ByteDance Ltd v Coimisiún na Meán - DSA Investigation Challenge

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  Bytedance Ltd v Coimisiun na Mean and Anor (Approved) [2026] IEHC 196 (26 March 2026)

URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC196.html
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APPROVED

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AN ARD-CH?IRT

THE HIGH COURT

[2026] IEHC 196

Record No. 2025/1939 JR

BETWEEN/

BYTEDANCE LTD

APPLICANT

-AND-

COIMISI?N NA ME?N

RESPONDENT

-AND-

TIKTOK TECHNOLOGY LIMITED

NOTICE PARTY

JUDGMENT of Mr. Justice Conleth Bradley delivered this 26 th day of March 2026

INTRODUCTION

Preliminary

1. This interlocutory application for a stay is in the context of a wider judicial review challenge by ByteDance Ltd ("the Applicant" or "ByteDance") in connection with an investigation by Coimisi?n Na Me?n ("the Commission") in respect of the provider of the online platform TikTok.

2. The Commission is designated pursuant to s. 7(6) of the Broadcasting Act 2009 as amended ("the 2009 Act") as the Digital Services Coordinator for Ireland as per Article 49 of Regulation (EU) 2022/2065, i.e. the Digital Services Act ("the DSA") and is responsible for the supervision and enforcement of the DSA in Ireland.

3. As referred to later in this judgment, on 25 th April 2023, the European Commission ("the EC") designated TikTok as a very large online platform ("VLOP") pursuant to Article 33(4) of the DSA.

4. Arising initially from concerns raised with it by a German human rights organisation, the Commission, from July 2024 to May of 2025, engaged with TikTok Technology Limited ("TTTL") in relation to suspected contraventions of Article 16 of the DSA which prescribes the notification mechanisms to allow users of the TikTok online service to report illegal content and allow for its possible removal.

5. Chapter 2, ss. 139ZH to 139ZP of the 2009 Act provides for the appointment of authorised officers and for investigations.

6. The Commission, as the relevant regulatory body, appointed an authorised officer (pursuant to s. 139ZI of the 2009 Act) on 10 th July 2025 and it was decided to commence an investigation of suspected contraventions of the aforesaid provisions of the DSA by the provider of TikTok services.

7. In the decision dated 29 th October 2025 where one authorised officer of the Commission directs another authorised officer to conduct an investigation, it was inter alia stated that "...[t]he precise scope of the service provider (i.e., the identity of the legal entities forming the economic unit providing the online platform TikTok) is subject to further assessment and is a matter to be established during the course of any investigation..."

8. In May 2025, TTTL was notified by the Commission that the matter was being passed to its internal supervisory team which then widened the inquiry or investigation? to include, in addition to the alleged contraventions of Article 16, the examination of suspected breaches of Article 25 of the DSA and what was referred to as the 'provider issue', namely, seeking to ascertain the precise scope of the service provider and what entities comprise the provider of the TikTok online service.

9. Consequently, under correspondence from the Commission dated 2 nd December 2025 sent to "The provider of TikTok in the European Union" and sent by pre-paid registered post to "TikTok Technology Limited" at an address in Ireland and to "ByteDance Limited" at an address in the Cayman Islands, these recipients were informed of a case file reference number in relation to "Notice of Commencement of an Investigation pursuant to s. 139ZJ and s. 139ZI of the 2009 Act" and the following documents were enclosed: (1) Notice of Commencement of an Investigation pursuant to s. 139ZJ and s. 139ZI of the 2009 Act; (2) Appendix I of the Notice of Commencement of an Investigation - Authorised Person's Direction and Terms of the Investigation; (3) Appendix II of the Notice of Commencement of an Investigation - Material relied on by the Authorised Person in defining the Terms of the Investigation; (4) Appendix III of the Notice of Commencement of an Investigation - Text of Articles 16 and 25 and of Recitals 50, 51, 52, 53 and 67 of the DSA.

10. The Notice of Commencement of an Investigation also dated 2 nd December 2025 is framed in similar terms.

11. Under the sub-heading "Inquiry Subject" the Notice of Commencement of an Investigation states at para 7 as follows:

"(7) The provider of TikTok is the inquiry subject for the purposes of the Investigation under section 139Z(1) of the 2009 Act. The precise scope of the service provider (i.e., the identity of the legal entities forming the economic unit providing the online platform TikTok) is subject to further assessment and is a matter to be established during the course of the investigation..."

1. The immediate context for this interlocutory application, therefore, relates to the investigation by the Commission in relation to the potential infringement of Articles 16(1), 16(2) (in particular Article 16(2)(c)) and 25 (in particular Article 25(1)) of the DSA in the operation of the online platform known as "TikTok" and the further inquiry, which is a matter to be established during the course of the investigation, of the precise scope of the service provider of the TikTok online platform.

2. In terms of the suspected contraventions, put briefly, the Notice of Commencement of an Investigation inquires into: (i) whether the illegal content reporting mechanisms (notice and action mechanism) implemented by TikTok are easy to access and user-friendly as per the requirements of Article 16(1) of the DSA; (ii) whether there was a failure to allow recipients of the service to report information considered to involve one of the offences referred to in Article 3 to 7 of Directive 2011/93/EU without identifying details of the reporter as required by Article 16 (in particular Article 16(2)(c)) of the DSA; (iii) whether the illegal content reporting mechanisms provided by TikTok deceive people from reporting content as illegal, contrary to Article 25 of the DSA.

3. ByteDance issued these judicial review proceedings on 22 nd December 2025.?

4. Specifically, in the substantive judicial review proceedings, the Applicant seeks to challenge the requisite decisions made, including the 'direction' dated 29 th October 2025 mandating the carrying out of an investigation pursuant to s. 139ZJ of the 2009 Act and notified to the Applicant on 2 nd December 2025 insofar as it relates to the Applicant; the 'Notice of Commencement of an Investigation under s. 139ZJ of the 2009 also dated 2 nd December 2025, again insofar as it relates to the Applicant; an order prohibiting the Commission from proceeding with the consequent investigation insofar as it relates to the Applicant; an order prohibiting the Commission from proceeding with the investigation insofar as it relates to the determination of the scope of the provider of the online platform TikTok in the EU as directed in para 2.2 of the Terms of Investigation appended to the aforesaid Direction; and an order under Article 267 of the TFEU referring such questions as the High Court deems necessary to the CJEU and an extension of time together with certain reporting restrictions; consequential orders.

5. On 19 th January, 2026 the High Court (Gearty J.) granted leave to apply for judicial review and also granted an interim stay on the investigation insofar as it related to the Applicant (see below) and fixed the 6 th March 2026 for the hearing of this interlocutory application for a stay.

