High Court grants certificate to appeal principal judgment on Digital Services Act and AVMSD compliance.

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2026] IEHC 28

Record No. 2024/1424JR

BETWEEN/

X INTERNET UNLIMITED COMPANY

APPLICANT

AND

COIMISIÚN NA MEÁN

RESPONDENT

(No. 2)

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 20th day of January 2026

INTRODUCTION

1. This is the Applicant’s application for a certificate to appeal, pursuant to the provisions of s. 38 of the Broadcasting Act 2009 (“the 2009 Act”), the judgment delivered in X Internet Unlimited Company v. Coimisiún Na Meán [2025] IEHC 442 (“the principal judgment”).

2. In summary, as outlined in the ‘Conclusion’ section of the principal judgment (beginning at paragraph (186)), I considered – having regard inter alia to (i) the general approach to be applied to the interpretation of the applicable national and EU legislative matters, (ii) the legislative prism through which these matters were to be considered,

(iii) the use of terms, including, for example, ‘without prejudice’, ‘lex specialis’ and ‘harmonisation’, (iv) the provisions of the Online Safety Code (“the Code” addresses online safety which applies to video-sharing platform services (“VSPS”) including such services provided by the Applicant (previously known as “Twitter”) sought to be impugned, ‘terms and conditions’ and related obligations, (v) the juxtaposition of the provisions of Regulation (EU) 2022/2065 (“the Digital Services Act” or “the DSA”) with the complementary provisions of Directive 2010/13/EU as amended by Directive (EU) 2018/1808 (“the Audiovisual Media Services Directive (“the AVMSD”)), and (vi) the ‘measures’ specified in the terms and conditions of the provisions of the Code which were sought to be impugned – that the promulgation by the Commission of sections 12.1, 12.6 to 12.9, and 13.6 to 13.9 of the Code was not ultra vires Article 28b of the AVMSD, or its transposing national provisions in the Broadcasting Act 2009 as amended by the Online Safety and Media Regulation Act 2022 (“the 2009 Act”), and did not amount to an impermissible or inconsistent overreach of the provisions of the Digital Services Act.

3. At paragraph (187) of the principal judgment, it was stated, in summary, that the terms of the provisions of the Digital Services Act, and in particular Recitals (9), (10), Article 2(4) and Article 14, treated of the provisions of the AVMSD and those which refer to the terms and conditions of video-sharing platform service providers, in a complementary manner and this was not reduced by the fact that, as a directive, the AVMSD was a measure of minimum harmonisation and nor was the relationship between the Digital Services Act and the AVMSD in this specific context one where the AVMSD had been displaced or substantially curtailed by the Digital Services Act because it was a provision of maximum harmonisation.

4. In the Conclusion section, paragraph (189) of the principal judgment further stated that the provisions of sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code which addressed the terms and conditions of video-sharing platform services and provided for a process of suspension arising from the infringement of those terms and conditions, did not conflict with the Digital Services Act, including Article 14.

5. Further, in summary, paragraph (190) of the principal judgment concluded that the full horizontal harmonisation of the Digital Services Act did not detract from the fact that the provisions of Article 2(4) (informed by, inter alia, Recital (10)) provided for other Union law (as per the AVMSD as transposed in the 2009 Act) and for the making and adoption of sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code which sought to ensure that the terms and conditions of providers of intermediary services protect minors from content which may impair their physical, mental or moral development, as well as measures to protect the general public from content containing incitement to violence or hatred and a further requirement on providers of video-sharing platforms to ensure that the terms and conditions require commercial communications to prohibit certain types of communications which are harmful. The principal judgment found that such provisions were within the vires of the AVMSD and the 2009 Act, and were entirely complementary to the Digital Services Act and not in conflict with it.

6. Having regard to – (i) the legislative provisions which prescribe the appellate process in this case, (ii) the applicable principles which govern a certificate application, and (iii) the principal judgment, I am of the view, for the reasons set out in this judgment, that the principal judgment involved points of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal. I have certified those points at the end of this judgment under the sub-heading “Conclusion: certified points/questions”.

