Elon Musk and X take High Court action against Irish media watchdog

High Court reporters

Billionaire Elon Musk's 'X', formerly known as Twitter, has opened its High Court challenge against Ireland's media watchdog, Comisiún na Meán, questioning the lawfulness of its investigations into the handling of information arising from user complaints.

The company and Musk claim they are not the 'provider' of the global platform under EU law, as claimed by the commission.

Declan McGrath SC, for Musk on Tuesday submitted that handling of complaints being investigated by the commission could not be extended beyond the EU-designated service provider, which he submits is not Musk, nor X, but an associated company, called XIUC.

At the High Court, McGrath, for the world's reported richest man Musk, who is the first named appellant, and X Holdings Corp, the second named appellant, claim that they were entitled to the principle of "legal certainty", which should apply in any investigation that may result in findings of possible "criminal character".

Musk and X Holdings Corp submit to the High Court that they are not the provider of X's "service" in the EU and are based in the US.

McGrath said the position of the applicants is that the addressee of the commission's original investigation is "not them [the applicants], it is XIUC".

The commission is proceeding with a formal investigation "into the provider of the X online platform under the EU Digital Services Act (DSA). The investigation will assess whether X has contravened Article 20 of the DSA", it is submitted.

Article 20 of the DSA deals with internal complaint-handling systems operated by larger online platforms, referring to platforms with over 45M monthly users inside the EU.

'Terrorist' material

The commission has said it is investigating whether people using the site are able to appeal X’s decisions not to remove content which includes "terrorist" material, when they report something that they think breaches X’s terms of service.

In grounding statements for their application for judicial review, Musk's correspondence address is given as Excession LLC, 2110 Ranch Road 620 South, Austin, Texas, USA, while X Holdings is listed as Bastrop, Texas.

Today, McGrath said the commission has expanded its investigation without an appeal mechanism to include Musk and X Holdings. He said this created a "legal uncertainty" in the proceedings that could not be opposed until the conclusion of any investigation, resulting in what he said could amount to a judicial "irredeemability" in the process of investigation itself.

McGrath said that the financial penalties involved could be characterised as "criminal in character" and that the commission had expanded their investigation to include applicants Musk and X Holdings, when the provider of the social media platform was XIUC, as initially acknowledged by the commission.

The two applicants claim that neither of them "provide the X Service in the EU, or have any contractual relationship relating to the X Service" relating to recipients of the service in the EU.

They submit that the European Commission has already designated XIUC as the only provider of the service in the EU. XIUC's address is listed as Cumberland Place, Fenian Street, Dublin 2.

The applicants submit that the commission acted beyond its powers in commencing the investigation without determining whether Mr Musk or X Holdings "are the relevant intermediary service providers within the Act".

Notice party XIUC claims the direction grounding the investigation is "ambiguous and void for lack of legal certainty, in breach of fair procedures, and in breach of transparency requirements". It further claims the notice of the investigation fails to state "particulars" of suspected contraventions.

McGrath said neither applicant had any direct relationship with the platform provider XIUC under EU law and that this was accepted by the Irish government. He said the challenge by Mr Musk and 'X' is that the commission could not commence or continue their investigation without a clear decision as to who the provider of the 'X' service is as it would "set off on the wrong footing".

The case continues before Mr Justice Barry O'Donnell and is scheduled to last three days.