6. The hearing of the substantive judicial review application is fixed for 16 th June 2026.

The Stay Application

1. The parties agree that the test to be applied in this application for a stay is that set out by the Supreme Court in Okunade v Minister for Justice [2012] IESC 49, [2012] 3 IR 152 (" Okunade ").

2. The Okuande test was applied in CC & Ors v The Minister for Justice & Ors [2016] IESC 48, [2016] 2 I.R. 680 (" CC ") in the context of an injunction application pending an appeal to the Supreme Court and in MD v The Board of Secondary School [2024] IESC 11 (" MD "). The overarching approach in considering the parties' arguments is to minimise the risk of injustice and to apply the test set out in Okunade. For ease of reference, I shall refer to the Applicant's application as being an application for a "stay" although the terms "stay" and "interlocutory application/injunction" are used interchangeably in the case law.

3. The parties also agree that the first limb of the Okunade test set out at para 104(a) of the judgment of Clarke J. has been satisfied and that the Applicant has raised a stateable or arguable case.

4. The second limb of the test involves a balancing exercise where I have to weigh and assess the potential injustice that might result from, on the one hand, intervening in favour of the Applicant only to find that it subsequently loses, as opposed to not intervening in favour of the Applicant only to find that it prevails in its substantive action. The same exercise applies mutatis mutandis to the Commission.

The balancing exercise

The factors to be considered

1. At the forefront of the balancing exercise in weighing up the competing arguments and facts which apply in this application for a stay is the ascertainment of where the greatest risk of injustice lies.?

2. In seeking to assess where the greatest risk of injustice would lie, the following factors inter alia inform the balancing exercise to be carried out and a court must:

i. give all appropriate weight to the orderly implementation of measures which are prima facie valid;

ii. give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made;

iii. give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings;

iv. give all due weight to the consequences for the Applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful;

v. in those limited cases where it may be relevant, a court should have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages;

vi. where the judicial review application does not involve detailed investigation of fact or complex questions of law, a court can place all due weight on the strength or weakness of the Applicant's case.

1. The weight to be applied is dependent on the facts of any individual case.

2. In MD, Collins J. restated that interlocutory injunctions or stays in public law proceedings should not be made reflexively or as a matter of routine and that any views to the contrary had been dispelled by the judgment of the Supreme Court in Okunade.

3. Rather, the entitlement of those conferred with statutory or other power or authority to make legally binding decisions was an important part of the structure of any legal order based on the rule of law and it followed that significant weight must be given to permitting measures that are prima facie valid to be 'carried out in a regular and orderly way'. All due weight needed to be accorded, therefore, to allowing the systems and processes by which lawful power was to be exercised to operate in an orderly fashion.

4. Whilst the default position is that an applicant will not be entitled to a stay or an injunction, as part of the balancing exercise, Okunade and MD also acknowledged that there would be cases where there would be compelling considerations going the other way. Depending on the facts of any individual case, there could be further factors that can properly be taken into account on either side, including, for example, if the activity was contrary to the public interest that would be a factor to which significant additional weight would lie on the side of refusing a stay and alternatively, in the circumstances of a deportation order, for example, where an applicant would suffer material prejudice in the presentation of the case at trial if he or she was not present, that would attach great weight in the granting of an injunction or stay in those circumstances.

5. Ultimately, when asked to make an order which has the effect of suspending or otherwise significantly affecting the due implementation of a presumptively valid public law measure - whether in the form of a stay or an injunction - a court should consider doing so only after carefully identifying and weighing all of the rights and interests engaged i.e. I am required to weigh and balance the competing factors and arguments which apply in this particular case in seeking to assess and determine where the greatest risk of injustice lies.

6. In carrying out this balancing exercise in the context of the facts of this case, I am of the view, for the following reasons which are set out in this judgment, that the greatest risk of injustice would lie in the granting of a stay including that which is sought in the limited terms described below. For the reasons set out in this judgment, I shall, therefore, refuse the stay sought.

APPLICATION OF THE TEST

The limited nature of the stay

1. Insofar as the stay is concerned, when the ex parte application for leave to apply for judicial review was made on 19 th January 2026, the High Court (Gearty J.) initially granted stays in the following terms:

i. An order staying the Direction and/or the Notice of Commencement and/or the Investigation insofar as they relate to the Applicant until 6 th March 2026.

ii. An order staying the Direction and/or the Notice of Commencement and/or the Investigation insofar as it relates to the determination of the scope of the provider of the online platform TikTok in the EU as directed in para 2.2 of the Terms of the Investigation appended to the Direction until 6 th March 2026.

1. At the close of the hearing of this interlocutory application on 6 th March 2026, I continued the stay in the terms ordered by Gearty J. until the delivery of this judgment today, Thursday 26 th March 2026.

2. I considered that this was an appropriate order to make having regard to the observations of the Supreme Court in MD where at para 42 of his judgment, Hogan J. observed that in granting ** interim relief in judicial review proceedings , " that relief should be time limited, and it should also provide that the onus lies with the moving party to apply for interlocutory relief on notice to the respondent."

3. In oral submissions made on its behalf, the Applicant seeks what is described as a limited stay.

4. In pointing to correspondence between the Commission and the Notice Party (TTTL), the Applicant seeks to emphasise the early (and what is described as 'slow moving') engagement by the Commission with the Notice Party (commencing in July 2024) and its detailed response and interaction, which, it submits, stands in contrast to the first notification by the Commission to the Applicant of these matters on 2 nd December 2025. Indeed, the gravamen of the Applicant's application, and what it submits is a distinguishing feature of this stay application, is its submission that the Commission's investigatory process into the alleged infractions of Articles 16 and 25 of the DSA can continue as against TikTok Technology Limited, but not as against the Applicant.

5. Exception is strongly registered by the Applicant as to the exercise and use (and further reservation) of the powers of the Commission in relation to the Applicant and particularly in relation to seeking to ascertain the provider of the TikTok online service. It is submitted that the Commission lacks the necessary vires to commence and carry out such an inquiry in relation to the Applicant.

6. In oral submissions on its behalf, the Applicant now seeks a stay limited in time to the hearing of the judicial review proceedings which are due to commence on 16 th June 2026 i.e. effectively that there would be a stay from Thursday 26 th March 2026 to Tuesday 16 th June 2026.

7. Further, it is emphasised on behalf of the Applicant in seeking a stay in those terms, and as a central contention in relation to the Okunade criteria in general, that there has been no evidence adduced on behalf of the Commission to suggest that the stay sought would interfere with the continuation of the investigation into the suspected contraventions of Articles 16 and 25 of the DSA or would interfere with the devising of corrective action (if a contravention was found) or would suggest that TTTL on its own would not be in a position to implement any such directed corrective action.

