On February 1, 2023, the European Commission published its guidance of the obligation to publish numbers of users of very large online platforms (VLOPs) and very large online search engines (VLOSEs). With the Q&A structure, the guidance answers the questions posed by several providers of intermediary services in regard to Article 24(2), correspondent to recital 77 and Articles 3(m), (p) and (q) and 33 of Digital Services Act (DSA).
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Article 24(2) Digital Service Act
First of all, the Article 24(2) DSA requires the providers of online platforms and online search engines by February 17, 2023 and at least once every 6 months after that to publish information on the average monthly active recipients of their service in the Union on their online interface. Then, such numbers also allow to define the VLOPs and VLOSEs which are the platforms or search engines reaching the threshold of 45 million average monthly active recipients of the service within the Union.
“Active recipients” on the online platform and online search engines
Second, the guidance attempts to clarify the criteria to determine “active recipient” by referring back to the recital 77 but does not provide the specific methods which the online platforms and online search engines should apply. Meanwhile, it appears that the European Commission and the competent Digital Services Coordinator of the Member State may not require the service providers to notify them of the information in question upon publication.
Not only recipient purchasing or registered, but also traders
Third, the guidance underlines that the provider of an online platform, where the consumers can conclude distance contracts with traders, will have to count all recipients interacting with their services, including both consumers and traders, as well as the third party advertisers in order to calculate the average monthly active recipients of their service. Accordingly, “all recipients exposed to the information on the online interface of an online platform have to be counted as active recipients”. The concept of “active recipient” excludes “incidental use of the service by recipients of the services of other providers of intermediary services that indirectly make content hosted by the provider of relevant online platform available through linking or indexing by a provider of online search engine”.
In conclusion, this guidance might not satisfy the questions posed by the public (see the critique of W. Seinen from Pinsent Masons https://www.pinsentmasons.com/out-law/news/digital-services-act-active-recipients-guidance-fails-to-illuminate).
Full text:
https://digital-strategy.ec.europa.eu/en/library/dsa-guidance-requirement-publish-user-numbers
More about the DSA on AstraIA Gear: https://www.astraiagear.com/2023/02/01/ec-study-impact-of-digital-advertising-developments-on-privacy/