February 6, 2023
The Commission says that, ahead of the DSA’s entry into effect, several intermediary services providers have contacted it raising certain practical questions in relation to the obligation to publish information on user numbers under the DSA. Accordingly, the Commission has published guidance aiming to answers those questions.
The Commission notes that the obligation to publish information on the average monthly active recipients of a service in the EU is also relevant to the identification of very large online platforms (VLOPs) and very large online search engines (VLOSEs). The questions raised by providers concern Article 24(2) and recital 77 of the DSA, as well as Articles 3(m), (p) and (q) and Article 33.
Essentially, the DSA requires providers of online platforms and of online search engines to publish for each online platform or search engine they operate, by 17 February 2023, and at least once every six months thereafter, information on the average monthly active recipients of their service in the EU. This figure must be calculated as an average over the period of the past six months in a publicly available section of their online interface. The DSA further establishes a threshold of 45 million average monthly active recipients of the service in the EU as the criterion to identify VLOPs and VLOSEs.
The guidance aims to answer the following questions:
- What is the scope of the obligation under the DSA concerning the identification and counting of average monthly active recipients of the service?
- What does “publish […] information on the average monthly active recipients of the service in the Union” in Article 24(2) mean? Are providers obliged to publish the actual number of active recipients of their service on their online interface?
- Does the DSA require providers to notify the published numbers to the Commission?
- Where must a provider publish the information?
- When is a recipient of an online platform service considered to be an “active recipient” of the service?
- When is a recipient of an online search engine service considered to be an “active recipient” of the service?
- Do providers of online platforms that allow consumers to conclude distance contracts with traders need to count only consumers as active recipients or also traders offering their products or services on those platforms?
- Do providers of online platforms also need to count third party advertisers using those platforms to advertise products or services?
- Do only recipients of the service that have purchased a product or a service through an online marketplace need to be counted as “active recipients” of the service?
- Do only registered recipients of the service need to be counted as “active recipients” of the service?
- Do users that click on a link by mistake or that make superfluous visits to the online platform or to the online search engine need to be counted as “active recipients” of the service?
- Are providers obliged to avoid double counting or counting inauthentic users (e.g. bots)?
- Should 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, be required to count all visitors to their platforms as “recipients of the service”?
To access the guidance, click here.