7. In so certifying, I have had the benefit of detailed written and oral submissions from the parties which included an iterative (and without prejudice) exchange in relation to three proposed questions, counter formulations of those questions and further related observations.

STATUTORY PROVISIONS FOR APPEAL

8. Turning to the first question of the applicable statutory provisions which prescribe the application for a certificate, insofar as these proceedings are concerned, s. 38(5)(c) of the 2009 Act provides that, subject to s. 38(6), no appeal shall lie to the Court of Appeal from a decision of the High Court on an application for judicial review following leave granted under s. 38(2).

9. Section 38(6) of the 2009 Act provides that the High Court may grant leave to appeal from a decision referred to in s. 38(5) where it certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.

10. These are cumulative requirements and a similar phraseology, for example, in the statutory planning code, has been the subject of a number of judgments of the Superior Courts, including, recently, Grall v Meath County Council [2025] IEHC 318 and Monkstown Road Residents Association & Ors v An Bord Pleanála & Ors [2023] IEHC

9. I have set out the applicable general principles in the next section of this judgment. The provisions of ss. 38(5) and 38(6) were also the subject of a ruling of the High Court in Reddit Incorporated v Coimisiún Na Meán (unreported, High Court (Siobhán Phelan J.), 9th October 2024).

11. Section 38(7) of the 2009 Act provides that the Court of Appeal shall have jurisdiction to determine only the point of law certified by the High Court under s. 38(6) and to make only such order as necessarily follows from that determination. This is an important provision in the legislative architecture because, depending on the matters certified, it could potentially limit the range of inquiry of an appellate court.

12. Similar provisions to s. 38(7) of the 2009 Act can be found in other legislation, including, for example, s. 113(5)(a) of the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 which provides that on an appeal from a determination of the High Court to which s. 113(2) applies, the Court of Appeal shall have jurisdiction to determine only the point of law certified by the High Court under s.113(2) (and to make only such order in the proceedings as follows from such determination); s.33B(10)(a) of the Maritime Area Planning Act 2021; and, s.50A(11) of the Planning and Development Act 2000, as amended (“the 2000 Act”).

APPLICABLE PRINCIPLES

13. Next, ss. 38(5) and 38(6) of the 2009 Act employs similar statutory language to s. 50A(7) of the 2000 Act.

14. The following principles arise generally from a consideration of s. 50A(7) of the 2000 Act which confirms the objective of the Oireachtas in seeking finality, certainty and expedition in challenges brought by way of judicial review in such cases and that the appellate process is a jurisdiction which should be used sparingly (CHASE v An Bord Pleanála [2022] IEHC 231 per Barniville J. (as he then was)), at paragraph 32.

15. The authorities reviewed include Glancré Teoranta v An Bord Pleanála [2006] IEHC

250 (MacMenamin J.); Rushe & Anor v An Bord Pleanála & Ors (No.2) [2020] IEHC

429 (Barniville J. (as he then was)); Humphreys J. in Nagle View Turbine Aware v An Bord Pleanála (No.2) [2025] IEHC 3 at paragraph 9; the High Court in Monkstown Road Residents’ Association v An Bord Pleanála [2023] IEHC 9 per Holland J. at paragraph 8; McCaffrey & Sons Ltd v An Bord Pleanála [2024] IEHC 476, per Gearty J. at paragraph 2.2.; Grall v Meath County Council [2025] IEHC 318 (Barrett J.).

16. The applicable principles which derive from a consideration of this case-law include the following:

(i) a consideration of the possible outcome (on appeal) of the certificate application is irrelevant, as the point of law of exceptional public importance in respect of which it is desirable in the public interest that an appeal should be taken, must

(a) emanate from the decision in the principal judgment (rather than the merits of the parties’ arguments made during the course of the hearing which led to that

decision) and (b) transcend the facts that arise in the fact-specific context of a particular case. Furthermore, a point which was not decided cannot amount to such a point of law and, generally, it is not appropriate to grant leave to appeal in respect of a point of law which has not been properly pleaded;

