The EC publishes its Q&A on the requirement to publish user numbers for certain services in scope of the DSA.
Update
On 1 February 2023, the European Commission (EC) published the answers (Q&A) to various questions it has received from entities that are in scope of the EU Digital Services Act (DSA) on the provisions concerning the obligation to publish information on the average monthly active recipients of the service within the EU. The average monthly active recipients of the service will be used to designate whether online platforms and online search engines, who are within the scope of the DSA, are to be considered "very large online platforms" (VLOPs) or "very large online search engines" (VLOSEs).
Recap on the DSA
To quickly recap, the DSA applies to 'online intermediary services'. These are either (i) 'mere conduit services'; (ii) 'caching services'; or (iii) 'hosting services', and, in each case, where such services have users established or located in the EU.
The DSA categorises a subset of services called 'online platforms ' and 'online search engines', which have more obligations placed on them. Online platforms are hosting services which make the stored information available to the public at the user's request, while search engines are intermediary services that allow users to input queries in various forms in order to perform searches and obtain results related to the query.
The DSA was published in the Official Journal of the European Union on 27 October 2022 and the majority of its provisions will take effect from 17 February 2024. However, providers of online platforms and online search engines will need to publish information about their average monthly active service recipients/users in the EU (Monthly EU Service Recipients) (calculated as an average over the period of the past six months, in a publicly available section of their online interface) by 17 February 2023. This must then be refreshed once every six months.
If an online platform or an online search engine has at least 45 million average monthly active recipients in the EU, then they will be designated as very large online platform (VLOPs) or a very large search engine (VLOSEs). VLOPs and VLOSEs are subject to enhanced compliance and risk assessment obligations related to the information available on their platforms, including regarding the dissemination of illegal content, the exercise of fundamental rights, the integrity of electoral processes and the protection of minors.
Q&A
Since the adoption of the DSA, several organisations have contacted the EC with practical questions concerning the obligation to publish information on the Monthly EU Service Recipients. The Q&A seeks to answer those questions but effectively restates much of the information already available in the DSA, in particular recital 77.
The key takeaways from the Q&A are:
- Hybrid marketplaces: If a provider's online interface includes both first party and third party content (for which it is an intermediary), then all recipients of the service must be counted. This is significant for 'hybrid' marketplaces that offer both their own and third party products.
- Active recipients includes traders and third party advertisers: The Q&A confirms that 'traders' (ie a person or entity acting in their capacity (or someone else's behalf) for purposes related to their trade, business, craft or profession) and third party advertisers (ie "recipients that interact with their services by requesting the provider to store and present their advertisement on their online platform to other recipients of their services") should be included within the Monthly EU Active Users.
- No obligation to notify: The DSA does not oblige providers of online platforms and of online search engines to notify the EC Commission or to the competent Digital Service Coordinator, or any other competent national authority about the Monthly EU Service Recipients, unless they are specifically requested to do so pursuant to Article 24(3) DSA. However, the Q&A does encourage providers to provide the number of Monthly EU Service Recipients and the calculation method to the EC and Digital Service Coordinators at the same time as they are published.
- No requirement to profile or track users to avoid double counting: The obligation to count Monthly EU Active Users does not require (or permit) providers to profile and track users in order to avoid "double counting". The Q&A further states that the DSA does not give rise to a ground to process personal data or track users. Providers that have the technical means to identify inauthentic users, such as bots or scrapers, may discount such users when calculating the Monthly EU Active Users.
- Easily accessible: Online platforms and online search engines should ensure the information on the Monthly EU Service Recipients is easily available and accessible on their online interfaces, to "facilitate the automated identification of published information and any updates to that information".
- Clarification of "active" recipient: Recital 77 of the DSA states that those users who have "actually engaged" should constitute the Monthly EU Active Users. The Q&A clarifies that:
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- such engagement all recipients engaging with the service "for instance, by viewing or listening to content disseminated on the online platform - or by providing such content, for instance, in view of selling or advertising a product or service – will have to be counted as active recipients of the service for the purpose of the DSA" and "the concept of active recipient of the service does not necessarily coincide with that of a registered user of a service or a user that has carried out a transaction on the online platform"; and
- all recipients exposed to the information on the online interface of an online platform have to be counted as active recipients. This means that not only buyers or registered users are to be counted as active recipients.
Readers should note that the Q&A is stated as being is "subject to review based on practical experience acquired in the months to come" and, as ever, the Q&A is stated as being without prejudice to any decision or position of the EC.
Next Steps
Providers of online platforms and online search engines with recipients in the EU should already should already be thinking about how to calculate the average number of Monthly EU Service Recipients for their service ahead of the 17 February 2023 deadline. Whilst the Q&A does not expand massively on the text of the DSA, it serves as a useful reminder that the impact of the DSA is fast approaching and providers of online platforms and online search engines should be considering whether their systems, policies and processes enable them to calculate, on an ongoing basis, the number of average Monthly EU Service Recipients on a six monthly basis, in addition to complying with the requirements of the DSA more broadly.
Originally published 07 February 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.