Pressing the regulatory pause button pre-trial

In its recent judgment in TikTok Technology Limited v Data Protection Commission, the Supreme Court has clarified the test to be satisfied by an applicant seeking a pre-trial stay suspending the operation of a regulatory decision of general effect, intended to protect the rights and interests of service users.

Background

In this case,¹  the Data Protection Commission (“DPC”) determined that TikTok had infringed certain provisions of the GDPR. It directed TikTok to (a) suspend the transfer of certain personal data outside of the EEA; (b) bring data processing into compliance with the GDPR; and (c) pay administrative fines. 

TikTok brought a statutory appeal against the decision. This acted as an automatic stay on the fines and TikTok obtained a stay in the High Court on the remaining two directions pending the hearing of the statutory appeal.

 The DPC then appealed the High Court decision to grant the stay. On a leap frog appeal, the initial issue for the Supreme Court was whether, given the EU aspect to the proceedings, the correct test to be applied to the application for a pre-trial stay was one of national or EU law. 

Decision of the court

The Supreme Court was satisfied that the applicable legal test was one of national law. Murray J referred to the test in Okunade².  In that case, the court had set out the factors to be taken into account when deciding whether to grant a stay of an administrative decision in judicial review proceedings. 

However, in contrast to cases such as Okunade, the administrative decision in the matter now before the court did not just directly affect one or a small number of persons but also potentially affected the interests of many of TikTok’s users, whose fundamental rights in the protection of their personal data could be impacted by the DPC’s decision and the suspension of that decision.

Here, the DPC’s decision was akin to a legislative measure of general application and the same test should usually be applied to the grant of a pre-trial stay here. 

In summary, Murray J explained that the test should be reconfigured for applications seeking to stay the operation of regulatory decisions of general effect intended to protect the rights and interests of users of services such as that in issue here. These orders should be viewed as wholly exceptional. Such a stay should only very rarely, if ever, be granted unless the court was satisfied that the applicant had established a strong case, as defined by Murray J in his judgment. 

If such a strong case was established, the court would only rarely be concerned with whether the loss or damage caused by the refusal of the stay was capable of calculation, and would more commonly be addressing itself to the balance of justice between the impact on the applicant if the stay was refused and it succeeded in its challenge, and the impact on the public interest or rights of third parties if the stay was granted and the applicant failed in their case.³

In this case, the stay application had been overtaken as TikTok’s statutory appeal had now been heard and judgment was awaited. However, Murray J commented that based on the facts before the court, had a strong case been established, the High Court would have been justified in granting a stay. He dismissed the appeal. The stay would be continued until the DPC chose to revisit the matter before the High Court.

Comment

This is a significant judgment from the Supreme Court as the test set out by Murray J will have wider application beyond the industry concerned and will be of interest to regulators and those operating in regulated industries alike. A seven-step test set out in Murray J’s judgment provides a useful guide to those advising in the area, subject always to his proviso that the grant of a pre-trial stay in proceedings such as those before the court should be regarded as a “wholly exceptional” remedy.

For legal advice or further information please contact Jill Callanan, Partner or Heather Mahon, Managing Associate on our Litigation and Regulation team or you usual contact on our Privacy and Data Protection team.

¹ TikTok Technology Limited v Data Protection Commission [2026] IESC 27. Murray J delivered the leading judgment with a concurring judgment delivered by Hogan J.

² Okunade v Minister for Justice Equality and Law Reform [2012] IESC 49.

³ The test is set out in full at paragraph 114 of the judgment.