EU Digital Services Act - Countdown to publication of monthly active users by online platforms and search engines

This document is available in English, German and French here and the accompanying press release can be found here.

To recall, the DSA which entered into force on 16 November 2022, is the EU's groundbreaking set of rules which places digital platforms under a unique new transparency and accountability framework. The Regulation aims to clarify the responsibilities and obligations of online intermediaries regarding content provision and moderation, as well as the offering of products for sale in online marketplaces. Based on the principle that “what is illegal offline is illegal online”, the DSA includes mandatory procedures to counter illegal products, services and content on digital services, as well as introducing transparency obligations regarding targeted advertising and recommender systems.

The DSA contains different obligations for different types of actors: the lightest obligations apply to mere intermediary services, after which the obligations become progressively heavier, with the obligations imposed on Very Large Online Platforms (VLOPs) and Very Large Search Engines (VLOSEs) being the most stringent.

If the published user numbers on average monthly active recipients show that a particular service provider has more than 10% of the EU's population (45 million users), the Commission may designate it as a very large online platform (VLOP) or very large online search engines (VLOSE). This means that the counting of MAUs is of particular importance for the largest players on the market.

The non-binding guidance document issued by the Commission on 1 February 2023 covers questions around the scope of the obligation concerning the identification and counting of MAUs.  Among other issues, the document addresses whether the publication has to take place on the online interface of the service and if the service providers also have to notify the published numbers to the Commission. Furthermore, the document offers some insights regarding when a recipient of an online platform service or search engine needs to be considered as an “active recipient” of a particular service, whether online marketplaces should count traders offering products or services on their platform and if third party advertisers should also be counted.

Additional questions addressed in the guidance include whether only registered recipients need to be counted as “active recipients”, potential issues around double counting and counting inauthentic users e.g., bots and if all visitors to a platform should be counted as “recipients of the service.”

While this guidance document from the Commission does provide some practical pointers for online platforms and search engines regarding the calculation and publication of MAUs, the responses therein will inevitably raise many other questions. It should also be remembered that this guidance does not constitute a Delegated Act, which the Commission is empowered to adopt under article 33(3) of the DSA. This Delegated Act may take at least another year to be adopted.

The current document is merely non-binding guidance, expressing the views of the Commission services (DG Connect) and does not constitute an authoritative interpretation of the DSA. Online platforms and search engines will therefore have to make their best efforts to comply with the Commission’s request on the basis of the limited information available at this moment.

For more information, please contact Francine Cunningham

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