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Court urged to overturn media regulator’s decision to include Tumblr in online safety code

Tumblr says designation will have very serious consequences

Tumblr says the decision of Coimisiún Na Mean is invalid. Photograph: Bryan O'Brien

Thu May 9 2024 - 17:23

The High Court has been urged to overturn a decision of the media regulator to include Tumblr as one of 10 video-sharing platform services (VSPS) which are to be regulated under a new online safety code.

US-based Tumblr Inc says the decision of Coimisiún Na Mean is invalid and misinterprets and misapplies the definition of a VSPS under EU law and the 2009 Broadcasting Act.

The regulator denies the claims. It says, among other things, that the audiovisual and user-generated video content on Tumblr is part of the attractiveness of the service which is used to generate income for it.

Arguing the case for Tumblr on Thursday, Emily Egan McGrath SC said videos are a very small part of the user experience on the platform.

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Videos make up less than 4 per cent of posts on Tumblr and although the regulator says some users receive audio visual content frequently, just under one per cent of users receive videos every month, counsel said.

She also said the designation of Tumblr as a VSPS was irrational, not based on the evidence and amounted to an error of law.

The designation will have very serious consequences for Tumblr, which, unlike other big platforms which have thousands of employees and hundreds of content moderators, has less than 200 employees and 40 moderators, she said.

The evidence and the data provided by the platform shows that Tumblr is not a VSPS and should not be subjected to the same regulatory requirements as platforms that publish and share a lot of videos.

Other platforms, Tumblr submits, are very different in terms of size, risk profile and content compared to what it offers.

There was also, it is claimed, a fundamental failure on the regulator’s part to engage with data supplied to it by Tumblr before the designation decision of last December was made.

Catherine Donnelly SC, for Coimisiún na Mean, said her client reached the decision to include Tumblr after very extensive consultation with the firm. The decision was made in compliance with the relevant guidelines and EU directive and after a very lengthy and careful engagement with Tumblr, she said.

The decision demonstrated a proper understanding of those matters, she said.

Counsel rejected the claims of misinterpretation by the regulator and said the misinterpretation was on Tumblr’s side particularly in relation to the role of quantitative data in the assessment. She also rejected that there was a lack of reasons given for the decision.

In relation to the claim that audiovisual content was a very minor part of Tumblr, counsel said the effect of the harm that can arise from minor use is no different from that of platforms where video sharing is a large part of its activities, she said.

The hearing continues before Ms Justice Siobhán Phelan.

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