If you are hosting and disseminating information provided by European Union users publicly, or provide online search engine services, you may have to publish your user numbers online.
Under the Digital Services Act (“DSA”), online platform providers and online search engines have to publish information on the average monthly active recipients of their service in the EU in a publicly available section of their website, app and mobile apps. This information must be published by 17 February 2023, and later on at least once every six months.
Under the DSA:
- an “online platform” is an on-demand service to users in the EU that hosts and disseminates information provided by users publicly. It includes providers of online marketplaces, content-sharing websites, and social networks,
- an “online search engine” allows users to perform searches of, in principle, all websites on the basis of a query on any subject in the form of, e.g., a keyword or voice request, and returns results in any format.
If you are a provider of an online platform or online search engine, you have to publish the average monthly active recipients of your service in the EU, calculated as an average over the period of the past six months. This means that, although the DSA entered into force on 16 November 2022, the calculation should include active recipients in the EU from mid-August 2022.
The final number should also:
- reflect all unique recipients actually engaging with the service at least once in a given period of time (e.g. readers),
- exclude double-counting of a recipient’s uses through different online interfaces or domain names,
- exclude incidental use through linking or indexing,
- if possible, exclude automated users (i.e. bots or scrapers).
The European Commission and national regulator (once designated) may also require you to provide such data upon request. In such case, you should design the counting system in a way that allows you to count the last six months on a rolling basis. Also, you need to consider compliance with the data protection rules.
Once the European Commission publishes a methodology on the calculation method, you should revise your counting method.
If you are a provider of online platforms that are treated as micro or small enterprises as defined in Recommendation 2003/361/EC, you do not have to publish your user numbers, but if requested, you will have to provide such data to the European Commission or national regulator.
Why it is important
The European Commission needs this information to assess whether you are a very large online platform (“VLOPs”) or a very large online search engine (“VLOS”). One of the conditions is having 45 million or more average monthly active recipients of the service in the EU. In that case, you will have more duties, and will have to implement the DSA obligations earlier.
For entities other than VLOPs and VLOS, it is unclear whether penalties for non-publication could be imposed before 17 February 2024, when all the DSA provisions start applying.