/1831 JR, the applicant challenges an investigation (the "Article 20 Investigation") commenced by An Coimisiún pursuant to section 139ZI of the 2009 Act into suspected contraventions by the provider of the X Service of Article 20 of the DSA which requires ISPs providing online platforms (such as the X Service) to inter alia provide recipients of the service with an "effective internal complaint-handling system" which is "easy to access, userfriendly and enable[s] and facilitate[s] the submission of sufficiently precise and adequately substantiated complaints".

37. In a related set of proceedings, Elon Musk and X Holdings Corp. v Coimisiún na Meán, Record No. 2025/1836 JR (to which the applicant is a notice party) the applicants also challenge (albeit on somewhat different grounds) the Article 20 Investigation. In both of those proceedings, the applicants sought a stay and the contested stay application was heard before the High Court (Dunne J.) on 23 January 2026.

38. The above two sets of proceedings do not involve the s.201(4)(d) issue.

39. In addition to the two sets of proceedings before me, two further sets of proceedings have been issued against An Coimisiún by the applicant which, I am told, raise the s.201(4)(d) issue, being X Internet Unlimited Company v Coimisiún na Meán, Record No. 2026/0046 and X Internet Unlimited Company v Coimisiún na Meán, Record No.

2026/0047. Leave was granted ex parte in respect of each of those proceedings on 23 February 2026.

Procedural History of these two proceedings

40. On 8 December 2025, leave was granted to the applicant in the 1609JR proceedings on an ex parte basis to apply for judicial review for, inter alia, orders quashing the final decisions of 2 October 2025. An interim stay on implementation of the decisions was granted until 23 January 2026. On 12 January 2026, directions were given for the hearing of the stay application on an interlocutory basis, with the interim stay to be continued until 25 February 2026.

41. Leave to apply for judicial review was granted on an ex parte basis in the 1731JR proceedings on 12 January 2026 for, inter alia, an order quashing the final decision in that case with an interim stay also granted on that date until 25 February 2026 pending a hearing and determination of the contested stay application in that case.

42. The contested stay applications were heard together by me on 25 February 2026.

The stay applications

43. The applicant now seeks an order in each of the two proceedings staying the implementation of the impugned decisions; in particular it seeks in each of the proceedings an order staying any use of or reliance upon the complaints or complaint information by An Coimisiún or its supervisory team pending the determination of these proceedings.

44. An Coimisiún resists the applications for a stay.

45. As substantively the same factors are relied upon by the parties in relation to the contested stay applications in each set of proceedings, I am giving this single judgment on the applications in the two sets of proceedings; the decision in this judgment will apply in respect of each of the proceedings.

Legal principles applicable to the stay applications

46. While the legal principles applicable to a stay of a regulatory decision are the subject of a Supreme Court appeal in Tiktok Technology Ltd. v. Data Protection Commission [2025] IESCDET 161, which appeal was very recently heard by the Supreme Court, as matters currently stand the parties accept that the applicable principles are those set out in Okunade v The Minister for Justice [2012] 3 IR 152 (“Okunade”). I will accordingly proceed to consider the stay applications by reference to the Okunade principles.

47. Those principles were set out by Clarke J. (as he then was) at para 104 of his judgment in Okunade as follows:

“(a) The court should first determine whether the applicant has established an arguable case; if not the application must be refused, but if so then;

(b) The court should consider where the greatest risk of injustice would lie. But in doing so the court should:-

(i) Give all appropriate weight to the orderly implementation of measures which are prima facie valid;

(ii) Give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and

(iii) Give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings;

but also

(iv) Give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful.

(c) In addition the court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages.

(d) In addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant's case.”

48. Clarke J (at para 110 of Okunade) emphasised that the default position is that an applicant will not be entitled to a stay or an injunction.

49. In the Supreme Court’s judgment in CC v. Minister for Justice [2016] 2 IR 680, Clarke J considered Okunade and held (para 23) that the overriding aim of the Court in such applications is to minimise the risk of injustice:

“Thus, the overarching principle is said to be one applicable in all cases where a court has to make a short-term and summary decision as to what is to happen pending a fuller hearing. The approach of the court in such circumstances has to be to act in such a way as to minimise the risk of injustice.”