8. Accordingly, the precise terms of the stay sought by the Applicant in this interlocutory application is as follows.

9. First, the Applicant seeks an order staying the Direction and/or the Notice of Commencement and/or the Investigation insofar as they relate to the Applicant from Thursday 26 th March 2026 to Tuesday 16 th June 2026 (on which latter date the substantive judicial review hearing commences).

10. Second, the Applicant seeks an order staying the Direction and/or the Notice of Commencement and/or the Investigation insofar as it relates to the determination of the scope of the provider of the online platform TikTok in the EU as directed in para 2.2 of the Terms of the Investigation appended to the Direction, from Thursday 26 th March 2026 to Tuesday 16 th June 2026 (again, when the substantive judicial review hearing begins).

11. In carrying out the balancing exercise, it can be seen that the further limitation of the stay applications sought from the date of the delivery of this judgment to the commencement of the hearing date on Tuesday 16 th June next, at first glance, appears to chime with the reference in MD in the context of ?interim relief sought on an ex parte basis, that any such stay should be "time limited."

12. In addition, seeking to modify the terms of the proposed stay from that which was initially sought, is a recognition by the Applicants that seeking a stay pending the determination of the proceedings, in the context of a possible preliminary reference to the CJEU by the trial judge, may have the effect of elongating the stay sought.

13. In effect, however, by seeking a stay limited to a period of approximately three months, the Applicant will be required to renew its application for a stay in line with what transpires at the substantive hearing, albeit that the trial judge assessing such an application will be familiar with the facts.

14. In further assessing these matters, as indicated earlier, it can be observed that it is often the case that interim relief is usually initially applied for on an ex parte basis. That, for example, was the very issue in MD which is authority for the proposition the High Court is not empowered by O. 84, r. 20(8) of the Rules of the Superior Courts 1986 ("RSC 1986") to grant interlocutory injunctions on an ex parte basis following the grant of leave to apply for judicial review. ?The Supreme Court held that only interim relief which is time limited may be granted in this manner, and that the moving party must apply for an interlocutory injunction, on notice to the respondent, where the moving party bears the onus of proof that the injunction should be granted.

15. Indeed, it may be the case that the observations of Collins J. at para 2 of his judgment in MD that " [i]nsofar as, in practice, there may previously have been an understanding or presumption that once a public law measure was challenged its implementation should be suspended " (and that this should now be dispelled consequent upon the judgment in Okunade) arose because of how practitioners often construed the terms of O. 84, r. 20(8) RSC 1986 and its predecessor O.84, r. 20(7) of the RSC 1986 where parties (wrongly) assumed that a stay followed 'automatically' when leave to apply for judicial review was granted.

16. O. 84, r. 20(8) RSC 1986 provides that " Where leave to apply for judicial review is granted then the Court, should it consider it just and convenient to do so, may, on such terms as it thinks fit: (a) grant such interim relief as could be granted in an action begun by plenary summons, (b) where the relief sought is an order of prohibition or certiorari, make an order staying the proceedings, order or decision to which the application relates until the determination of the application for judicial review or until the Court otherwise orders."

17. As both Hogan J. and Collins J. have said in MD, any interim stay should be time limited.

18. That was the case in this instance at the leave stage on 19 th January 2026 and also when the application was heard on 6 th March 2026.

19. In weighing up this issue and balancing the facts and arguments, I do not consider that further time-limiting the period in relation to the stays which are sought in this case to the substantive hearing i.e. effectively from Thursday 26 th March 2026 to Tuesday 16 th June 2026, is in any sense dispositive of the issue or is a factor, which in and of itself, is weighted in favour of the granting of the stays sought. If anything, it has the effect of requiring a renewed application (or seeking to continue the interim relief granted if, for example, judgment on the substantive application was reserved) notwithstanding that a full interlocutory hearing of the matter took place until approximately 3.30 pm on Friday, 6 th March 2026.

20. Also, I note that a practical approach was adopted by the Commission in continuing the interim stay (granted initially in the leave application on 19 th January 2026) at the close of the hearing on 6 th March until delivery of this judgment on 26 th March.

Orderly implementation of prima facie valid measures & the public interest in the orderly operation of the scheme

1. The substantive judicial review application in this case has been given a hearing date of 16 th June 2026 - some 11 and a half weeks after the date of this judgment. I was informed by the Applicant that while some of the issues in this substantive judicial review are common (but not identical) to two judicial review challenges brought by companies in the X Group (which have a hearing date of 9 th June 2026), the combined effect of the two applications for a stay in the X Group cases heard previously was to seek to halt the inquiry in its entirety, both in relation to the provider issue and in relation to the investigation of suspected contraventions, whereas, in contrast, in ByteDance's case, it submits that the investigation in relation to the suspected contraventions of Articles 16 and 25 can, and should, continue - albeit not against it.

2. In carrying out a balancing exercise on the pros and cons of granting or refusing a stay application and in assessing where the greatest risk of injustice lies, at para 92 of his judgment in Okunade, Clarke J. recognised that a further distinguishing feature of judicial review (or public law) applications was the entitlement of donees of a power and authority (by statute or otherwise) to conduct specified types of legally binding decision making or action taking, as an important part of the structure of a legal order based on the rule of law.

3. The facts of this case, which involves a challenge by way of judicial review to an investigation by the Commission in relation to the potential infringement of Articles 16(1), 16(2) (in particular Article 16(2)(c)) and 25 (in particular Article 25(1)) of the DSA in the operation of the TikTok online platform together with a challenge to the further inquiry, which is a matter to be established during the course of the investigation, of the precise scope of the service provider of the TikTok online platform, comprises a challenge to significant regulatory decisions with implications for the public interest. The position was described by Clarke J. in Okunade as follows:

"(92)... Recognising the entitlement of such persons or bodies to carry out their remit without undue interference is an important feature of any balancing exercise. It seems to me to follow that significant weight needs to be placed into the balance on the side of permitting measures which are prima facie valid to be carried out in a regular and orderly way. Regulators are entitled to regulate. Lower courts are entitled to decide. Ministers are entitled to exercise powers lawfully conferred by the Oireachtas. The list can go on. All due weight needs to be accorded to allowing the systems and processes by which lawful power is to be exercised to operate in an orderly fashion. It seems to me that significant weight needs to be attached to that factor in all cases. Indeed, in that context it is, perhaps, appropriate to recall what was said by O'Higgins CJ in Campus Oil v Minister for Industry (No 2) [1983] I.R. 88. At p 107 of the report, he said the following:-

"The order which is challenged was made under the provisions of an Act of the Oireachtas. It is, therefore, on its face, valid and is to be regarded as a part of the law of the land, unless and until its invalidity is established. It is, and has been, implemented amongst traders in fuel, but the appellant plaintiffs have stood aside and have openly defied its implementation."

