AC-2025-LON-001365 - [2025] EWHC 2086 (Admin)

The reasoning in respect of victim status and standing under ground (3) applies equally to ground (4) so far as that is based on article 14 of the Convention. For that reason, I refuse permission on ground (4). There are, however, additional difficulties with the claimants’ case on ground (4).

Article 14 of the Convention gives a right to the enjoyment of other Convention rights without discrimination on a specified ground. That can include an obligation to treat differently persons whose situations are significantly and relevantly different (or, otherwise, to provide an objective and reasonable justification for treating them in the same way): Thlimmenos v Greece (2000) 31 EHRR 12 at [44], R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21; [2019] 1 WLR 329 per Baroness Hale at [136].

The claimants’ complaint under ground (4) (whether presented as an irrationality challenge or a breach of article 14) is that the Secretary of State should have drawn a distinction between non-profit making charities such as the first claimant and major highly profitable technology companies (such as Alphabet, Meta and X) that run large social media and chat platforms (such as Facebook, Instagram, YouTube and X). The premiss for the complaint is that the legislation was intended to target “profit making social media companies”. The premiss is, however, misplaced. Although it is possible to point to instances of political rhetoric where reference has been made to the profits made by companies in Silicon Valley, nothing in the legislation (or in the permissible aids to its interpretation) show that its focus was limited to any particular type of company. Rather, it is clear that it is intended broadly to capture and regulate online companies that give rise to different types of risk across a wide range of online providers of different types.

There are some forms of risk that may be inherently less acute in the case of a non-profit making charity. For example, if such a charity does not carry adverts, then fraudulent advertising will not be an issue. But there is no evidence that the broad risks to public discourse that are intended to be captured by a Category 1 designation are limited to profit-making companies. On the evidence, the fact that the first claimant does not make a profit does not distinguish it from other online providers so far as concerns its potential to influence public discourse.

For these reasons, I refuse permission to claim judicial review on ground (4).