50. In MD v Board of Management of a Secondary School [2024] IESC 11, Collins J summarised the Okunade approach as follows (at paras 2 to 5):

“2. An applicant for judicial review is not entitled to a stay or injunction as a matter of right. Insofar as, in practice, there may previously have been an understanding or presumption that once a public law measure was challenged its implementation should be suspended, any such (mis)understanding was – or ought to have been – dispelled by this Court's decision in Okunade … As Okunade explains, the entitlement of those conferred with statutory or other power or authority to make legally binding decisions is an important part of the structure of any legal order based on the rule of law and it follows that significant weight must be given to permitting measures that are prima facie valid to be ‘carried out in a regular and orderly way’ … at para 92. All due weight needs to be accorded to ‘allowing the systems and processes by which lawful power is to be exercised to operate in an orderly fashion’ (ibid). As the Court also made clear, there may be (and in many cases will be) compelling considerations going the other way. Okunade certainly does not exclude the making of a stay or injunction that suspends or otherwise affects the implementation of a prima facie valid administrative measure. But Okunade counsels that such orders must not be made reflexively or as a matter of routine.

3. That fundamental point is reinforced by this Court's decision in Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65, [2020] 2 IR 1, per O'Donnell J (Clarke CJ, McKechnie, Dunne and O'Malley agreeing) at para 62.

4. Of course, public law measures differ widely in their scope and effect. Some are of general or near-general application: paradigm examples are enactments of the Oireachtas, regulations made under such enactments and public law decisions that affect a broad category of persons or a significant section of society or the economy (such as decisions made by regulators such as ComReg). At the other end of the spectrum, there are measures that affect – at least directly – only a specific individual or a limited number of individuals, such as the deportation orders at issue in Okunade. But in every such case the potential suspension of a presumptively valid public law measure engages considerations of the public interest that – at least generally – do not arise in private law injunction proceedings.

5. It follows that, where a court is asked to make an order having the effect of suspending or otherwise significantly affecting the due implementation of a presumptively valid public law measure – whether in the form of a stay or an injunction – it should do so only after carefully identifying and weighing all of the rights and interests engaged.”

The applicant’s case for a stay

51. The applicant presented its arguments in favour of the grant of a stay in the following way. It submitted that if a stay is not granted An Coimisiún will (on the applicant’s case) engage in "an undefined extra statutory investigative process, the parameters of which are entirely unclear". If the complaints the subject of the impugned decisions and the complaint information derived from those complaints are used in further potential enforcement action by the Commission, that will inevitably lead to such further action being challenged by the applicant which will lead to a waste of the parties’ and the court’s resources. The applicant contends that it is at risk of being vexed by continued investigations and potential further action based on information which it contends cannot be lawfully used as An Coimisiún seeks to use it. The applicant emphasises that the nature of the challenge on the core point brought in these two proceedings goes to the very root of An Coimisiún’s processes; this is not a situation where a procedural unfairness is complained of in an otherwise valid process, which procedural fairness could be rectified; rather, the applicant in these proceedings seeks to challenge the very basis of An Coimisiún being entitled to use the information obtained from the individual complaints processes by transferring it to its supervisory team.

52. While accepting that the case arose in a different context, the applicant relies on the analysis of Ní Raifeartaigh J for the Court of Appeal in Barrett v The Commissioner of An Garda Síochána [2023] IECA 112 (“Barrett”). That case involved an appeal in respect of a refusal by the High Court (in proceedings commenced by plenary summons) to grant an interlocutory injunction restraining the continuation of a disciplinary process into a senior civilian member of An Garda Síochána. The judgment considered the Rowland v An Post [2017] 1 IR 355 (“Rowland”) line of authority dealing with applications for interlocutory relief in the context of ongoing disciplinary processes. In her judgment, Ní Raifeartaigh J considered the principles which could be extracted from Rowland and another related authority, McKelvey v Iarnród Éireann [2019] IESC 79 (“McKelvey”) which also considered an application to prevent a disciplinary process from going ahead. She stated as follows, at para. 83:-

“Thus, two principles may be extracted from Rowland and McKelvey:

1) The court should look at the entirety of the process in question with a view to ascertaining whether the errors of procedure, or other legal errors, alleged by the employee are capable of being corrected by appropriate measures being taken before the process comes to an end; if they are capable of being rectified, the courts should be reluctant to grant the relief sought on grounds of prematurity.

2) However, if the nature of the complaint is such that the defects complained of cannot be cured as the process unfolds, and it is more or less inevitable that any adverse conclusion reached at the end of the process would be bound to be unsustainable in law, prematurity will not be an obstacle to seeking relief while the process is ongoing.”

