Tumblr’s High Court case against regulator to be heard in May

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 Meán amounts to an error of law. It contends it should not be put in the same bracket as platforms such as YouTube.

The court fixed the hearing of its action against An Coimisiún, whose functions include the regulation of online safety in the State, for a date in May.

Ms Justice Niamh Hyland, who granted the US company permission to bring its judicial review action against An Coimisiún, accepted the case is urgent.

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The judge said the matter should be heard directly after a similar but separate challenge brought by Reddit against An Coimisiún. That action has been fixed for hearing in May. Tumblr’s case, the judge said, should follow once Reddit’s action, which was brought first, has concluded.

The court accepted the cases should not be heard together, due to the legal differences 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.

An Coimisiún is expected to contest both matters.

In its action Tumblr Inc, a US-registered microblogging site, seeks orders quashing An Coimisiún’s decision of last December 28th designating it a video-sharing platform service.

It claims 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.

[ Reddit’s challenge to online safety code designation set for May hearing ]

Such platforms, Tumblr submits, are very different in terms of size, risk profile and content. Tumblr argues that video on its platform is at best a minor and ancillary feature.

The very low rate of videos on the platform makes this apparent, it claims.

It also argues there was a fundamental failure on the Coimisiún’s part to engage with data supplied by Tumblr.

An Coimisiún 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 the respondent’s decision is invalid and misinterprets and misapplies the definition of a video-sharing platform service 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.

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