Following the publication of Coimisiún na Meán (“CnaM”) guidance in February 2026 (see guidance here), Matheson was pleased to host a client webinar to spotlight what to expect from the Article 40(4) of the Digital Services Act (“DSA”) process whereby CnaM can request a Very Large Online Platform (“VLOP”) or Very Larg Online Search Engine (“VLOSE”) established in Ireland to provide data to vetted researchers.
CnaM has not exercised its power to date and there has been a report of one application having been rejected by CnaM. Given that most VLOP and VLOSEs are established in Ireland and survey evidence indicates a high level of research interest in using the Article 40(4) process, case law in this area is likely to develop quickly.
We see the Article 40(4) process as novel and challenging for all involved. While CnaM and regulated entities are used to considering complex facts and making difficult judgements, the Article 40(4) process is extra challenging in particular because it involves (i) more direct stakeholders than normal (researcher(s), research institutions, CnaM-appointed expert, mediator etc, as well as CnaM and regulated entity), (ii) inherently complex evaluations, including for example of (a) a regulated entity’s confidentiality and data security concerns, and (b) whether or not a particular piece of proposed research “contributes to the detection, identification and understanding of systemic risks”, (iii) many pieces of relevant legislation outside of the DSA, including the Copyright Directive and the GDPR for example, and (iv) an unusual need for ongoing oversight by CnaM post-access, up to and including a power to terminate data access after it has been granted if it is determined that the vetted researcher conditions are no longer met.
Steps in the process
CnaM can accept applications for Article 40(4) data access from vetted researchers in respect of VLOPs or VLOSEs established in Ireland. Alternatively, a vetted researcher can apply to the Digital Services Coordinator (DSC) regulator in their home country and that DSC will forward the application onto CnaM where applicable. In terms of the role of the European Commission, it will be kept informed of key process steps by CnaM etc.
The following are key steps in the process of an application being processed:
- Application made by researcher(s)
- Initial assessment
Note: An initial assessment is carried out by the DSC before transmitting the application to CnaM if applicable and represents a preliminary view only (including, where relevant, a view on whether the application is incomplete).
- Full assessment
Note: A full assessment, by contrast to the initial assessment, is conducted by CnaM and involves substantively considering the application and supporting documentation with a view to making a final decision on whether the applicant has demonstrated that they meet the designation conditions set out in Article 40(8) DSA.
- Reasoned request issued to VLOP / VLOSE
Note: If a VLOP/VLOSE believes that the researcher is not entitled to any data whatsoever under DSA rules, it may need to challenge the Reasoned Request under the Irish Broadcasting Act appeal routes at this point and tight limitation periods for doing so would apply.
- Amendment requests by VLOP / VLOSE
- Mediation
- Data access granted / agreements executed etc
- Ongoing monitoring of compliance with terms of data access (with potential for withdrawal of access at any time)
What’s next
While we are at a very early stage in the Article 40(4) process, we expect that it will not be long before CnaM exercises its power to issue a ‘reasoned request’ requiring a VLOP or VLOSE to provide non-public data to a vetted researcher. We can hope that more feedback from those involved in live applications will inform all stakeholders’ understanding going forward.
In the meantime, it is important that all stakeholders are aware of the potential implications and practical workings of the Article 40(4) process in Ireland.
Contact us
If you have any questions on this article, please contact our partners Kate McKenna or Sarah Jayne Hanna.