The Digital Services Act (DSA) coins a new concept: the average monthly active recipient (AMAR) of a service. This definition determines which intermediary services the European Commission will designate as Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs). Services with an ‘average’ of 45 million ‘monthly active recipients’ will have additional obligations and are to pay a fee for their supervision. All intermediary services have to publish their AMARs ca. February 2023. But since active recipients are not necessarily (registered) users of a service, what are they? And how to calculate their monthly average for an online platform
This blog post tries to clear the ambiguity around the concept of average monthly active recipients of online platforms and search engines. It looks at how platforms should deal with recipients of embedded content and search engines with autocompleted search terms regarding their AMARs. It also explains the worry of increased tracking of internet users due to the calculation of accurate AMARs. The blog concludes with a call on the European Commission to quickly publish a methodology to calculate the average monthly active recipients for online platforms and search engines.
‘Recipient of the service’
The logical start to understand what counts as an ‘active’ recipient of an online platform’s service is the definition of a ‘recipient of the service’. That definition is laid down in Article 3(b) of the DSA:
“‘recipient of the service’ means any natural or legal person who uses an intermediary service, in particular for the purposes of seeking information or making it accessible;”
The matching recital 2 clarifies that the (commercial) intention of such a natural or legal person using an intermediary service does not impact their status as a recipient of the service. Business users, consumers and other users are all considered to be recipients of the service under the DSA (Recital 2). The casual online shopper on an e-commerce website and a company using advertising services of an online platform or search engine qualify as recipients of those services.
The active recipient is a new category of recipients, defined differently for online platforms and search engines. The multiple definitions follow from the different nature of the activities one can employ on both types of services. Articles 3(p) & 3(q) provide the definitions for an ‘active recipient’ of an online platform and of an online search engine. We discuss each one below, starting with an active recipient of an online platform.
Article 3(p): active recipient of an online platform
The definition of an active recipient of an online platform is:
“‘… a recipient of the service that has engaged with an online platform by either requesting the online platform to host information or being exposed to information hosted by the online platform and disseminated through its online interface;” – Article 3(p), DSA (emphasis added)
For an online platform, there are thus two possible types of active recipients, reflecting the multi-sided nature of many platform services: a passive, consuming kind and an actively requesting kind. An active recipient can be engaged with an online platform in two ways: by (a) requesting an online platform to host their information or (b) being exposed to information on the online platform. Both types somehow must be ‘engaged’ with an online platform. Recital 77 specifies that engagement includes but is not limited to: “[I]nteracting with information by clicking on, commenting, linking, sharing, purchasing or carrying out transactions on an online platform.”
The first type, the ‘requesting’ active recipient, entails, for example, a recipient posting a text, picture, audio or video on a social media platform or an online marketplace. It can also be as simple as writing a comment on a news website. The second type of active recipient includes any recipient simply consuming such content posted to an online platform by someone else, already achieved by “viewing it or listening to it” (Recital 77). To become an active recipient under the DSA’s definition, a recipient needs thus only to passively consume information. Interaction with the information is not a requirement to be counted as an active recipient of an online platform.
An active recipient of an online platform is thus a natural or legal person who is passively exposed to information on an online platform or actively requests the platform to host its information. Recital 77 further stresses that an active recipient is not the same as a (registered) user (with an account). Someone who, for example, navigates to – but immediately leaves – a profile page on Twitter, a product page on Amazon or a public Facebook page is usually not considered a ‘user’ of these online platforms. However, according to the DSA, they are an active recipient of these services. The number of active recipients of online services that fall under the definition of online platforms will thus be considerably higher than their number of registered users and closer to their number of unique visitors.
The definition of ‘online platforms’ and ‘services’
Without getting into the weeds, it is important to note that the definition of ‘an online platform’ under the DSA is also still open to interpretation. The provided definitions in Articles 3(I) & 3(k) and Recitals 13-15 stipulate that an online platform is a hosting service that stores and disseminates information to a potentially unlimited number of third parties, at the request of a recipient. Examples would be Instagram storing a user’s holiday snapshot and then disseminating it to its visitors via its feed, and also eBay disseminating an advertisement for a listed product of one of its sellers. However, cloud computing or web hosting services are probably not online platforms “when serving as infrastructure” for other websites or online platforms (Recital 13). The scope of an ‘online platform’ is thus more complicated than social media platforms or online marketplaces only. Providers of online platforms might even argue that they run two separate platforms: one for regular users and one for businesses.
Furthermore, it is unclear whether one online platform should count the active recipients of several services it offers together, or separately. Consider, for example, Facebook and TikTok, which run at least two separate services: their core service (a content feed) and their advertising services (with a separate interface, user accounts and less public accessibility). Recital 13 even suggests that the comment sections of these social networks constitute separate services.