(ii) the requirements – that (a) the point of law sought to be certified must be of exceptional public importance and (b) it must be in the public interest that an appeal be brought – are cumulative. In this regard, the point of law must be one which is dispositive of the proceedings (and not one which, if answered differently, would leave the result of the case unchanged). The closer a point of law is to the application of clear and well-established legal principles, the more difficult it is to satisfy the requirement that the point of law is one of exceptional public importance and that it is desirable in the public interest that there be an appeal on the point;

(iii) these cumulative requirements encapsulate the balancing exercise involved where the questions must be both general and transcendent in their implications and yet also particular to the case and dispositive of the issue or issues, i.e., that it is not abstract. Further, whilst there may often be a degree of overlap in relation to these two matters, amongst the factors which arise when considering the second requirement (i.e., whether it is desirable in the public interest that an appeal be brought) include whether there is some uncertainty or lack of clarity in the law, whether the law in the area is still evolving (and novelty does not necessarily equate with uncertainty or evolvement), and the potential consequences of any delay in the final determination of the case before the courts.

(iv) The raising of an argument on a proposed point of law which the Court has rejected does not mean that the law is uncertain and it is not necessary to point to other decisions which conflict with the decision of the High Court on the point from which it is sought to appeal. The uncertainty must arise over and above the mere fact that an argument can be made on the point, for example, where there is uncertainty in the daily operation of the law in question which is required to be clarified. The corollary is also true, so where a point is a novel one and the law is in a state of evolution, it is more likely that it is desirable in the public interest that an appeal be brought.

THE PRINCIPAL JUDGMENT

17. I have summarised the principal judgment at paragraphs (2) to (5) above.

18. To recap, it addresses the vires of Part B of the Code and determines that sections 12.1,

12.6 to 12.9 and 13.6 to 13.9 of the Code do not unlawfully exceed what was required to transpose Article 28b of the AVMSD and the provisions of the 2009 Act and do not impermissibly seek to regulate or create conflicts with areas which are covered by the Digital Services Act.

19. Whilst the judgment determines what might be described as a discrete matter of legal interpretation concerning the vires of the Commission to make and adopt the Code (and the particular provisions of the Code which are sought to be impugned), it is important, when considering this application for a certificate to appeal, to recall that the determination of the net question in the principal judgment was by reference to the provisions of the AVMSD and the Digital Services Act.

20. The points of law of exceptional public importance which it is desirable in the public interest that an appeal should be taken to the Court of Appeal arise from the question as to whether or not sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code are intra vires or ultra vires Article 28b of the AVMSD as transposed by the 2009 Act and whether they are complementary to, or in the alternative, impermissibly seek to regulate (conflict with), areas addressed by the Digital Services Act.

21. This is borne out by a number of the findings in the principal judgment, including the following.

22. The principal judgment, at paragraphs 40 and 41, referred to Recital (10) and Article 2(4) of the Digital Services Act seeking to address two distinct scenarios: first, those EU legal measures which regulate other aspects of the provision of intermediary services in the internal market which are not prescribed by the Digital Services Act; and second, those EU legal measures which specify and complement the Digital Services Act and that the AVMSD, and the issues raised in this judicial review application, involved the latter or second scenario, i.e., EU legal measures which specify and complement the Digital Services Act.

23. Similarly, at paragraph (128), the principal judgment inter alia found that the Code which was made pursuant to the AVMSD and the 2009 Act complemented the Digital Services Act.

24. The principal judgment, at paragraph (129), determined that there was no conflict between the provisions of the Code (made under the provisions of the AVMSD and the 2009 Act) and Article 14 of the Digital Services Act, where Article 14(4) referred to providers acting in a “diligent, objective and proportionate manner in applying and enforcing the restrictions”, in Article 14(1) “with due regard to the rights and legitimate interests of all parties involved, including the fundamental rights of the recipients of the service, such as the freedom of expression, freedom and pluralism of the media, and other fundamental rights and freedoms as enshrined in the Charter”, implying an indirect horizontal application of fundamental rights in the relationship between providers of intermediary services and those who receive them (as suggested by Wilman, Kalėda and Loewenthal, The EU Digital Services Act: A Commentary (Oxford University Press, 2024) at p.123).