It is clear, therefore, that the apparent prima facie validity of an order made by a competent authority was a factor to which significant weight was attributed. While the comments of O'Higgins CJ were directed to a ministerial order made under an Act of the Oireachtas it seems to me that there is a more general principle involved. An order or measure which is at least prima facie valid (even if arguable grounds are put forward for suggesting invalidity) should command respect such that appropriate weight needs to be given to its immediate and regular implementation in assessing the balance of convenience." [Underlining added in this judgment].

1. From a general administrative law perspective, a similar point was made by O'Donnell J. (as he then was) in joint-cases DPP v Carter & DPP v Kenny [2015] IESC 20, [2015] 3 I.R. 58 where at para 31 of his judgment he observed as follows:

????? "(31)... It is a general and important principle that orders made by bodies having jurisdiction to do so "bear no stamp of invalidity on their face" and may be perfectly effective as a matter of law unless and until quashed by a court of competent jurisdiction. (See Smith v East Elloe Rural Disctrict Council & Ors [1956] AC 736). Thus for example in Re Comhaltas Ceolt?ir? ?ireann (unreported; 5th December 1977), it was held by Finlay P. that a planning permission was required to be treated as valid by a District Court hearing a licensing application, and that the Court was not entitled to entertain what would amount to a collateral challenge to it. As it was put in Wade, Administrative Law (Forsyth (ed.)) (Oxford; Oxford University Press; 2000; 8th edition), p. 287, "The court will take an administrative act or order as invalid only if the right remedy is sought by the right person in the right proceedings. ""

1. Accordingly, in weighing the facts and arguments in this case and in assessing the balance between the greatest or least risk of injustice, significant weight needs to be attached to permitting measures which are prima facie valid to be carried out in a regular and orderly way and all due weight afforded to allowing the 'systems and processes' by which lawful powers are to be exercised to operate in an orderly fashion, such as in this case, the investigation by the Commission in relation to the potential infringement of Articles 16(1), 16(2) (in particular Article 16(2)(c)) and 25 (in particular Article 25(1)) of the DSA in the operation of the online platform known as TikTok and the further inquiry, which is a matter to be established during the course of the investigation, of the precise scope of the service provider of the TikTok online platform.

2. A consideration of the regulatory scheme and subsequent measures which forms the subject of the central dispute between the parties is of assistance in considering where the balance lies in the orderly implementation of prima facie valid measures and the public interest in the orderly operation of the scheme.

3. To recap, the Applicant contends that the stays which are sought will not interfere with (i) the investigation of the suspected contraventions; (ii) any corrective action that might be directed to address same; (iii) there is, it is submitted, nothing in the evidence relied upon by the Commission to suggest that the Notice Party would be unable to implement any such corrective action, which might be directed, by itself in the event that the stays were granted.

4. In terms of the balancing exercise, it is submitted on behalf of the Applicant that the investigation can proceed as against TTTL in respect of the suspected contraventions of Article 16 and 25 and that the Commission has not suggested that there was any difficulty in doing so; second, it is contended that the very short temporal limit from Thursday 26 th March 2026 to Tuesday 16 th June 2026 (when the substantive judicial review hearing will commence) is a further factor which weighs in favour of granting the stays sought; third, absent a stay, it is argued that the Applicant does not have an effective remedy.

5. Central to the balancing exercise in assessing (i) the orderly implementation of prima facie valid measures and (ii) the public interest in the orderly operation of the scheme, on the facts of this case, are the notice and action mechanisms provided for in Article 16 of the DSA and the prohibition in Article 25 of the DSA of certain practices by providers of online platforms in relation the design, organisation, and operation of their online interfaces that (a) deceive or manipulate the recipients of their service or (b) otherwise materially distort or impair the ability of those recipients to make free and informed decisions i.e. 'dark patterns' as referred to in Recital 67 of the DSA.

6. The DSA is applicable to intermediary services offered to recipients of the service that have their place of establishment or are located in the EU, irrespective of where the providers of those intermediary services have their place of establishment.

7. The 2009 Act designates the Commission as the Digital Services Coordinator and lead competent authority for the DSA. It is designed to protect EU citizens from misconduct on global online platforms and addresses serious issues of public safety, including in particular the safety of children and vulnerable people.

8. The Commission qua regulator is responsible, for example, for ensuring that TikTok complies with its obligations to ensure the safety of all of its millions of users (approximately 170 million) throughout the EU, including Ireland. The 2009 Act provides the Commission with significant investigatory powers in this regard.

9. The notice and action mechanisms, for example, provided for in Article 16 of the DSA are informed by Recitals 50 to 53 of the DSA.

10. Recital 50 of the DSA states as follows:

" (50) Providers of hosting services play a particularly important role in tackling illegal content online, as they store information provided by and at the request of the recipients of the service and typically give other recipients access thereto, sometimes on a large scale. It is important that all providers of hosting services, regardless of their size, put in place easily accessible and user-friendly notice and action mechanisms that facilitate the notification of specific items of information that the notifying party considers to be illegal content to the provider of hosting services concerned ('notice'), pursuant to which that provider can decide whether or not it agrees with that assessment and wishes to remove or disable access to that content ('action'). Such mechanisms should be clearly identifiable, located close to the information in question and at least as easy to find and use as notification mechanisms for content that violates the terms and conditions of the hosting service provider. Provided the requirements on notices are met, it should be possible for individuals or entities to notify multiple specific items of allegedly illegal content through a single notice in order to ensure the effective operation of notice and action mechanisms. The notification mechanism should allow, but not require, the identification of the individual or the entity submitting a notice. For some types of items of information notified, the identity of the individual or the entity submitting a notice might be necessary to determine whether the information in question constitutes illegal content, as alleged. The obligation to put in place notice and action mechanisms should apply, for instance, to file storage and sharing services, web hosting services, advertising servers and paste bins, in so far as they qualify as hosting services covered by this Regulation." [Underlining added].

1. Recital 51 of the DSA states as follows:

"(51) Having regard to the need to take due account of the fundamental rights guaranteed under the Charter of all parties concerned, any action taken by a provider of hosting services pursuant to receiving a notice should be strictly targeted, in the sense that it should serve to remove or disable access to the specific items of information considered to constitute illegal content, without unduly affecting the freedom of expression and of information of recipients of the service. Notices should therefore, as a general rule, be directed to the providers of hosting services that can reasonably be expected to have the technical and operational ability to act against such specific items. The providers of hosting services who receive a notice for which they cannot, for technical or operational reasons, remove the specific item of information should inform the person or entity who submitted the notice." [Underlining added].