TikTok’s and Facebook’s feeds undoubtedly will qualify as VLOPs. Their advertising services (especially at young, upcoming platforms) or comment services might not have ‘enough’ AMARs to be VLOPS on their own. The crux: providers of online platforms may interpret the DSA in such a way that the extra transparency and risk governance obligations for VLOPs do not apply to some of their (advertising or commenting) services. These services may still have an (outsized) effect on recipients of the ‘core’ services and thereby the DSA could miss some of its hoped-for effects.
The final delineation of providers between different online platforms and their services for the purposes of the DSA could end up in court. The European Commission can first provide guidance in upcoming delegated acts (Article 33(3)). Until that time, we can train our minds by arguing over which platforms and services Google Workspace provides.
Article 3(q): active recipient of an online search engine
The definition of an active recipient of an online search engine differs from that of an online platform:
“‘active recipient of an online search engine’ means a recipient of the service that has submitted a query to an online search engine and been exposed to information indexed and presented on its online interface;” – Article 3(q), DSA (emphasis added)
Anyone who submits a search term in their address bar or on the search engine’s website (‘submitted a query’) and is consecutively (re)directed search results (‘exposed to information index and presented on its online interface’) will be an active recipient of that search engine. One thus becomes an active recipient of a search engine once one pushes enter after typing a search term. Be aware: visitors to the home page of a search engine (e.g., Bing.com or Google.com) are not active recipients of these online search engines: they have not submitted a search query yet.
The relevant recital stresses that the active recipients of an online search engine are only those who submit search queries, “but not, for example, the owners of the websites indexed by an online search engine, as they do not actively engage with the service.” (Recital 77). In sum: an active recipient of an online search engine is thus any natural or legal person who submits a search query and is afterwards exposed to indexed information presented on the online interface of the search engine.
The DSA provides extra guidance for calculating the amount of active monthly average recipients. First and foremost, online platforms are only to count and publish their average monthly active recipients “in the Union” (Article 33(2)). Thus, only those recipients located in the European Union at the moment they engage with the platform or search engine are to count towards that number. It is unclear if and how to include recipients that obfuscate their location (through a VPN) and how a provider should decide where a user is located (e.g., based on IP address, language settings or else).
Furthermore, the provider has to calculate the ‘average’ of the monthly active recipients for six months. They must publish the number on their own ‘online interface’ (e.g., website, mobile app) for the first time three months after the DSA enters into force – approximately in February 2023 – and every six months after that.
From the amount of AMARs, two types of visits by recipients may be discounted, according to Recital 77. The first type of visits is those from automated recipients such as bots and scrapers. Platforms and search engines may ignore these, but only if they can do so “without further processing of personal data and tracking.”, which might raise an implementation problem discussed below.
The second type of visit to be discarded is non-unique visits. Platform or search engines may count the same recipient who visits them through different interfaces (e.g., website and mobile app; different URLs or domain names) as one active recipient. Someone interacting with, for example, Google search through its website and mobile application in a given month should be counted as one active recipient of this service. Those using, for example, google.fr, google.de and google.com in a given month should also be counted as one active recipient.
Guidance needed: embedded content, auto-completing search & tracking
Next to the remaining questions about the calculation of AMARs, two edge cases come up: embedded content of online platforms and the auto-complete function of online search engines. Afterwards, we discuss that delivering the most accurate AMAR number and the permission to discount double and automated recipients might induce enhanced tracking of internet users.
Embedded content: linking or just ‘any software’?
An essential part of the content dynamics on established online platforms is the possibility to ‘embed’ information from their platforms outside their websites or apps.
Examples are a YouTube or TikTok video, an Instagram picture or tweet added to an article on a news website, or previews of songs embedded via Spotify player in a music blog. Usually, these embeds include some basic functionalities of the platform (like, follow/subscribe, share). Should visitors of other websites presented with such embedded content be considered ‘active recipients’ by the online platforms hosting it? The DSA provides mixed signals.
On the one hand, to become an active recipient, one must be confronted by the online platform with information “disseminated through its online interface” (Article 3(p)). This ‘online interface’ of the platform consists of “any software, including a website or a part thereof, and applications, including mobile applications;” (Article 3(m)). One could argue that an embed is a part of the website of the online platform (it performs the same functions). It surely qualifies as “any software”. If an embed is indeed an online interface under the DSA, online platforms should count its recipients as their active recipients.
On the other hand, Recital 77 includes an exclusion that could allude to embedded content:
“[An] active recipient … should not include incidental use of the service by recipients of other providers of intermediary services that indirectly make available information hosted by the provider of online platforms through linking …”
It is unclear whether, under the DSA, embedding content on another intermediary service is an elaborate form of ‘linking’. If so, a considerable amount of interaction with and exposure to information on larger online platforms would not count towards the active recipients of these platforms. Under Article 33(3) the European Commission could provide guidance on whether recipients of embeds are active recipients of those online platforms. Ultimately, some of these questions might end up before the CJEU.