25. By way of further example, at paragraph (141), the principal judgment stated that the methodology employed by the Commission was to adopt a Code referable to terms and conditions on providers of video-sharing platforms having regard to Article 28b, and in particular Article 28b(3) of the AVMSD and that the terms and conditions prescribed in sections 12.1, 12.6 to 12.9 and 13.6 to 13.9 of the Code were not limited to access control measures.

26. At paragraph (150) of the principal judgment, it was determined that Article 28b(3)(a) and (b) of the AVMSD expressly provides that the measures adopted, shall be “as appropriate”, including and applying in the terms and conditions of the video-sharing platform services, the requirements referred to in Article 28b(1) (in the case of Article 28b(3)(a)) and the requirements set out in Article 9(1) for audiovisual commercial communications that are not marketed, sold or arranged by the video-sharing platform providers (in the case of Article 28b(3)(b)).

27. The principal judgment, at paragraph (151), stated that when assessing the interaction between the Digital Services Act and the AVMSD, sections 12.1, 12.6 to 12.9, and 13.6 to 13.9 of the Code focused on the terms and conditions which providers of intermediary services offer, and the consequences of their infringement, and there was no conflict between the Digital Services Act and the AVMSD. The relationship between the two legal instruments (i.e., the Digital Services Act as a Regulation and the AVMSD as a Directive) via the prism of Article 2(4) of the Digital Services Act (and informed by Recital (10)), and exemplified by Article 14 of the Digital Services Act reflected the travaux préparatoires and the consideration by the EU institutions of the relevance of other layers of regulation in Union acts, to that prescribed by the Digital Services Act and which are complementary to it and which pursue the same objectives.

28. At paragraph (158), the principal judgment determined that in the adoption of the Code (and sections 12.1, 12.6 to 12.9 and 13.6 to 13.9) and by choosing the form and methodology of ensuring that video-sharing platform providers include measures in their terms and conditions with consequences for their infringement, the provisions of the AVMSD (as transposed in the 2009 Act) were being implemented with the specificity, precision and clarity required to satisfy the requirements of legal certainty, which culminated in a legal situation which was sufficiently precise and clear so that all concerned parties are aware of the extent of their rights and obligations.

29. The principal judgment (at paragraphs (163) and (164)) points out that preference for full or maximum harmonisation and uniformity of the Digital Services Act throughout the EU Member States should not be conflated with the fact that the Digital Services Act through its provisions (for example, in Recitals (9), (10) and Article 2(4)) recognises the significance of, first, categories of Union law provisions which regulate other aspects of the provision of intermediary services and addresses issues which are not regulated by the Digital Services Act, and, second, categories of Union law provisions which specify and complement the Digital Services Act.

30. The principal judgment (at paragraph 173) found that minors can also be considered in Article 28b(1)(b) and (c) of the AVMSD as part of the online audience.

31. The principal judgment (at paragraph 179) found that Article 6a(1) of the AVMSD made a distinction between content which may impair the physical or moral development of minors and the most harmful content, such as gratuitous violence and pornography. The reference, in the first part of the sentence, to taking appropriate measures which ensure that audiovisual media services provided by media service providers “impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see them” was held not to be a prescription to make such content “available” but was, rather, a conditional requirement to ensure that minors would not normally hear or see them, the corollary being if that assurance could not be met, the same should not be made available.

32. The principal judgment at paragraph (182) addressed the distinction between ‘lawful but harmful’ and ‘illegal’ and found that the AVMSD was aimed at not just matters which are independently illegal through existing legislation and, therefore, not to be transmitted, but also material that was harmful. It determined that whilst harmful content may not be illegal, EU law had placed a paramountcy in extending a legal protection to content which it deemed should not be seen. The Commission in making sections 12.1,

12.6 to 12.9 and 13.6 to 13.9 of the Code had determined that this was most harmful content which should be subject to the strictest measures as envisaged in the second half of the sentence in Article 6a(1) of the of the AVMSD.

33. In framing the questions to be certified in this case, the court of first instance should be careful not to circumscribe the jurisdiction of the appellate court in dealing with the points of law which meet the cumulative standard of constituting a point of law of exceptional public importance, and where, it is desirable in the public interest that an appeal be brought.

