“In Europe the bird will fly by our EU rules” – But is Twitter an ostrich or a humming bird?

After Elon Musk’s takeover of Twitter and one of his famous first tweets as the owner of the platform stating "the bird is freed"[1], one of the first people to respond was Thierry Breton, the EU Commissioner for the Internal Market, with a clarification that in the EU the platform will have to abide by the EU rules.[2]

First, it is crucial to clarify what was actually meant by Musk and what is meant by Breton’s response since the main means of communication on Twitter usually contains not more than 280 characters.

Musk’s tweet must be seen in the relative context of him buying Twitter and the fact of him being an advocate of freedom of expression. Being an advocate of fundamental rights is basically a welcome attitude, however not necessarily to the extent of harming other rights and freedoms by only focusing on one and disregarding the necessary balance between them. 

One recent piece of legislation, granting a few rights that may be applicable, is the Digital Services Act (hereinafter “DSA”)[3]. The DSA is a new EU law, which especially provides rules concerning liability and security for internet intermediaries such as online platforms. Elon Musk says that the DSA is “exactly aligned”[4] with his thinking and shows the intention in implementing the rules of the DSA.[5] However, he is saying this while also dissolving Twitter’s Trust and Safety Council, the advisory group of around 100 independent civil, human rights and other organizations that the company formed in 2016 in order to address hate speech, child exploitation, suicide, self-harm and other problems on the platform[6] and firing the entire human rights team, at the same time[7].

To increase accountability and oversight, all online intermediaries will be required to abide by a broad set of new transparency requirements, such as a new mechanism for flagging illegal content. Depending on whether an online platform is considered a so-called Very Large Online Platform (hereinafter “VLOP”), a special regime is introduced for them.

The DSA partially entered into force on November 16th 2022. However, the date for the full application of the EU regulation is February 17th 2024.

Whether “Twitter 2.0”[8], as Musk calls the project internally, will abide by the rules is yet to be seen. Depending on whether Twitter will be considered a VLOP, it will have to abide by a wider and stricter range of rules.

So Is Twitter a VLOP?

An online platform is considered a VLOP if the number of average monthly active recipients (hereinafter “AMARs”) of the service in the Union is equal to or higher than 45 million[9]. However that is not the only requirement. VLOPs must, in addition to that, also be designated as such by the Commission.[10]

In order for the Commission to do so, it must have either consulted the Member State of establishment of the online platform or consider the information provided by the Digital Services Coordinator of establishment pursuant to Article 24(4) DSA.

The Commission shall take its decision based on the data reported by the provider of the online platform. 

This data must be provided by online platforms until February 17th 2023 and after that every 6 months through publication in a publicly available section of their online interface.[11]

Alternatively, the Digital Services Coordinator of establishment and the Commission may also request such information at any time, while online platforms must provide it in an up-to-date (of the request) manner without undue delay.

Furthermore the Commission can of course designate a VLOP on the basis of any other information available to the Commission as stated in Article 33(4) DSA.

Whether there is a certain order for the Commission to abide by is not entirely clear, however the further text in Article 33(4) subsection 1 could indicate that an order is given, when it says that “the failure by the provider of the online platform […] to comply with Article 24(2) or to comply with the request by the Digital Services Coordinator of establishment or by the Commission pursuant to Article 24(3) shall not prevent the Commission from designating that provider as a provider of a very large online platform […]”. This could mean that there is an order and that the Commission would first have to try to get the relevant information by means of Articles 24(2) and 24(3) DSA and, only if that fails, rely on other information available to them.

To sum it up briefly, the Commission can get the information it needs from the publication on the platform itself[12], by requesting it[13] or by relying on other information available to it. Depending on the origin of the information, or rather in the cases of request and assumption based on other information, to be precise, platforms have 10 working days to submit their views on the Commission’s preliminary findings and on its intention to designate the online platform as a VLOP. The Commission shall take due account of the views submitted by the provider concerned.

In the case of Twitter International Unlimited Company, the Member State establishment is located in Ireland.[14]

As of now, it is not yet clear, whether Twitter will be designated a VLOP or not. More information should be available by February 17th 2023 at latest, since this is the deadline for online platform providers to provide this information according to Article 24(2) DSA.[15] Furthermore, it is also interesting how providers of online platforms will calculate their AMARs. Since the concept of an AMAR is new, there are still a few uncertainties.

First, in order to understand who is considered an ‘active’ recipient of an online platform’s service, it is essential to see the definition of a ‘recipient of the service’. According to Article 3(b) 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”.