Autocompletion by search engines
A similar ambiguity emerges in the context of the common autocomplete function of search engines. While the user types a search term, the search engine’s autocomplete function ‘predicts’ which words are looked for and shows a list of suggestions. In the case of Google and Bing, for instance, the search engine’s website and app offer such suggestions, but they also appear in a browser’s address bar, which does double-duty as a search field. Does receiving autocomplete suggestions make its recipient an active recipient? And of which service?
The answer depends on whether we must follow the recipient’s intention or the technical definition of ‘submittal’. The DSA’s definition of an active recipient of an online search engine is that of a recipient who has submitted a query to an online search engine. From the recipient’s perspective, this happens when they press enter, click ‘search’ or select one of the suggestions. Therefore, merely receiving autocomplete suggestions would not make one an active recipient: one has not intended to ‘submit’ a request. Submittal of the query only happens after clicking on a suggestion.
On the other hand, from a technical perspective, every keystroke sends data of the recipient to the online search engine. The search engine bases its suggestions on every letter submitted from the first letter typed onward. It then presents indexed information through its online interface to the recipient. Therefore, a recipient receiving autocomplete suggestions would be an active recipient from the moment they start typing a search query.
Whether receiving autocomplete suggestions makes one an active recipient could be seen as a trivial matter, especially for sure-to-be VLOPs like Google, Bing or Yahoo!. However, for smaller search engines or search engines as part of other services (think: search on Wikipedia or Etsy), this could add a considerable amount of AMARs. In contrast: autocomplete and search could also be considered two separate services on the same platform, which would also separate their AMARs. Which of these interpretations is correct is not clear and will need to be clarified by the European Commission in delegated acts.
Discounting bots and scrapers: incentive to track?
As explained above, online platforms and search engines may discount automated recipients like bots and scrapers from their active recipients under the DSA. The veracity of user counts can impact the financial valuation of many online platforms. A case in point is the recent dispute between Elon Musk and Twitter about the bots on and ‘monetizable Daily Active Users’ of that platform. Simply put, the more human users a platform has, the more advertisements are viewed, and therefore the more valuable the platform will be. Bots, or automated users, are not human users and therefore useless to advertisers.
Recital 77 further specifies how providers of online platforms might discount automated users under the DSA. The DSA:
“does not require providers of online platforms or of online search engines to perform specific tracking of individuals online. Where such providers are able to discount automated users such as bots or scrapers without further processing of personal data and tracking, they may do so.” (emphasis added)
Discounting ‘automated’ recipients – such as bots and scrapers – involves tracking recipients. To do so, the service provider first must identify bots and scrapers somehow, for example, through the length of their visits (usually split seconds) or the specific origin of their traffic. Although undoubtedly well-meant by EU legislators, this allowance might spur smaller platforms to introduce (more elaborate) tracking of their recipients to be able to discount some automated users.
Additionally, many recipients of online platforms and search engines will use the services of online platforms and search engines on more than one device (e.g., their smartphones and their home computer). If a service does not want to count these active recipients twice (for their mobile and desktop visits), it will need to introduce some form of visitor tracking. If the service refuses to track recipients, the amount of AMARs that qualify as ‘very large’ online platforms or search engines can become de facto 22,4 million visitors (all visitors counted twice on their two different devices). This number drops further if providers cannot filter out visitors’ work devices, tablets, smartwatches, and other devices.
The incentive to deliver a more accurate number of AMARs, and not be designated as a VLOP much earlier than justified, is thus considerable. By leaving the option open to discount ‘double’ and automated recipients to achieve more accurate active recipient counts, the co-legislators give providers of services an additional reason to track their recipients’ behaviour.
European Commission, please clarify
To be in time to offer useful guidance on the questions above, the European Commission will have to move swiftly to clarify the methodology of calculating the average monthly active recipients. Per Article 33(3), the Commission may adopt delegated acts “laying down the methodology for calculating the number of average monthly active recipients of the service in the Union” and “ensuring that the methodology takes account of market and technological developments.” These delegated acts will be binding on all online platforms, but if platforms are willing to delay the process they could – in theory – bring an action for annulment against such a delegated act at The General Court of the European Union.
All online platforms and online search engines must start reporting their number of average monthly active recipients at the latest 3 months after the entry into force of the DSA (Article 24(2)). This amounts to the middle of February 2023. Before then, guidance is needed on how to delineate between different platforms and services of the same providers; if and how to count recipients of embedded content and autocompletion, and whether extra online tracking can be avoided while scrapers, bots and visitors with several devices are excluded from the average monthly active recipients. In sum: the definition of average monthly active recipients is still wide open and guidance is more than welcome.