CONCLUSION: CERTIFIED POINTS/QUESTIONS

34. In the circumstances, therefore, I certify that the following points (questions) arise from the principal judgment and involve points of law of exceptional public importance and that it is desirable in the public interest that an appeal should be brought to the Court of Appeal:

(i) Does the Digital Services Act (having regard inter alia to Recitals (4), (9) and

(10) and Articles 1, 2(4), and 14) permit the Commission, as the Competent Authority, to adopt provisions, pursuant to Article 28b(1) and Article 28b(3) of the AVMSD, such as section 12.1 of the Code, which requires a VSPS provider to include in their terms and conditions and related obligations of the service, restrictions that preclude users from uploading or sharing “restricted video content” and “restricted indissociable user-generated content”, as opposed to imposing access control measures with respect to that content, having regard to the Commission’s decision that it is appropriate that the uploading or sharing of this content be precluded in the terms and conditions and related obligations of the service in order to protect the physical, mental or moral development of minors?

(ii) If the answer to Question 34(i) is in the negative, does the Digital Services Act (having regard inter alia to Recitals (4), (9) and (10) and Articles 1, 2(4), and 14) permit the Commission, as the Competent Authority, to adopt provisions, in the alternative, pursuant to Article 28b(6) of the AVMSD, such as section 12.1 of the Code rather than imposing access control measures with respect to that content, having regard to the Commission’s decision that it is appropriate that the uploading or sharing of this content be precluded in the terms and conditions and related obligations of the service in order to protect the physical, mental or moral development of minors?

(iii) Does the Digital Services Act (having regard inter alia to Recitals (4), (9) and

(10) and Articles 1, 2(4), and 14) permit the Commission, as the Competent Authority, to adopt provisions, pursuant to Article 28b(1) and Article 28b(3) of the AVMSD, such as section 12.1 of the Code, which requires a VSPS provider to include in their terms and conditions and related obligations of the service, restrictions that preclude users from uploading or sharing “restricted video content” and “restricted indissociable user-generated content”, in circumstances where the persons to whom the “risk” under the “risk test”, defined in the Code, attaches, may be a child or an adult, having regard to the Commission’s decision that it is appropriate that the uploading or sharing of this content be precluded in the terms and conditions and related obligations of the service, in order to protect the physical, mental or moral development of minors?

(iv) If the answer to Question 34(iii) is in the negative, does the Digital Services Act (having regard inter alia to Recitals (4), (9) and (10) and Articles 1, 2(4), and 14) permit the Commission, as the Competent Authority, to adopt provisions, in the alternative, pursuant to Article 28b(6) of the AVMSD, such as section 12.1 of the Code in circumstances where the persons to whom the “risk” under the “risk test”, defined in Code, attaches, may be a child or an adult, having regard to the Commission’s decision that it is appropriate that the uploading or sharing of this content be precluded in the terms and conditions and related obligations of the service, in order to protect the physical, mental or moral development of minors?

(v) Does the Digital Services Act (having regard inter alia to Recitals (4), (9) and

(10) and Articles 1, 2(4), and 14) permit the Commission, as the Competent Authority, to adopt provisions, pursuant to Article 28b(1) and Article 28b(3) of the AVMSD, such as sections 12.6 to 12.9 and 13.6 to 13.9 of the Code?

(vi) If the answer to Question 34(v) is in the negative, does the Digital Services Act (having regard inter alia to Recitals (4), (9) and (10) and Articles 1, 2(4), and 14) permit the Commission, as the Competent Authority, to adopt provisions, in the alternative, pursuant to Article 28b(6) of the AVMSD, such as sections 12.6 to 12.9 and 13.6 to 13.9 of the Code?

35. Unless the parties seek a different order, I am provisionally inclined to make no order as to the costs of the certificate application. If a different costs order is sought by either party in relation to the certificate application, or if any other ancillary or consequential issue arises, the parties’ respective solicitors can arrange a date for the matter to be further mentioned by contacting the Registrar.

CONLETH BRADLEY

20th January 2026