Meta granted High Court permission to challenge €12 million State levy
High Court reporters
Social media giants Meta and WhatsApp have been granted permission by the High Court to challenge the calculation of a €12 million State levy to be imposed upon them by media watchdog Coimisiún na Meán for their supervision costs.
At the High Court on Monday, lawyers for Meta Platforms Ireland Ltd and WhatsApp Ireland Ltd successfully applied to Ms Justice Mary Rose Gearty for permission to challenge what they claim is a transparency issue over the calculation behind the levy.
In court papers, Meta says the company is the provider of Facebook and Instagram services to users in Ireland.
All three platforms have been designated as "very large online platforms" by the EU, with Facebook, WhatsApp, and Instagram designated as "video-sharing platform services pursuant to the Broadcasting Act as amended and hosting services exposed to terrorist content", requiring supervision.
Meta and WhatsApp are seeking an order from the High Court to quash a statutory instrument under the Broadcasting 2009 Act under which the multi-million euro levy was issued.
The companies are also seeking a declaration that the State commission acted "unlawfully, unfairly and beyond its power" in making a statutory legal instrument under which they were invoiced, instead of being notified first about compliance, referred to within the 'Broadcasting Act 2009 (Section 21) Levy Order 2025', and if necessary, that it Act is "unconstitutional".
The applicants submit that the commission is seeking to impose the levy to fund the discharge of its "regulatory functions, in relation to expenses that must be properly incurred and for working capital requirements" to fulfil their work.
The companies submit that the commission has a discretion to make any order imposing a levy on intermediary service providers and hosting service providers but must provide "transparency" on incurred levies.
Meta and WhatsApp submit that they were not able to see how any "supervisory fee payable by the applicants to the European Commission under the Digital Services Act was to be taken into account and double-charging avoided".
The companies claim that they were submitted "invoices" instead of the "appropriate notices", under the commission's declarations, for the purposes of compliance with a 2025 Levy Order.
The applicants claim that the levy imposed upon them collectively amounts to €12,921,438.
It is submitted that the applicants had no way to verify that the correct formula was used in calculating the levy payable, "in circumstances where it was only issued with a simple invoice demand for payment and without any explanation as to how the total amount was calculated".
"This was, in the applicants' view, further evidence of the lack of transparency provided by the respondent [the commission] in the process," it is claimed.
Andrew Fitzpatrick SC, for the companies, told Ms Justice Gearty that the applicants were aware that while the Broadcasting Act conferred discretion on the commission in exercising its powers, neither the Act nor the commission described "how the levy should be imposed, regarding calculation".
Mr Fitzpatrick said it could be a case of "one public body left to itself in exercising power", and that Meta would be challenging this based on the order itself. "We have not been given any details, but invoices were issued," he said.
Ms Justice Gearty granted leave to seek judicial review for the companies in the ex parte application - where only one side is represented - and adjourned the matter to April.