53. Ní Raifeartaigh J took the view in that case that the plaintiff/appellant's case fell within the second of those two principles on the basis that the appellant's challenges to the process were not merely procedural but "existential" (para. 85). She made clear (at para. 86) that, in so characterising the appellant's case, she was not expressing a view on the strength of the arguments themselves but rather pointing to the nature of the arguments in the context of the prematurity issue (i.e. the question of an attempt to restrain a disciplinary process from proceeding to conclusion being a premature attempt to challenge the process). It should also be noted that her analysis took place in the context of a delay argument; given the nature of the case that the plaintiff there sought to advance, it behoved him to move much more quickly with his interlocutory injunction application than he had.

54. The applicant submits, by analogy, that its case here goes to the very root of the process sought to be engaged in by An Coimisiún of referring complaint information to its supervisory team with a view to that team then potentially using that information in other investigative or enforcement action. The further An Coimisiún embarks down that path, the less likely it will be able to disentangle the invalidly deployed complaint information from other material on which it might lawfully place reliance. It submits that An Coimisiún has not pointed to any convincing or realistic prejudice as to why it could not simply exclude the complaint information from any further processes and rely instead in any such further process on information properly obtained from other sources.

55. The applicant submitted that An Coimisiún’s reliance on the “orderly implementation”

aspect of the Okunade principles (i.e. para 104(b)(i) of Clarke J.’s judgment) should be taken "with something of a pinch of salt" on the basis that An Coimisiún’s concerns about the orderly implementation of its processes were "largely insubstantial". The applicant makes the point in this regard that An Coimisiún is finding its way with new processes under a new statutory regulatory regime. It submits that this is a factor that operates in its favour when weighing the arguments on the stay application; this is new territory for everyone concerned, and not a well-worn groove of administrative law

decision-making where the court can say the decisions are obviously prima facie valid;

in such circumstances it submits that the court should attach significantly less weight to the prima facie validity of the measures taken by the Commission.

56. The applicant also submitted that there is a very significant doubt with regard to the validity of the course of action exemplified in the decisions under challenge and that this litigation will help to bring clarity and certainty for all parties, including complainants and An Coimisiún.

57. The applicant also submitted that An Coimisiún’s invocation of its responsibility to supervise compliance with the rights of users across the EU, as the DSCOE (i.e. the

Digital Servies Co-ordinator of Establishment) for the applicant's X service (the applicant having its place of establishment for the EU in Ireland) is expressed in overly generalised terms with no explanation being provided as to how the ability of An Coimisiún is in fact going to be hindered by the grant of the stay sought in dealing with complaints from other DSCs.

58. The applicant submitted that the orderly operation of the statutory scheme, which is the second aspect referred to by Clarke J in Okunade (para 104(b)(ii)) is better served by granting a stay while the court determines whether the systems and processes of the Commision have been lawfully utilised in these cases and points to the fact that this was a matter which Mulcahy J took into account when weighing the balance on a stay application in his judgment in TikTok Technology Ltd v Data Protection Commission [2025] IEHC 619 at para. 234 (that judgment is at present under appeal to the Supreme Court as referred to earlier).

59. The applicant also submitted that there was a distinct lack of urgency on the part of An Coimisiún in dealing with the complaints the subject of the impugned decisions. If these judicial review proceedings are quickly brought on for hearing, given the lack of urgency by An Coimisiún to date (including, the applicant says, in relation to its defence of these proceedings, where opposition papers have yet to be filed), the balance would be tipped further in favour of the grant of a stay.

60. An Coimisiún for its part submitted that the applicant altogether failed to give appropriate waste to the first two Okunade principles, in particular the weight to be given to the orderly implementation of decisions which are prima facie valid and also the very significant weight to be given to the manifest public interest in the orderly operation by An Coimisiún of the DSA and the 2009 Act given the vital policy underpinning those statutory schemes of protecting the public interest through the proper regulation of the social media environment. An Coimisiún also submitted that the applicant cannot point to any true prejudice in the event that a stay is not granted particularly in circumstances where all that is involved at the moment as a consequence of the impugned decisions is the transmission of certain information to An Coimisiún’s supervisory team for use by the team as part of its wider pool of information relevant to monitoring compliance by the applicant with its overall obligations; any further formal step under the statutory scheme would be the subject of full fair procedures safeguards for the applicant.

Discussion

61. In my view, the applicant's submissions overstate the extent of likely prejudice to it in the event that a stay is not granted, and understate the importance of the orderly implementation of the measures in issue which are prima facie valid and the weight to be given to the public interest in the orderly operation of the important regulatory statutory scheme contained in both the DSA and the 2009 Act.

