Medium-sized and large providers must publish information on the average monthly active recipients (AMARs) of the service(s) in the EU for each online platform or online search engine. All providers (regardless of size) must make sure they are able to calculate, on an ongoing basis, the number of AMARs, so they can provide such to a regulator upon request. The AMAR numbers will be used to assess the size of a platform or search engine, which will for instance determine the scope of a provider's obligations under the DSA. This blog provides insight into the obligations providers may have regarding the AMAR numbers.
Scope of DSA: online platforms and online search engines with a substantial connection to the EU
The DSA defines an online platform as “a service that, at the request of a recipient of the service, stores and disseminates information to the public." Examples are online marketplaces, app stores, collaborative economy platforms and social media platforms. An 'online search engine' is a service that allows users to perform searches of, in principle, all websites on the basis of a query (in the form of e.g. a keyword or voice request) and that returns results related thereto.
A ‘substantial connection to the EU’ exists where the service provider has an establishment in the EU or, if not, where the number of recipients of the service in one or more Member States is significant in relation to the population thereof, or on the basis of the targeting of activities towards one or more member states.
Whether or not an online service (partly) qualifies as an online platform may require some careful consideration. One should for instance give thought to:
- Minor public disseminations that are only ancillary to the main service (e.g. the comments section on a news site)
- Disseminations that can only be viewed by registered users who have been granted access after a human decision
- Parts of the service where a user can choose to keep the content private or shared only with a selected group (as opposed to public groups or open channels).
Arguably, in the latter two cases there would be no dissemination to the public (cf. Recitals 13 and 14 of the DSA).
Exempted from the obligation in Article 24(2) DSA are online platforms that qualify as micro or small enterprises (as per Article 19(1) DSA). In short, this means companies that have less than 50 employees and an annual turnover or balance sheet total of not more than ten million Euros. However, these businesses do need to provide the AMAR number if so requested by the European Commission or the national Digital Services Coordinator (cf. Article 24(3) DSA which does apply pursuant to Article 19(1) DSA).
All online platforms should look at what implications this has on their platform
Although the national Digital Services Coordinators are still to be appointed by each Member States (in The Netherlands this will likely be the Authority for Consumers & Markets), all online platforms should now be looking to update their systems, policies, processes etc. so that they are able to calculate, on an ongoing basis, the number of AMARs and provide those upon the regulator’s request.
Providers should publish the number of AMARs, calculated as an average over the period of the past six months
While most obligations under the DSA (which came into force on 16 November 2022) will start to apply only as from 17 February 2024, and not all obligations apply to every online platform or search engine, Article 24(2) DSA should be met by every provider in scope, and by 17 February 2023. The DSA requires providers to publish the number of AMARs calculated as an average over the period of the past six months, i.e. retrospectively as from mid August 2022 as of the date Article 24(2) DSA applies.
For calculation of AMARs, Article 24(2) DSA suggests to use “the methodology laid down in the delegated acts referred to in Article 33(3), where those delegated acts have been adopted”, but no such acts have been issued yet. Recital 77 of the DSA provides some (very high-level) explanations.
The number of AMARs should reflect all recipients actually engaging with the service at least once in a given period of time, by being exposed to information disseminated on the platform, such as viewing it or listening to it, or by providing information, such as traders on an online platforms allowing consumers to conclude distance contracts with traders. Such active engagement is not limited to interacting with information by clicking on, commenting, linking, sharing, purchasing or carrying out transactions, but mere incidental use (e.g. clicking on a website after it appeared in another search engines’ search results) does not seem covered.
In addition, the AMAR number should include all unique recipients. Identifying unique recipients may, however, present some problems. Although Recital 77 states that a recipient that uses different online interfaces to engage with the service should preferably be counted only once, it is not always possible to account for such situations. Also, providers may discount automated users such as bots or scrapers from AMAR numbers, but only if they can do this without further processing of personal data and tracking.
The lack of clarity can lead to inadvertent under or over-reporting of AMAR numbers which could have implications, for instance regarding the designation as very large online platform.
Carefully document the data sets and methodology of AMAR numbers
Whatever method is chosen to calculate the services’ AMAR number(s), providers should make sure that they at least carefully document the data sets and methodology, as well as their arguments for in/excluding certain recipients from the calculation. If ever asked by the regulator, they will in any case be able to explain and substantiate the AMAR number they published.
The AMAR numbers are to be published on provider's online interface and updated every 6 months
The DSA defines ‘online interface’ as “any software, including a website or a part thereof, and applications, including mobile applications.” The AMAR number(s) should be published by 17 February 2023 and at least once every six months thereafter.
Next steps: publish AMAR number(s) or wait for more guidance and risk a penalty in 2024?
Some providers may want to wait for the Commission’s methodology for calculation of AMARs to be issued and miss the February 2023 deadline. Penalties for non-publication seemingly cannot be imposed before 17 February 2024, but as Articles 24(2) and (3) do already apply (as of the DSA’s entry into force on 16 November 2022) it does seem possible that penalties may be imposed for infringements pre-dating that date.
The DSA prescribes that in serious cases, failure to comply may result in fines of up to six percent of annual global turnover, but lesser breaches, such as the provision of incorrect or misleading information to regulators, may result in fines not exceeding one percent of annual turnover. As these are maximum amounts and Member States are still to lay down and implement their own rules on penalties, it cannot be said yet what penalties will apply in any given jurisdiction.
Incidentally, for providers that do not have an establishment in the EU, it may still be interesting to keep an eye on Member State implementations first, before appointing their EU legal representative (which is mandatory under Article 13(1) DSA as of 17 February 2024).