For online platforms, there are generally two possible types of active recipients, as the nature of platform services can differ from platform to platform. Active recipients can be both, either requesting an online platform to host their information or being exposed to information on the online platform. So, there is either a passive, consuming kind and/or an actively requesting kind. In both cases, some kind of engagement with the online platform is necessary. The DSA specifies in Recital 77 that engagement includes but is not limited to “interacting with information by clicking on, commenting, linking, sharing, purchasing or carrying out transactions on an online platform.”[16] 

To become an active recipient under the DSA’s definition, a recipient needs only to consume information in a passive manner. Interaction with the information is not a requirement to be counted as an active recipient of an online platform.[17]

Hence, an active recipient of an online platform is a person who is at least passively exposed to information on an online platform or of course someone who actively requests the platform to host its information. Recital 77 of the DSA also makes it clear that an active recipient is not the same as a user, who might even be registered and has an account. 

For Twitter, this could mean that someone who is not a registered Twitter user and, for example, only visits Twitter to read a certain tweet, and leaves immediately after that usually won’t be considered a user of the platform, not even by Twitter’s own definition of an mDAU[18].

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 therefore be considerably higher than the number of registered users and closer to the number of unique visitors. 

According to a recently published open letter to Elon Musk from members of the European Parliament, Twitter counts 98 million European Users[19], although the letter does not specify the methodology of coming up with this number, it implies that it is way above the DSA’s threshold of 45 million AMARs for being considered a VLOP.

Assuming Twitter will be designated a VLOP, this would mean an earlier and more intense application of the DSAs rules, including more transparency and accountability of the platform.

[1] Musk, Elon, the bird is freed (2022), https://twitter.com/elonmusk/status/1585841080431321088 (last accessed 06.01.2022).

[2] Breton, Thierry, @elonmusk In Europe, the bird will fly by our ???????? rules. #DSA (2022), https://twitter.com/thierrybreton/status/1585902196864045056 (last accessed 06.01.2022).

[3] Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act).

[4] Breton, Thierry, Today @elonmusk and I wanted to share a quick message with you on platform regulation (2022), https://twitter.com/thierrybreton/status/1523773895974612992 (last accessed 04.01.2022).

[5] Breton, Thierry, I welcome @elonmusk's intent to get Twitter 2.0 ready for the #DSA (2022), https://twitter.com/thierrybreton/status/1598015892457426944 (last accessed 04.01.2022).

[6] NPR, Musk's Twitter has dissolved its Trust and Safety Council (2022), https://www.npr.org/2022/12/12/1142399312/twitter-trust-and-safety-council-elon-musk (last accessed 04.01.2022).

[7] Massie, Graeme, Elon Musk fires Twitter’s human rights team as part of sweeping layoffs at platform (2022), https://www.independent.co.uk/tech/elon-musk-twitter-employees-layoffs-b2218097.html (last accessed 04.01.2022).

[8] Nickel, Oliver, 2.000 von 7.500 Angestellten bleiben bei Twitter 2.0 (2022), https://www.golem.de/news/elon-musk-unter-2-000-von-7-500-angestellten-bleiben-bei-twitter-2-0-2211-169891.html (last accessed 04.01.2022).

[9] Article 33 (1) DSA. 

[10] Article 33 (4) DSA. 

[11] Article 24 (2) DSA.

[12] Article 24 (2) DSA. 

[13] Article 24 (3) DSA. 

[14] Twitter Help Center, Our global operations and data transfer (2022), https://help.twitter.com/en/rules-and-policies/global-operations-and-data-transfer (last accessed 04.01.2022).

[15] Lomas, Natasha, Europe wastes no time warning Musk over ‘arbitrary suspension of journalists’ (2022), https://techcrunch.com/2022/12/16/eu-warns-elon-musk-over-journalist-bans/ (last accessed 04.01.2022).

[16] Thieje, Pim ten/van Hoboken, Jordis, Average monthly active recipients in the DSA: definition, grey areas, and how to calculate? (2022),  https://dsa-observatory.eu/2022/10/10/average-monthly-active-recipients-digital-services-act-dsa-definitions-grey-areas-how-to-calculate/ (last accessed 04.01.2022).

[17] ibid.

[18] “Twitter defines monetizable daily active usage or users (mDAU) as people, organizations, or other accounts who logged in or were otherwise authenticated and accessed Twitter on any given day through twitter.com, Twitter applications that are able to show ads, or paid Twitter products, including subscriptions.”(https://s22.q4cdn.com/826641620/files/doc_financials/2022/q2/Final_Q2'22_Earnings_Release.pdf) (last accessed 04.01.2022).

[19] Tang, Paul, There are ways to improve a free public debate (and avoiding a clash with the European rulebook). Blocking journalists is of course not one of them. See the letter from @SchaldemoseMEP, @repasi and myself. (2022), https://twitter.com/paultang/status/1603789219935158273 (last accessed 04.01.2022).