62. It is important to recall what Clarke J (as he then was) said at para. 92 of his judgment in Okunade:-

“However, there is a further feature of judicial review proceedings which is rarely present in ordinary injunctive proceedings. The entitlement of those who are given statutory or other power and authority so as to conduct specified types of legally binding decision making or action taking is an important part of the structure of a legal order based on the rule of law. Recognising the entitlement of such persons or bodies to carry out their remit without undue interference is an important feature of any balancing exercise. It seems to me to follow that significant weight needs to be placed into the balance on the side of permitting measures which are prima facie valid to be carried out in a regular and orderly way. Regulators are entitled to regulate. Lower courts are entitled to decide.

Ministers are entitled to exercise powers lawfully conferred by the Oireachtas.

The list can go on. All due weight needs to be accorded to allowing the systems and processes by which lawful power is to be exercised to operate in an orderly fashion. It seems to me that significant weight needs to be attached to that factor in all cases. Indeed, in that context it is, perhaps, appropriate to recall what was said by O'Higgins CJ in Campus Oil v Minister for Industry (No 2) [1983] IR

88. At p 107 of the report he said the following:- “The order which is challenged was made under the provisions of an Act of the Oireachtas. It is, therefore, on its face, valid and is to be regarded as a part of the law of the land, unless and until its invalidity is established. It is, and has been, implemented amongst traders in fuel, but the appellant plaintiffs have stood aside and have openly defied its implementation.”

It is clear, therefore, that the apparent prima facie validity of an order made by a competent authority was a factor to which significant weight was attributed.

While the comments of O'Higgins CJ were directed to a ministerial order made under an Act of the Oireachtas it seems to me that there is a more general principle involved. An order or measure which is at least prima facie valid (even if arguable grounds are put forward for suggesting invalidity) should command respect such that appropriate weight needs to be given to its immediate and regular implementation in assessing the balance of convenience.” (emphasis supplied)

63. As is clear from that passage, significant weight needs to be attached, in assessing the balance of the least risk of injustice, to permitting measures which are prima facie valid to be carried out in a regular and orderly way. All due weight needs to be accorded to allowing the "systems and processes" by which lawful powers are to be exercised to operate in an orderly fashion.

64. The applicant contends that in effect the weight to be attached to this factor should be considerably diluted in the cases before me because it is taking a systemic challenge to the very root of An Coimisiún’s entitlement to engage in the steps contained in the decisions i.e. to transfer complaint information to its supervisory team to allow it to carry out its broader supervisory duty of assessing compliance by the applicant with its obligations under the DSA and the 2009 Act. It will be recalled that it relied in this regard on the analysis as to the nature of the arguments at issue in the proceedings contained in the judgment of Ní Raifeartaigh J in Barrett v The Commissioner of An Garda Síochána. However, the judgment of Ní Raifeartaigh J in Barrett arose in the very different context of interlocutory injunction applications to restrain employment disciplinary processes and, critically, a context where the Okunade test does not apply.

65. I do not think that this analysis of Ní Raifeartaigh J can be safely applied in an Okunade context. Clarke J is clear in Okunade that significant weight needs to be attached to the orderly implementation factor "in all cases". I do not see that I can dilute the weight to be attached to the orderly implementation of decisions which are prima facie valid by reference to the nature of the arguments raised in the proceedings. The arguments which the applicant seeks to raise might well raise systemic issues in the sense of having the potential to affect cases beyond those immediately before the court. However all the applicant has done at this point is to demonstrate that it has passed the low threshold of having an arguable case in relation to its challenges including the core point. Nor do I accept the fact that the Commission is operating under a relatively new statutory regime which is in a bedding down phase as a good reason to dilute the weight to be given to the orderly implementation factor. If anything, the fact that a stay might operate to prevent a regulator from fully and effectively acting in the early stages of a new regulatory regime is a factor which would weigh against the grant of a stay given the public interest objectives which such a regulatory regime has been introduced to advance.

66. It seems to me that the applicant's arguments stray very close to upending the first of the Okunade criteria (and, indeed, the second of the criteria, which I will shortly come

to) by effectively inviting the court to proceed on the basis that the implementation by An Coimisiún of the impugned decisions should in the circumstances of this case be assumed for the purposes of the stay argument to be invalid or at least to carry little weight. I do not believe such an approach is consistent with the proper application of the Okunade principles.

