Yesterday, 01 February 2023, the Commission published guidance on how online platforms and search engines within the scope of the Digital Services Act (DSA) should comply with their obligation to report user numbers in the EU.
As highlighted in our recent update, the DSA requires providers of online platforms and of online search engines to publish, by 17 February 2023, information on the average monthly active recipients of their services in the EU, on their publicly available online interfaces. The number must be calculated as an average over the period of the past six months.
Online platforms/search engines, whose numbers reach the threshold of 45 million average monthly active recipients in the EU, will be designated by the Commission as very large online service providers (VLOPs) or very large online search engines (VLOSEs). However, the Commission is not bound by information provided by online service providers, – it may use other available data or request additional information.
While the guidance is not ground breaking, it provides a helpful interpretation of certain provision of the DSA.
In relation to the calculation of active recipients of the service, the guidance stipulates the following:
- To be counted as an “active recipient” of the service, it is not necessary for a recipient to purchase a product or a service through an online marketplace. Instead, it is enough for a recipient to engage with the service when they interact and are exposed to the information contained in an online interface of an inline platform (including illegal content). Engagement is not limited to interacting with information by clicking on, commenting, linking, sharing, purchasing or carrying out transactions on an online platform.
- To be counted as an “active recipient” of the service, it is not necessary for a recipient to be a registered / logged-in user of a service.
- The obligation to count active recipients of the service does not require nor permit providers to profile and track users in order to avoid “double counting”. The DSA should not be understood as providing grounds to process personal data or track users.
- Providers of hybrid online platforms allowing consumers to conclude distance contracts with traders (i.e. those providers that offer their own products or services alongside third-party products and services) must count all visitors to their platforms as “recipients of the service”, regardless of the origin of the content.
- Providers of online platforms that allow consumers to conclude distance contracts with traders must count all recipients interacting with their services, including both consumers and traders, when calculating the average monthly active recipients of their service.
- Providers of online platforms must also count 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.
The guidance also clarifies that providers are not required to notify the published numbers to the Commission. However, online service providers are encouraged to communicate this information, together with methodology used for the determination of the user numbers, to the Commission and to the Digital Services Coordinator of the Member State of their establishment (once designated), at the same time that they publish that information on their online interfaces.
The providers need to ensure that information on the number of recipients of the service is easily available and accessible on the online interface of their online platform or their online search engine.
For more information on this topic, please contact Andrea Lawler, Partner, Commercial & Technology, Karina Khusainova, Senior Legal Advisor, Commercial & Technology or any member of A&L Goodbody’s Commercial & Technology team.