1. Recital 52 of the DSA states as follows:

"(52) The rules on such notice and action mechanisms should be harmonised at Union level, so as to provide for the timely, diligent and non-arbitrary processing of notices on the basis of rules that are uniform, transparent and clear and that provide for robust safeguards to protect the right and legitimate interests of all affected parties, in particular their fundamental rights guaranteed by the Charter, irrespective of the Member State in which those parties are established or reside and of the field of law at issue. Those fundamental rights include but are not limited to: for the recipients of the service, the right to freedom of expression and of information, the right to respect for private and family life, the right to protection of personal data, the right to non-discrimination and the right to an effective remedy; for the service providers, the freedom to conduct a business, including the freedom of contract; for parties affected by illegal content, the right to human dignity, the rights of the child, the right to protection of property, including intellectual property, and the right to non-discrimination. Providers of hosting services should act upon notices in a timely manner, in particular by taking into account the type of illegal content being notified and the urgency of taking action. For instance, such providers can be expected to act without delay when allegedly illegal content involving a threat to life or safety of persons is being notified. The provider of hosting services should inform the individual or entity notifying the specific content without undue delay after taking a decision whether or not to act upon the notice."

1. Recital 53 of the DSA provides as follows:

" The notice and action mechanisms should allow for the submission of notices which are sufficiently precise and adequately substantiated to enable the provider of hosting services concerned to take an informed and diligent decision, compatible with the freedom of expression and of information, in respect of the content to which the notice relates, in particular whether or not that content is to be considered illegal content and is to be removed or access thereto is to be disabled. Those mechanisms should be such as to facilitate the provision of notices that contain an explanation of the reasons why the individual or the entity submitting a notice considers that content to be illegal content, and a clear indication of the location of that content. Where a notice contains sufficient information to enable a diligent provider of hosting services to identify, without a detailed legal examination, that it is clear that the content is illegal, the notice should be considered to give rise to actual knowledge or awareness of illegality. Except for the submission of notices relating to offences referred to in Articles 3 to 7 of  Directive 2011/93/EU of the European Parliament and of the Council those mechanisms should ask the individual or the entity submitting a notice to disclose its identity in order to avoid misuse."

1. In balancing and assessing where the greatest or least risk of injustice lies for the purposes of this interlocutory application, t he provisions of Article 6 (exemptions in relation to hosting) and the Notice and Action mechanisms in Article 16 of the DSA (as informed by Recitals 50 to 53 as set out above) both emphasise the importance of the identity of the provider of the online service whereby an individual or an entity can notify the service provider of, hypothetically, allegedly illegal content so that the item in question can be removed, which is in the interests of both the individual who initially notifies the alleged complaint and the service providers who receive the notification and this gives effect to the public interest in the orderly operation of the scheme as provided for in Article 16. Similar objectives were expressed in the Affidavit of John Evans, the Commission's Digital Services Commissioner at paras 18 to 20 of his Affidavit sworn on 29 th January 2026.

2. Similarly, Article 25 of the DSA dealing with online interface design and organisations is informed by Recital 67 which provides as follows:

"(67) Dark patterns on online interfaces of online platforms are practices that materially distort or impair, either on purpose or in effect, the ability of recipients of the service to make autonomous and informed choices or decisions. Those practices can be used to persuade the recipients of the service to engage in unwanted behaviours or into undesired decisions which have negative consequences for them. Providers of online platforms should therefore be prohibited from deceiving or nudging recipients of the service and from distorting or impairing the autonomy, decision-making, or choice of the recipients of the service via the structure, design or functionalities of an online interface or a part thereof. This should include, but not be limited to, exploitative design choices to direct the recipient to actions that benefit the provider of online platforms, but which may not be in the recipients' interests, presenting choices in a non-neutral manner, such as giving more prominence to certain choices through visual, auditory, or other components, when asking the recipient of the service for a decision.

It should also include repeatedly requesting a recipient of the service to make a choice where such a choice has already been made, making the procedure of cancelling a service significantly more cumbersome than signing up to it, or making certain choices more difficult or time-consuming than others, making it unreasonably difficult to discontinue purchases or to sign out from a given online platform allowing consumers to conclude distance contracts with traders, and deceiving the recipients of the service by nudging them into decisions on transactions, or by default settings that are very difficult to change, and so unreasonably bias the decision making of the recipient of the service, in a way that distorts and impairs their autonomy, decision-making and choice. However, rules preventing dark patterns should not be understood as preventing providers to interact directly with recipients of the service and to offer new or additional services to them. Legitimate practices, for example in advertising, that are in compliance with Union law should not in themselves be regarded as constituting dark patterns. Those rules on dark patterns should be interpreted as covering prohibited practices falling within the scope of this Regulation to the extent that those practices are not already covered under Directive 2005/29/EC or Regulation (EU) 2016/679."

1. In weighing up where the greatest or least risk of injustice lies for the purposes of this interlocutory application, Article 25(1) of the DSA gives further effect to the public interest in the orderly operation of the scheme in that it obliges that providers of online platforms shall not design, organise or operate their online interfaces in a way that deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions. As Recital 67 of the DSA states, this relates to ' dark patterns' in 'online interfaces' i.e. any software, including a website or part of a website and applications, including mobile applications (as per Article 3(m) of the DSA).

2. In terms of assessing the arguments in this interlocutory application, there is, I consider, weight to the argument that in any inquiry as to the potential infringement of Articles 16(1), 16(2) (in particular Article 16(2)(c)) and 25 (in particular Article 25(1)) of the DSA in the operation of the TikTok online platform, it is necessary to find out who precisely is providing the service. For example, in the designation of a very large online platform or a very large online search engine as per Article 33(4) of the DSA, the 'service' and not the provider is being designated (Article 33 of the DSA refers to 'very large online platforms and very large online search engines). Equally, in terms of the preciseness and focus of any contemplated corrective action which may arise, it is preferable that the potential subject of such a decision be identified with a degree of particularity, which gives more weight to the argument that the process of scoping continue at least until the matter is determined at the substantive hearing. The third argument raised by the Applicant in this regard - namely that TTTL can address both the investigation of the suspected contraventions and, if necessary, give effect to any corrective action - begs the very question as to the scope of the provider of the online platform TikTok in the EU. Given the requirements of Articles 16 and 25, I consider that the greatest risk of injustice would lie, at this interlocutory stage, in pausing that process of inquiry in relation to ascertaining the scope of the provider of the online platform TikTok in the EU.

3. Having regard to the requirements of Articles 16 and 25 of the DSA, and the recitals which inform those provisions, the fact that an Article 33(4) decision designates the service and not the provider, the greatest risk of injustice would lie, at this juncture, in preventing the Commission from investigating the scope of the provider of the service in parallel with the investigation as to whether contraventions have occurred.

4. In addition, Article 56 of the DSA deals with competences insofar as supervision and enforcement are concerned and is informed by Recitals 123, 124, 125 and 126. Insofar as the assessment in this interlocutory application is concerned, there is no suggestion in these provisions that the legal person designated as the main establishment is the sole entity providing the platform.