67. Without expressing any view as to the strength of the case on the core point on either side, just as it is accepted for the purposes of this stay application that the applicant has raised arguable grounds of challenge to the impugned decisions, it seems to me that An Coimisiún is entitled, on the basis of the Okunade principles, to an assumption that its decisions are prima facie valid and the processes which follow from those prima facie valid decisions will be prima facie lawfully applied and that I should attach appropriate and real weight to that factor. The fact that the nature of the argument advanced may have application beyond these proceedings or that the statutory regime is in its early stages of operation does not in my view seek to dilute the weight which should be properly attached to this factor.

68. That brings me to the second factor in Okunade, namely the weight to be given to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made. In my view, this is a factor which carries strong weight in the balance of justice against the grant of a stay in these cases for the reasons that follow.

69. The particular scheme as embodied in the DSA and in the relevant provisions of the 2009 Act involves the imposition of mandatory obligations on the providers of intermediary services, such as the applicant in relation to its X social media platform, to advance the objective of a "safe, predictable and trustworthy online environment"

(an objective repeated frequently in the recitals to the DSA). The DSA references the complexity of the functioning of the systems deployed by inter alia very large online platforms (which includes the applicant's social media platform X) and the systemic risks they present to society (see e.g. Recital 99 of the DSA). Furthermore, given the applicant's place of establishment in Ireland for the provision of its services on the X social media platform in the EU, An Coimisiún is deploying its regulatory powers in relation to the applicant’s X sevice for over a hundred million users.

70. It is clear from the terms of the DSA, and is fairly accepted by counsel for X in his submissions, that An Coimisiún can look at both individual complaints but also wider systemic issues of compliance by the applicant with its obligations under DSA.

71. An Coimisiún is invested with a broad series of powers for these ends, as set out in the 2009 Act. While arising in the different legal context of a decision of the Vice President of the CJEU in relation to the set aside of an order of the President of the General Court on an interim stay application in CJEU proceedings, a number of the observations of the Vice President of the CJEU in Amazon Services Europe v Commission (Case C- 639/23P(R) (23 March 2024) are of assistance in relation to the nature of the objectives of the DSA. In his order in that case, the Vice President noted (at para. 155) that the DSA pursues "objects of great importance, since it seeks… to contribute to the proper functioning of the internal market and to ensure a safe, predictable and trusted online environment in which the fundamental rights enshrined in the Charter are duly protected". The Vice President also reasoned that not applying certain obligations laid down by the DSA would lead to a delay in the full achievement of the DSA's objectives “therefore giving rise to a risk of potentially allowing an online environment which threatens the fundamental rights provided for in the Charter to persist and develop” (at para. 57).

72. Accordingly, in my view, the public interest in the orderly operation of the particular scheme in which the decisions under challenge were made is a very strong one.

73. The applicant complains that An Coimisiún has not provided sufficient support for its assertion that the operation of its regulatory functions would in fact be prejudiced by the grant of a stay in these proceedings. I do not accept that this is so on the evidence before me. Judy O'Connell, Legal Director with the Commission, in an affidavit of 16 January 2026 sworn in the 1609JR proceedings, in the context of opposing the applicant’s stay application, averred (at para. 22) that:-

"The stay being sought is not in fact limited to the passing of the information in respect of the complaints to the supervisory team but also to that information being put to any use by the supervisory team. That gives rise to a potentially very serious restriction on the performance by the supervisory team of its functions."

74. Ms O’Connell in her affidavit gave the example of the McW. complaint (which is one of the complaints the decision in respect of which is challenged in the 1701JR proceedings). The McW. complaint information was part of the information on the basis of which a s.139ZI investigation was opened in respect of the suspected noncompliance by the applicant with Article 20 of the DSA (that investigation is the subject of a separate set of proceedings issued by the applicant against An Coimisiún, being proceedings Record no. 2025/1831JR, as referred to earlier). She avers that:-

"More generally, information from complaints (once passed to the supervisory team from the user complaints team pursuant to section 201(4)(d) of the Broadcasting Act) are a valuable source of information for the supervisory team in performing its functions. I say and advise that this is entirely in keeping with the purpose to which complaints are to be put as is clear inter alia from the statement in Recital 118 of the DSA that ‘complaints could provide a faithful overview of concerns related to a particular intermediary service provider’s compliance and could also inform the digital services coordinator of any more cross cutting issues."

