In its recently-published accounts, Ireland’s media regulator Coimisiún na Meán in essence maintained that due to the nature of its work, being sued was an occupational hazard.
The accounts show that in 2024 it paid out €2.85 million on costs relating to four legal actions being taken against it. This included more than €1 million that was set aside as “an estimate of liabilities that may arise to third parties”.
Another €2.95 million was spent on legal advice.
“Due to the nature of its operations, the commission is involved in legal actions, principally judicial review proceedings on its decisions”, a note in the accounts said.
RM Block
The media regulator, which was established in 2023, is currently facing 12 legal challenges – more than half of these involve the social media platform X.
Close observers of the tech industry are not surprised by such court actions.
They maintain that similar legal challenges have been faced by the Data Protection Commission (DPC) which is the lead supervisory authority across the EU/EEA for personal data processing of many global internet platforms headquartered in Ireland.
The DPC told The Irish Times that of 15 large-scale investigations into large tech platforms, 13 were currently subject to appeals to the Irish courts while some were also subject to judicial review. It said a case involving WhatsApp, in which it levied a €225 million fine, was currently before the Court of Justice of the European Union.
Barrister Michael O’Doherty, who is the chair of the Media, Internet and Data Protection Bar Association, said the strategy of the various platforms would seem to be “sue first”.
Johnny Ryan, director of Enforce, a unit of the Irish Council for Civil Liberties, who previously held senior roles in online advertising, media and technology, said while Ireland provided a haven for international tech firms, the firms still appealed almost every decision that went against them.
“Even though we have been giving these guys a pass in Europe, if anyone even says boo to them, they will get litigation. That is just normal”, Ryan said.
Associate professor at the Sutherland School of Law at UCD, TJ McIntyre said it could be expected that there would be significant litigation in Ireland given that many tech companies have their European headquarters in Dublin.
He said companies such as X were particularly litigious.
McIntyre said this was similar to another social media giant, Facebook, which adopted a similarly legal strategy in dealing with the DPC. He said this involved appeals along with judicial review actions while at the same time initiating court cases at European level.
One senior figure with experience in the regulatory world also maintained that there seemed to be challenges at earlier stages in the investigative processes rather than waiting until a conclusion was reached.
Meta, the parent company of Facebook did not comment.
X does not generally engage with media queries. An email reply to The Irish Times stated: “Legacy Media Lies.”
O’Doherty said in taking legal challenges, tech companies believed they have been aggrieved but also had relatively bottomless pockets to fund the litigation.
“They make vast amounts of money, and I think they feel that any of this regulation (that) is going to affect their commercial success; any regulation of any sort, that limits the manner in which they’ve been operating for the last 20 odd years, is going to affect their bottom line.”
“And the longer they can delay any regulation by appealing and then further appealing and further appealing – the longer they can get this stuck in litigation – the better it is for these companies.”
O’Doherty said such actions by tech companies was no different from the stance taken previously by other large corporations. He said big pharma and big tobacco in the past would have acted similarly.
“They have vast amounts of money and they are perfectly happy to throw it at litigation, if for nothing else than simply to delay the inevitable.”
While there has been a focus recently on regulation of the tech sector, the first legislation dates back more than 20 years to the European ecommerce directive.
O’Doherty said this essentially provided immunity to tech companies from, for example, defamation cases, for user-generated content uploaded on to their platforms.
He said this was updated in 2022 by legislation which also added new requirements in terms of harmful material the platforms hosted. He said Coimisiún na Meán was established as the body that would essentially oversee the requirements put on the big tech companies. It had a remit to monitor companies to make sure they dealt with harmful material in an efficient manner, he said.
Under the Online Safety and Media Regulation Act 2022, individuals could also make complaints to Coimisiún na Meán about particular content, he said.
O’Doherty said the first challenges to Coimisiún na Meán came from two tech companies who objected to being included on a list of video-sharing platforms to be regulated.
Subsequently X challenged a new Online Safety Code introduced by Coimisiún na Meán in October 2024. X lost in the High Court but earlier this month secured permission to appeal. The court found X had raised legal issues “of exceptional public importance”.
O’Doherty said that increasingly the discussion about the regulation of tech platforms was focusing on issues regarding harm to children.
He said after Australia last year banned social media for those under 16, various European countries were considering similar measures.
“The fines imposed by Coimisiún na Meán or the Data Protection Commission are systemic fines. They are in relation to the manner in which the platforms deal with particular types of content. And that can be fixed. They get fined. They might pay the fine. They fix the issue and they move on and go back to earning the money they always have.”
“The issue about online harm and particularly harm against children is now bringing a discussion about banning access to social media for anyone under 15 or 16. That is going to have a seismic effect on these platforms – far more than any individual fine could do – because it could remove millions and millions of users from the platform which will affect their bottom line“, O’Doherty said.
O’Doherty maintained this issue about harm caused to children would lead to further litigation.
He pointed to a case which commenced in the US this week in relation to algorithms used by some tech companies and harmful material being directed towards young people.
“Companies have had almost total immunity against being sued in the United States and this is going to challenge that immunity because they (the plaintiffs) are saying it is not about the content that the platforms host but about the algorithms and the way content is suggested and directed towards people, particularly at an early age when they do not have the capacity to sift good from bad. That case could be an absolute game changer.”
“If that case is successful, I can see a lot of people in EU member States saying, maybe I have a case against them (the tech platforms) as well.”
Tech Fines
The Data Protection Commission (DPC) has imposed fines of more than €4 billion on large tech companies arising from investigations. However, only about €17.5 million has so far been paid with the remainder tied up as a result of court challenges.
The DPC said it had issued 15 decisions on foot of such investigations but 13 of these were currently subject to appeals to the Irish courts. It said some were also subject to judicial reviews and one involving a decision to levy a €225 million fine against WhatsApp was currently before the Court of Justice of the European Union.
“The two cases that weren’t appealed were that of Meta, where there was a €17 million (fine) and also one into Twitter, which had a €450,000 fine,” the DPC said.
“Once the appeal period passes and no appeal has been lodged in such cases, the DPC then applies to the courts to have the fines confirmed (as per the legislation). This happened in both these decisions and the fines were then passed to the Irish Exchequer”.
Among the cases being appealed is a: €1.2 billion fine on Meta which was imposed by the DPC in May 2023; a €530 million fine imposed on TikTok in April last year; and a fine of €345 million from 2023 against the same platform.
Media regulator Coimisiún na Meán said X Internet Unlimited had lodged seven legal challenges against it.
These included an appeal the High Court decision which rejected X’s challenge of the Online Safety Code as well as a request for a judicial review of the regulator’s decision to commence a formal investigation into whether the platform was complying with provisions in the European Digital Services Act. The investigation will look, in part, at whether users could appeal X’s decisions not to remove content when they report something that they think breaches its terms of service.
The regulator said that separately Elon Musk, who controls X Holdings Corp “had issued proceedings against An Coimisiún on the decision to open the Article 20 investigation of the X service”.