5. Recital 123 of the DSA, for example, provides as follows:

" In the interest of clarity, simplicity and effectiveness, the powers to supervise and enforce the obligations under this Regulation should be conferred to the competent authorities in the Member State where the main establishment of the provider of intermediary services is located, that is, where the provider has its head office or registered office within which the principal financial functions and operational control are exercised. In respect of providers that are not established in the Union, but that offer services in the Union and therefore fall within the scope of this Regulation, the Member State where those providers appointed their legal representative should have competence, considering the function of legal representatives under this Regulation. In the interest of the effective application of this Regulation, all Member States or the Commission, where applicable, should, however, have competence in respect of providers that failed to designate a legal representative. That competence may be exercised by any of the competent authorities or the Commission, provided that the provider is not subject to enforcement proceedings for the same facts by another competent authority or the Commission. In order to ensure that the principle of ne bis in idem is respected, and in particular to avoid that the same infringement of the obligations laid down in this Regulation is sanctioned more than once, each Member State that intends to exercise its competence in respect of such providers should, without undue delay, inform all other authorities, including the Commission, through the information sharing system established for the purpose of this Regulation." [Underlining added].

1. Article 56(1) of the DSA provides that " The Member State in which the main establishment of the provider of intermediary services is located shall have exclusive powers to supervise and enforce this Regulation, except for the powers provided for in paragraphs 2, 3 and 4 " of Article 56. Thus, the term " main establishment " is referable to the Member State where, as set out in Recital 123 of the DSA, the provider has its head office or registered office within which the principal financial functions and operational control are exercised. This reflects the focus on the 'service' as per Recital 15 of the DSA which states that " Where some of the services provided by a provider are covered by this Regulation whilst others are not, or where the services provided by a provider are covered by different sections of this Regulation, the relevant provisions of this Regulation should apply only in respect of those services that fall within their scope." Article 56 (1) deals with main establishments within the EU and Articles 56(6) and 56(7) address situations where providers have no establishment in the EU.

2. Further, as stated earlier, the decision to designate a service as a very large online platform or as a very large online search engine pursuant to Article 33(4) of the DSA is referable to the service not the provider. These provisions do not suggest, insofar as assessing the weight of matters in this interlocutory application is concerned, that the furnisher of the required information is the 'sole' or 'only' entity which constitutes the provider. Rather, these provisions focus on the 'service' and the question of the identification or scope of the provider is separate.

3. Again, solely in the context of the balancing exercise to be carried out in this interlocutory application, and in the context of the domestic Okunade criteria, on 25 th April 2023, the European Commission designated TikTok as a Very Large Online Platform ("VLOP") ** and recited the following at para 5 and 6 of the Commission Decision:

"(5) On 15 March 2023, TikTok Ltd and ByteDance, provided, separately, their observations on the preliminary findings. In their observations, neither TikTok Ltd nor ByteDance contested the proposed designation of TikTok as a very large online platform, but they argued that the designation decision should only be addressed to TikTok Ltd, since only that legal entity provides TikTok in the Union.

(6) As regards that issue, the Commission observes that the purpose of the present Decision is solely to designate TikTok as a very large online platform pursuant to Article 33(4) of the Regulation (EU) 2022/2065. While the Commission cannot exclude that the provider of TikTok online platform within the meaning of Regulation (EU) 2022/2065 may also include ByteDance, the Commission lacks the investigative powers prior to designation to obtain the necessary information to identify all legal entities forming the economic unit providing the service to be designated. In any event, and without prejudice to any position that the Commission may take regarding that issue in the future, the Commission considers that it is unnecessary to resolve that issue at this stage."

1. Further, in its decision of 5 th August 2024 in relation to the TikTok Lite Rewards programme, where TikTok was offering commitments to the Commission to do certain things following discussion with the European Commission, the EC Decision at para 2 states as follows:

"By decision of 25 April 2023, the Commission designated TikTok as a very large online platform ("VLOP") pursuant to Article 33(4) of Regulation (EU) 2022/2065 (the "Designation Decision"). On the following day, the Designation Decision was notified to TikTok Technology Limited ("TTTL") as the main establishment of the provider of TikTok in the Union within the meaning of Article 56(1) of Regulation (EU) 2022/2065. A copy of the Designation Decision was sent to ByteDance Limited ("ByteDance"), the company controlling the group of legal entities to which TTTL belongs. For the reasons set out in Section 3 below, the Commission considers TTTL and ByteDance, together with all the legal entities directly or indirectly controlled by ByteDance, as the provider of TikTok within the meaning of Regulation (EU) 2022/2065."

1. Under the sub-heading "the Provider of TikTok", the Decision of the European Commission states as follows at paras 18 to 22:

" The Provider of TikTok

(18) The Commission considers that the notion of provider under Regulation (EU)2022/2065 is a functional one and encompasses every entity engaged in an economic activity, such as the provision of intermediary services, regardless of its legal status and the way in which it is financed. Union law recognises that different companies belonging to the same group may form an economic unit and therefore may constitute a provider within the meaning of Regulation (EU) 2022/2065, if the companies concerned do not determine independently their own conduct in the market.

(19) In other areas of Union law, it has been confirmed that the conduct of a subsidiary can also be imputed to its parent where the parent exercises a decisive influence over it, namely where that subsidiary does not decide upon its own conduct on the market independently, but carries out, in all material respects, the instructions given to it by its parent company.

(20) Based on the available information, it appears that ByteDance holds a 100% equity interest in TikTok Information Technologies UK Limited, the parent company of a group of legal entities to which TTTL belongs. In fact, TikTok Information Technologies UK Limited is the sole shareholder of TTTL, which is described as the "operator of TikTok for users in the European Economic Area"

(21) These functional, economic, and organic links demonstrate that ByteDance exerts decisive influence over the provision of the service TikTok in the Union, so that it should be considered the controlling entity of a group of legal entities which together form a single economic unit constituting the provider of the TikTok service in the Union.

(22) Since only TTTL offered commitments pursuant to Article 71 of Regulation (EU) 2022/2065 to address the Commission's suspicions that the provider of TikTok had failed to comply with its obligations under Articles 34 and 35 of Regulation (EU) 2022/2065 in relation to the deployment of the rewards programme of TikTok Lite in the Union, this Decision is only addressed to that legal entity, as the main establishment of that provider in the Union within the meaning of Article 56(1) of Regulation (EU) 2022/2065. However, the Commission maintains its position that the provider of TikTok in the Union consists of both TTTL and ByteDance, the legal entity ultimately controlling the group of companies to which TTTL belongs, and therefore also sends a copy of this Decision to ByteDance." [Footnotes have been removed from this extract and are contained in the original text].