75. Ms O’Connell goes on to aver that further complaints could well be submitted to An Coimisiún which might then be passed to the supervisory team the content of which might crossover with that of the complaints in issue in the impugned decisions or to which the complaints might be relevant. She avers as to her belief that the stay sought could affect An Coimisiún’s ability to exercise its statutory functions in that context.

76. She also avers that it is An Coimisiún’s responsibility to supervise and enforce the rights of users across the EU so that DSCs in other EU Member States who receive complaints in relation to the X service are reliant on An Coimisiún being in a position to address those complaints. She avers that "If the supervisory team is restricted from having regard to the information in the complaints this could restrict its ability to fully address issues in a general sense raised by any number of users of the X service across the EU"

(the evidence before the court is that there are just over a hundred million users of the X platform in the EU).

77. These averments are of equal application to the stay application in the 1701JR proceedings.

78. In my view, the applicant's attempts to do dilute the weight which should be placed on the second factor of the Okunade test are not well founded. In light of the great importance of the objectives contained in the DSA, and in the relevant provisions of the 2009 Act which implement the DSA, and in light of the evidence of An Coimisiún as set out above, in my view particularly strong weight should be given to the public interest in the orderly operation of the statutory scheme pursuant to which An Coimisiún operates.

79. In my view, very compelling factors would need to be identified by the applicant to outweigh the significant weight attaching to the foregoing two factors (i.e. Okunade paras 104(b)(i) and (ii)) in the assessment of where the balance of the least risk of injustice lies on the stay applications before me.

80. In my view, the prejudice sought to be invoked by the applicant in the event that a stay is not granted, is not compelling and does not operate to tilt the balance in favour of the grant of a stay. It is important to bear in mind that all that is involved in the impugned decisions, in practical terms, is the provision of complaint information to An Coimisiún’s supervisory team. The supervisory team may draw on that information in discharge of its regulatory supervisory and monitoring functions. The information may, in time, form the part of wider enforcement action (just as has happened in relation to the information obtained on foot of the McW complaint, in the context of the wider Article 20 compliance investigation instituted by An Coimisiún which seeks to rely on an extensive variety of information, not just the McW complaint information). It seems to me that the applicant is overlooking the important factor that if any further formal step is taken by An Coimisiún which seeks to rely on the information contained in the complaints the subject of the impugned decisions, the applicant is entitled as a matter of law to the full panoply of fair procedures protections in relation to any such process. No further substantive step under the DSA or the 2009 Act can be taken without the applicant having an opportunity to make representations on any such proposed step.

81. The applicant contends that if it ultimately succeeds in these proceedings, subsequent processes will be irreparably tainted. I do not see that this is necessarily so given the fair procedures protections which the applicant will be able to avail of in any such further processes.

82. The applicant also contends that if no stay is granted this will inevitably lead to further legal challenges. That may be so, but if further legal challenges are based on the same core point which is raised by the applicant in these proceedings, sensible case management by the court can ensure that both the parties’ and the court’s resources are efficiently deployed to ensure an expeditious determination of that core issue, perhaps by the hearing of a lead case in reasonably early course.

83. I do not believe that much, if any, weight can be placed in the scales in favour of granting a stay on the fact that An Coimisiún took some time to deal with the various complaints the subject of the impugned decisions. Ms O'Connell in her affidavit evidence on the stay applications set out the key steps involved in the chronology of handling the complaints which led to the impugned decisions. I do not believe that there has been any material delay as alleged. An Coimisiún has necessarily limited resources. It has the responsibility of being the regulator of not just the applicant, but other ISPS and very large online platforms headquartered in this jurisdiction, on effectively an EU wide basis.

84. In my view, for the reasons I have identified above, the balance of the least risk of injustice very much lies with An Coimisiún and against the grant of a stay in these two proceedings. In such circumstances, I do not see the need to express a view on the strength of the parties’ respective positions on the issues in the proceedings or on the fact that damages would clearly not be an adequate remedy for the applicant if no stay is granted and it is successful in the proceedings, given the nature of the decisions under challenge.

Conclusion

85. In the circumstances, I refuse the application for a stay in both sets of proceedings.

86. I am told that the applicant and An Coimisiún have been engaging with a view to readying these proceedings for an early hearing date. While the court’s resources are also limited, appropriate case management of these proceedings, and related proceedings in which the s.201(4)(d) issue arises, could ensure that the core issue is determined as expeditiously as is reasonably practicable in a way that minimises the resources which the parties, and the court, will be required to deploy in bringing the various proceedings to conclusion. In that regard, I will discuss with counsel for the parties appropriate steps to expedite the progression of these, and related, proceedings.