Size matters: pornographic websites Pornhub, Xvideos and Stripchat designated as Very Large Online Platforms

On 20 December 2023, the European Commission designated Pornhub, Xvideos and Stripchat, three widely-used porn sites, as ‘very large online platforms’ under the new Digital Services Act. Peter Bulcke and Jan Clinck explain at what point exactly a platform is considered to be ‘very large’ and to what extent online platforms that do not qualify as ‘very large’ should worry at all about the Digital Services Act.

Designation as “VLOP”: 45 million average monthly active users

In the penultimate week of 2023, the European Commission gave a special ‘present’ for the operators of 3 widely-used porn platforms. Pornhub, Xvideos and Stripchat will each be entitled to call themselves a VLOP or “Very Large Online Platform” under the Digital Service Act (“DSA”) as from now. In doing so, this threesome joins a party of 19 VLOPs, including the likes of Instagram, Booking.com and YouTube.

To become a “VLOP” requires two conditions: first, being an online platform that has at least 45 million average monthly active users in the Union; second, having been designated as such by the European Commission.

The trigger is thus the notion of “average monthly active users”. Although it might seem a quite straightforward and quantitative criterion, two VLOPs, Amazon and Zalando, have already undertaken legal proceedings before the European Court of Justice to attack the calculation that has been made of their “average monthly users”. Pornhub also seems to be questioning the European Commission’s calculation as it recently reported only a monthly user count of 38 million, well below the 45 million threshold. It remains to be seen if Pornhub (or either of the other two new VLOPs) will appeal the designation.

The DSA – much more than VLOPs

The new qualification places the three adult entertainment services in a much stricter regulatory and enforcement regime because additional obligations will have to be complied with. These rules are stricter because, contrary to what many press articles have implied, these services were already subject to the DSA’s scope. After all, the DSA is more than just the VLOPs, much more in fact.

All online intermediary services that transmit, host or disseminate user generated content come within the DSA’s scope. Apart from micro and small enterprises, which come within an exception intended to protect the digital startup scene, the DSA rules apply regardless of the size of the service. What is key, is the qualification of the intermediary service. Depending on whether it qualifies as a ‘hosting service’, ‘online platform’, ‘B2C online marketplace’ or ‘very large online platforms/’very large online search engines’, there are more obligations to comply with.

Far reaching obligations

DSA obligations are broad and diverse. Among other things, all intermediary services must designate a DSA contact point and publish annual transparency reports online. Hosting providers must also provide notification and action mechanisms for content moderation. Online platforms have additional obligations to provide an internal complaint-handling system, respond promptly when “trusted flaggers” report unlawful content, stop using ‘dark patterns’, and offer more transparency to their users about why they are shown certain ads or content. If the online platform allows consumers to conclude distance contracts with traders, then the platform must conduct a “know your business customer” procedure to ascertain only trustworthy traders are allowed to sell their products on the platform.

Finally, a VLOP should also: assess its own “systemic risks” regarding illegal content on (at least) a yearly basis, be subject to an annual independent audit to assess DSA compliance, should have an option in its recommender system that is not based on profiling, and should provide more transparency obligations regarding its ads.

Mark the date: 17 February 2024

There’s now not much time left for the digital service providers; while the newly designated VLOPS have 4 months to fulfill the duties that come with this qualification, the general entry into force for all covered digital services is 17 February  2024. From then, the DSA will be enforced by the European Commission and the national Digital Services Coordinators. The BIPT should take up this role in Belgium, although this has not yet officially been confirmed.

So, if you’re ‘fashionably late’ to the compliance party, January is your wake-up call. It’s time to start the DSA compliance dance! Need help navigating the DSA maze? We’re here to guide you through it and make sure you kick-off the new year on the right regulatory foot.

For more information, please contact Jan Clinck and Peter Bulcke.

Written by

• Jan Clinck

  Counsel