First Requirement under the Digital Services Act for Online Platforms and Search Engines to Enter Into Force
12 February 2023
The Data Services Act (“DSA“) was entered into force in November 2022. While most of its provisions would start to apply from 17 February 2024, it provides a few requirements that would start to apply earlier. One of these requirements, set forth in Article 24(2) to the DSA provides that: “by 17 February 2023 and at least once every six months thereafter, providers shall publish for each online platform or online search engine, in a publicly available section of their online interface, information on the average monthly active recipients of the service in the Union, calculated as an average over the period of the past six months…”
Pursuant to Article 3 to the DSA, an Online Platform is a hosting service that at the request of a recipient of the service, stores and disseminates information to the public. A Search Engine is defined an intermediary service that allows users to input queries in order to perform searches of websites (Collectively, “Online Platform(s)“).
Consequently, Online Platforms that meet the above definition are obliged to publish by 17 February 2023 on their receptive websites the number of recipients of their service or product in the EU in the past six months.
In light of the above, recently the EU Commission (the “Commission“) has published its guidance on the matter to assist with complying to the new regulatory requirement. The Commission’s guidance provides answers to prevalent questions regarding publication of such information.
To assist with understanding the new requirement and the Commission’s guidance, we have highlighted below the main areas an Online Platform should pay attention to before publishing the report.
1. Who is a recipient of the service?
An “Active Recipient of an Online Platform” per Article 3(p) and Recital 77 to the DSA is a recipient of the service that has engaged with an Online Platform at least once in the past six months. Engaging with an Online Platform would be to request the Online Platform to host information or being exposed to information disseminated on the Online Platform.
However, Recital 77 of the DSA states that engaging with an Online Platform is not limited to direct interactions with the Online Platform, such as clicking, linking or sharing information, and according to the guidance, viewing or listening to content is also considered as engagement with the Online Platform. For evidence of doubt, recipients of the service include consumers, business users and traders, and are not limited solely to registered users of the Online Platform.
You should not publish specific tracking of individuals of personal data of your users.
You should attempt to discount any automated users.
2. Should you notify the Commission that you have published the report?
No. The DSA does not require Online Platforms to notify the number of active recipients of the service to the Commission, the competent Digital Service Coordinator or any other national authority unless it had received a specific request to do so.
However, per the guidance, you are advised and encouraged to communicate the report to the Commission by submitting it to the following email address: CNECT-DSA-Registry@ec.europa.eu
3. Where should you publish the report?
The report must be published on a public, accessible section on your website.
4. Should you count third-party advertisers?
Yes. As third-party advertisers on Online Platforms interact with the services by storing and presenting the advertisement on the online interface, they are considered as recipients of the service and should be counted.
5. What are the obligations of Marketplaces?
Marketplaces are defined under the DSA as Online Platforms that facilitates distance contracts between consumers and traders. Therefore, Marketplaces must count all recipients that interact with their services, including consumers, traders and users viewing listings displayed on the Marketplace (regardless of if they have made a purchase of a product or service) and viewers of content that is unique to the Marketplace or was created by the Marketplaces provider.
6. Should you count incidental recipients of the service?
No. Per Recital 77 of the DSA, an individual will not be considered as a recipient of the service if it had used the service incidentally.
7. How to avoid double-counting?
To the extent an Online Platform has more than one interface of service (e.g., a mobile application and a website), the Online Platform must avoid double-counting users where possible, as the obligation under the DSA is to only count each user once.
You should not use means such as tracking your users to avoid double-counting, as the DSA does not provide you with legal grounds to process personal data for that purpose.
You should attempt and use reasonable measures to avoid double-counting.
Feel free to contact us if you have any questions regarding the approaching requirements under the DSA and their potential effect on your operation.