1. In terms of weighing where the greatest or least risk of injustice lies for the purposes of this interlocutory application, these decisions of the EU Commission confirm that the process of inquiring as to the true identity of the provider of the TikTok service is an aspect of the public interest in the orderly operation of the scheme and particularly so where alleged contraventions of Articles 16 and 25 of the DSA are involved.

2. Insofar as the application of Article 2(1) of the DSA provides that it "shall apply to intermediary services offered to recipients of the service that have their place of establishment or are located in the Union, irrespective of where the providers of those intermediary services have their place of establishment", Article 3(g) of the DSA defines 'intermediary service' as meaning one of the following information society services: (i) a mere conduit service (ii) a caching service (iii) a hosting service. As referred to earlier, by Article 33(4) of the DSA, the Commission designates the service but not the provider of the service. In this case, the Commission designated the service provided by TikTok as a very large online platform ("VLOP"). The DSA applies to providers of intermediary services " irrespective of where the providers of those intermediary services have their place of establishment ". This, therefore, can be within or outside the EU, as long as their services are offered to recipients of the service established or located within the EU.

3. In considering these matters, again for the purposes of weighing the competing arguments in the context of this interlocutory application, the above references by the European Commission to under the sub-heading " The Provider of TikTok " can be weighed and balanced against the matters addressed in the Affidavit of Nyam Siew Ling sworn on 22 nd December 2025, including those from paras 75 to 78 in dealing with this stay application.

4. Insofar as this interlocutory application is concerned and the application of the Okunade criteria, para 76(b) of the Affidavit of Nyam Siew Ling refers to the potential adverse consequences of measures which arise from the implementation of the scheme when it is suggested, for example, that "... the 2009 Act contains very significant potential adverse consequences within the legal framework established by its Part 8B. By way of example only, an investigation such as the investigation under Part 8B of the 2009 Act contains the potential for the Respondent to (i) legally compel information from an inquiry subject (s.139ZK of the 2009 Act); (ii) legally compel the taking by an inquiry subject of interim measures where there is serious harm before a decision can be taken in the investigation and where there is prima facie evidence that the inquiry subject has committed a contravention and this is continuing (s.139ZLB of the 2009 Act); (iii) legally compel third parties to provide information about the Applicant or the matters the subject of the Investigation (s. 139ZR of the 2009 Act);and (iv) impose an administrative financial sanction of up to 6% of turnover of an inquiry subject (s.139ZW of the 2009 Act.)..."

Heighten the risk to the public interest

1. Again, in addressing solely this interlocutory application, in giving appropriate weight to any additional factors arising on the facts as presented by ByteDance and the Commission which would ' heighten the risk to the public interest of the specific measures under challenge not being implemented" ? from Thursday 26 th March 2026 to Tuesday 16 th June 2026, when the substantive judicial review hearing commences, the prevention of the inquiry into the identification of the provider of TikTok's online services and the precise scope of the service provider i.e. the identity of the legal entities forming the economic unit providing the online platform TikTok, during this (albeit short) period would, for the reasons outlined, increase the risk to the public interest in not identifying the service provider having regard inter alia to the provisions of Articles 16, 25, 33(4) and 56 of the DSA (together with their accompanying Recitals) and would create a greater risk of injustice.

2. The alleged suspected contraventions, as itemised, invoke the provisions of Articles 16 and 25 of the DSA and preventing their further investigation between Thursday 26 th March 2026 to Tuesday 16 th June 2026 would heighten the risk to the public interest of these specific measures not being implemented.

3. At this interlocutory juncture, in terms of assessing and balancing where the greatest (or least) risk of injustice lies, and having regard to the fact that the stay is sought for 3 months to the hearing of the substantive application for judicial review, I do not consider that the fact that ByteDance's engagement with the investigation will require the expenditure of management time and resources is a factor which should be afforded any substantive weight. In weighing the competing arguments, the least risk of injustice lies in not preventing, during this 3 month period, the further inquiry of the precise scope of the service provider of the TikTok online platform during the course of the investigation of the alleged infractions of Articles 16 and 25 of the DSA notwithstanding that the investigation may involve technical complexity. Further, the question of possible sanctions is entirely premature having regard to the period sought for the stay between Thursday 26 th March 2026 to Tuesday 16 th June 2026 and the fact that the substantive hearing has yet to take place.

4. A central argument made on behalf of the Applicant is that the Commission has no power or vires to commence any inquiry or investigation in relation to it and that by doing so the Applicant is exposed to the panoply of powers which the Commission has at its disposal. In those circumstances and having regard to the facts of this case, the Applicant submits that the granting of the limited stay which is sought is an effective remedy and also suggests that such an argument does not appear to have been made in X Internet Unlimited Company v Coimisiún Na Me?n [2026] IEHC 127 (4 th March 2026) (" X (March 2026) "). Further, in Google Ireland Limited v DPC [2024] IEHC 577 the High Court (Barr J.) addressed certain prescribed admissibility criteria which comprised a prerequisite to the exercise by the DPC of its jurisdiction to hold an inquiry into alleged complaints which the court observed were not demanding or onerous. The court held that when invoking the statutory criteria and making the complaint, the complainant was required to have opened an account with 'Google' but that had not occurred in relation to one of the complainants.

5. These arguments again must be viewed in the context of this interlocutory application and the criteria set out in Okunade. This is not the forum for the final disposition of claims which will arise in the substantive hearing, and which will commence in due course on 16 th June. In the context of an effective remedy (and also addressing the non-applicability of the question of damages as referred to in Okunade), in the seeking of a much shorter (or more limited) stay i.e. from Thursday 26 th March 2026 to Tuesday 16 th June 2026, notwithstanding the Applicant's submission that it would not interfere with the substance of the investigation which the Commission wishes to pursue, it is more difficult for the Applicant to suggest that the least risk of injustice lies in preventing the investigation during this relatively short period or that ByteDance will suffer significant prejudice, including financial prejudice, by the inquiry continuing into the identity of the service provider of the TikTok online platform during this period. As mentioned at the commencement of this judgment the seeking of a stay effectively from Thursday 26 th March 2026 to Tuesday 16 th June 2026 cuts both ways.

