On April 25, 2023, the European Commission adopted two decisions designating 17 companies as very large online platforms (VLOPs) and two companies as very large online search engines (VLOSEs) under the Regulation on a Single Market For Digital Services (Digital Services Act, DSA). VLOPs and VLOEs are subject to stringent additional due diligence obligations. The designated platforms and search engines must comply with the requirements within four months of the notification. (DSA art. 92.)
VLOPs and VLOEs are defined as online platforms and search engines that provide their services to 45 million or more average monthly active users in the European Union (EU) and have been designated by the Commission as VLOPs or VLOEs, respectively. (Art. 33, para. 1.) The designation is made on the basis of data reported by the provider of the online platform or search engine. (Art. 33, para. 4.) The DSA obligated providers to publish information on the average monthly active users in the EU by February 17, 2023, and at least once every six months thereafter in a publicly available section of their online interface. (Art. 24, para. 2.) The Commission has published guidance on the identification and counting of active users of the service.
Background on the Digital Services Act
The DSA, which entered into force on November 16, 2022, introduced new due diligence obligations for all businesses providing digital services in the EU; however, obligations are on a sliding scale depending on the type of service provided. All covered services are subject to common obligations, such as designating a single point of contact; appointing a legal representative in the EU if they are based outside of the EU; and clearly stating in their terms and conditions any restrictions that might be imposed on users, as well as being transparent about how and when illegal content or content that is contrary to their terms and conditions might be removed or disabled. (Arts. 11–15.) There are additional obligations for hosting services and online platforms, such as setting up a user-friendly electronic mechanism to alert providers of illegal content or internal complaint-handling systems to resolve user disputes. (Arts. 16–18, 20–28.)
Lastly, VLOSEs and VLOPs are subject to the most stringent obligations to mitigate their systemic risks. In particular, they must conduct risk assessments, take reasonable and effective measures to mitigate those risks, perform external and independent audits, appoint a compliance officer, and comply with additional online advertising transparency requirements, among other obligations. (Arts. 34–42.)
VLOSEs and VLOPs are supervised by the European Commission, whereas other covered services are supervised by national authorities, which must be designated by the EU member states by February 17, 2024. (Arts. 49, 56.) They may force compliance by issuing noncompliance decisions or by imposing fines and periodic penalty payments. (Arts. 52, 73–78.)
Jenny Gesley, Law Library of Congress
May 5, 2023
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