On February 1, 2023, the European Commission (EC) published Guidance on the requirement to publish user numbers under the Digital Services Act (DSA).1 The Guidance contains important information for providers of online platforms and online search engines that are required to publish the average monthly number of recipients of their service by February 17, 2023.

Providers with 45 million or more average monthly users may be designated as “very large online platforms” (VLOPs) or “very large online search engines” (VLOSEs) under the DSA. These categories of services are required to comply with the most extensive obligations under the legislation. Significantly, providers designated as VLOPs or VLOSEs under the DSA are required to comply with the legislation four months after notification by the EC, even if that date falls before February 17, 2024 (the date on which the DSA becomes generally applicable). The user numbers must be published in a publicly available section of the provider’s online interface.

Who Should Be Considered an “Active Recipient of the Service”?

The Guidance states that the information published should reflect all recipients that have actually engaged with the service at least once in the previous six-month period. In practice, this means that all recipients engaging with the service (for instance, by viewing or listening to content disseminated on the online platform, or by providing such content) should be counted as active recipients of the service. The Guidance clarifies that:

  • The concept of active recipient of the service does not necessarily coincide with that of a registered user. Where users can have access to content without being registered or logged in, they should be counted as recipients.
  • On online platforms allowing consumers to conclude distance contracts with traders, both consumers that use online platforms as well as traders that offer products or services on those platforms should be considered active recipients of the service. It is irrelevant whether the recipient ends up buying the product or contracting the service.
  • Third-party advertisers requesting that the provider store and present their advertisement on their online platform should be considered recipients of the service.
  • Providers of online search engines should only consider the users that actively submit a query and receive search results as active recipients.

Who Should Not Be Considered an “Active Recipient of the Service”?

To avoid double counting, the Guidance states that where a recipient uses different online interfaces of a service (such as websites or software applications), or different devices to access a service, they should only be considered once as an active recipient of the service. In addition, providers that have the technical means to identify inauthentic users, such as bots or scrapers, may discount such users when calculating the average monthly active recipients of their services.

No Requirement to Notify the European Commission

The Guidelines clarify that providers do not need to submit their user numbers to the EC directly unless ordered to do so under Article 24(3) DSA. Nevertheless, the EC “encourages” providers to send these details to a dedicated mailbox identified in the Guidelines, during the initial period of the DSA’s application.

Conclusion

The Guidelines provide answers to a number of questions raised by the implementation of the DSA. Companies should review the document in detail when evaluating the number of active recipients of their services. It should be noted that the EC states that the Guidance may be subject to review based on practical experience acquired in the months to come.

For more information, please contact Laura De Boel or another member of the firm’s privacy and cybersecurity practice.

Alexandre Lépine and Tom Evans contributed to the preparation of this Wilson Sonsini Alert.

[1]Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC, published in the official journal of the European Union on 27 October 2022 and entered into force on 16 November 2022.