6. The circumstances of this case are not, therefore, analogous to the irreversible damage claimed in Three Ireland (Hutchinson) Ltd & Ors v ComReg & Ors [2022] IECA 300 where if the spectrum auction had proceeded, the parties' bidding figure would be revealed or the situation in Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2018] IECA 35, [2019] 2 I.R. 503 where there was no possibility of annulling the award and no realistic prospect of damages and therefore the continued suspension of the award was necessary to ensure that Word Perfect had an effective remedy. A further contrast can be made with the financial evidence adduced in TikTok Technology Limited & Ors v DPC [2025] IEHC 619 compared to the position in this case. At para 82 of his judgment, for example, Mulcahy J. referred to the evidence adduced which identified " a number of critical business processes which will be severely impacted if access to the data is removed from CGE personnel..." At para 87 of his judgment, Mulcahy J. further refers to evidence adduced which suggested " a reasonable estimate of lost profit contribution for TikTok in the EEA is US$1.716 billion in the suspension period, being three years from the date the Suspension Order comes into effect, to include the period before it takes effect " and at para 88 to the estimation that? "... TikTok group entities, outside the EEA, will incur additional personnel costs of US$3.105 billion... "

7. In contrast, in weighing the balance, the public interest is served during this relatively short period from Thursday 26 th March 2026 to Tuesday 16 th June 2026 in the continuation of the investigation into the alleged contraventions of Articles 16 and 25 of the DSA and the further inquiry of the precise scope of the service provider of the TikTok online platform during the course of the investigation of these alleged infractions.

Consequences for the Applicant where measure may be found to be unlawful

1. In assessing the application of the Okunade criteria - including the consequences for the Applicant of being required to comply with the measure under challenge in circumstances where that measure may subsequently be found to be unlawful - to the facts of this case, both parties referred me to some recent authorities.

2. The background to the very recent judgment in X (March 2026) involves two judicial review challenges brought by X to decisions by the Commission to refer individual complaint information to its supervisory team pursuant to s. 214(4)(d) of the 2009 Act contending that these decisions were ultra vires and unlawful.

3. In X (March 2026), Ferriter J. also addressed the decision of the Court of Appeal in Barrett v The Commissioner of An Garda Síochána [2023] IECA 112 (" Barrett "), the judgment in Rowland v An Post [2017] 1 I.R. 355 (" Rowland ") and the decision in McKelvey v Iarnród Éireann [2019] IESC 79 (" McKelvey ") and observed that these decisions generally involved disciplinary or employment law issues whereas Okunade emphasised the weight to be attached to the orderly implementation of public law decisions which enjoy the presumption of validity.

4. While that substantive challenge has yet to be heard, the High Court (Ferriter J.) refused X's application for a stay on the use by the Commission of any of the relevant complaint information pending the determination of the judicial review proceedings.

5. At para 51 of his judgment, Ferriter J. described the application for a stay in that case in the following terms:

" (51) The applicant presented its arguments in favour of the grant of a stay in the following way. It submitted that if a stay is not granted An Coimisiún will (on the applicant's case) engage in "an undefined extra statutory investigative process, the parameters of which are entirely unclear". If the complaints the subject of the impugned decisions and the complaint information derived from those complaints are used in further potential enforcement action by the Commission, that will inevitably lead to such further action being challenged by the applicant which will lead to a waste of the parties' and the court's resources. The applicant contends that it is at risk of being vexed by continued investigations and potential further action based on information which it contends cannot be lawfully used as An Coimisiún seeks to use it. The applicant emphasises that the nature of the challenge on the core point brought in these two proceedings goes to the very root of An Coimisiún's processes; this is not a situation where a procedural unfairness is complained of in an otherwise valid process, which procedural fairness could be rectified; rather, the applicant in these proceedings seeks to challenge the very basis of An Coimisiún being entitled to use the information obtained from the individual complaints processes by transferring it to its supervisory team. "

1. In assessing where the least or greatest risk of injustice lay for the purposes of the interlocutory application before him, at para 71 of his judgment in X (March 2026), Ferriter J. referred to the judgment in Amazon Services Europe v Commission (Case C- 639/23P(R) (23 March 2024) where it was stated (at para 155) that the DSA " is a central element of the policy developed by the EU legislature in the digital sector. In the context of that policy, that regulation pursues objectives of great importance, since it seeks, as is apparent from recital 155 thereof, to contribute to the proper functioning of the internal market and to ensure a safe, predictable and trusted online environment in which the fundamental rights enshrined in the Charter are duly protected." This spoke to the public interest in the orderly operation of the scheme as stipulated in Okunade.

2. Likewise, in balancing the consequences for the Applicant of being required to comply with the measure under challenge in circumstances where that measure may subsequently be found to be unlawful, in the event that the Applicant was to ultimately prevail after the substantive hearing on what was described as the central vires issue i.e. the contention that there is no legal basis for the Commission's inquiry as to who is the provider of the TikTok online service, when assessing where the least or greatest risk of injustice lies during the 3 month period, I do not consider that the Applicant's participation in this inquiry into the precise scope of the service provider of the TikTok online platform in the context of the continuing investigation into the alleged infractions of Articles 16 and 25 of the DSA and its exposure to the Commission's investigatory powers under the 2009 Act and the DSA outweighs the public interest in seeking to determine the make-up of the service provider in this case, or that such inquiry will cause irretrievable harm or the denial of an effective remedy to the Applicant.

CONCLUSION/SUMMARY

1. This interlocutory application for a stay involves the application to the facts of this case of the Okunade principles in assessing where the greatest risk of injustice lies in assessing the application by ByteDance for a stay for a period of approximately 3 months in relation to the Commission's statutory investigation of alleged infractions of Articles 16 and 25 of the DSA in the operation of the TikTok online platform, insofar as it concerns ByteDance, and the further inquiry, which is a matter to be established during the course of the investigation, of the precise scope of the service provider of the TikTok online platform.

2. The stay sought is bookended in time from the delivery of this judgment, today, to the hearing of the substantive judicial review application on Tuesday 16th June 2026. Clearly, the assessments made in today's ruling, in this application, are limited to this interlocutory application for a stay. The disposition of the points raised by the Applicant in the substantive judicial review application will be determined, in the first instance by the trial judge, at the hearing which commences on Tuesday, 16th June 2026.

3. As in the balancing exercise which is generally involved in this interlocutory application, the limited stay sought has pros and cons for each of the parties.

4. Ultimately, the application of the Okunade criteria to the facts and circumstance of this case involved weighing the arguments and assessing where the greatest risk of injustice lies over the three month period, having regard to the DSA and the 2009 Act, and in particular the application of the scheme envisaged by Article 16 (informed by Recitals 50 to 53), Article 25 (informed by Recital 67), Article 33(4), and Article 56 of the DSA (informed by Recitals 123 to 126) to the TikTok online platform, in the context of an inquiry as to the possible involvement, or not, of ByteDance and all done through the prism of assessing the orderly implementation of prima facie valid measures, the public interest in the orderly operation of the scheme, whether the risk to the public interest would be heightened by these measures not being implemented and to the consequences for ByteDance if they ultimately prevail in their substantive judicial review application.

5. When assessed and balanced against these criteria, and for the reasons set out in this judgment, I am of the view that the greatest risk of injustice would lie in granting the stay sought and therefore I refuse this application.

6. In the circumstances, for the reasons set out in this judgment, I shall make an order refusing the Applicant's application for a stay.

?????? CONLETH BRADLEY

26 th March 2026

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