The European Commission has adopted initial designation decisions under the Digital Services Act (DSA), identifying 19 major online platforms and search engines as Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs). These designations trigger a new set of compliance obligations, raising concerns among legal professionals in the adult industry regarding potential impacts on content moderation and accessibility within the EU.

DSA Designations and Obligations

The European Commission yesterday adopted the initial designation decisions under the Digital Services Act (DSA), identifying 19 major platforms and search engines for compliance with the legislation. These designations formally identified 17 VLOPs and two VLOSEs, which the European Commission states reach at least 45 million monthly active users. The VLOPs include Alibaba AliExpress, Amazon Store, Apple AppStore, Booking.com, Facebook, Google Play, Google Maps, Google Shopping, Instagram, LinkedIn, Pinterest, Snapchat, TikTok, Twitter, Wikipedia, YouTube, and German retailer Zalando. The two VLOSEs are Bing and Google Search.

Following their classification, these companies are required to comply with the full set of new responsibilities under the DSA within four months. The new obligations aim to empower and protect users online, including minors, by requiring designated services to assess and mitigate systemic risks and to provide robust content moderation tools. The DSA, which entered into force in 2022, establishes a comprehensive legal framework for digital services accountability, content moderation, and platform transparency across the European Union. It significantly updates the Electronic Commerce Directive 2000 in EU law by introducing graduated obligations based on service size and risk levels.

The DSA applies to all digital intermediary services, including hosting services, online platforms such as social networks, online marketplaces, pornographic platforms, app stores, and search engines. It establishes a tiered regulatory approach: basic obligations for all services, enhanced duties for online platforms, and the most stringent requirements for VLOPs and VLOSEs with over 45 million monthly active users in the EU. The expressed purpose of the DSA is to create a digital space that respects citizens and consumers’ fundamental rights, and to enable smaller platforms, small and medium enterprises (SMEs), and start-ups to scale up in Europe, fostering innovation, growth, and competitiveness.

Under the DSA, platforms must redesign their systems to ensure a high level of privacy, safety, and security of minors. Targeted advertising based on profiling towards children is no longer permitted. Special risk assessments, including for negative impacts on mental health, must be provided to the Commission four months after designation and made public at the latest a year later. Platforms are also required to update their services, including interfaces, recommender systems, and terms, to mitigate these risks. As part of their risk assessment, targeted platforms must identify, assess, and mitigate a broad selection of systemic risks, ranging from how illegal content and disinformation can be amplified on their services, to the effect on civil liberties and media freedom. Specific risks around gender-based violence online and the protection of minors online and their mental health must also be analyzed and reduced. The risk mitigation strategies of designated systems and online search engines will be subject to an independent audit and oversight by the Commission.

Industry Concerns and Potential Impacts

Industry attorney Corey Silverstein of Silverstein Legal stated that the impact of the new classifications and consequent obligations "could be significant because many of the platforms that have been designated as VLOPs and VLOSEs are frequently used by the adult entertainment industry." Silverstein informed XBIZ that if these systems comply with the DSA, there may be significant changes involving what these systems permit on their services within the EU. He warned that this "may end up leading to significant content moderation and outright stopping of adult content in the EU, including the stopping of sites that display adult entertainment from being listed in search results." Silverstein noted that there is no definitive answer as to how these systems will react, but the industry will need to carefully monitor this development.

Free speech law specialist Lawrence Walters, from the Walters Law Group, told XBIZ that the impact of the new designations on adult content creators "will depend on how the platforms and internet search engines implement the DSA requirements associated with safety and protection of minors, reporting of allegedly illegal content, recommendation systems, and marketing procedures." Walters added that the new European requirements are likely to cause "increased friction between adult material creator accounts and these big platforms and online search engines." He suggested monitoring the results of the first required annual Risk Analysis by the designated companies, which will "provide important information on how they are responding to these compliance obligations and how that compliance affects free expression." Walters also noted that as larger adult platforms continue to grow, some may pass the European Commission's 45-million-active-users standard, and thus "face the possibility for future classification under the DSA which might have more direct impact on their users and creators."

Key Facts

  • The European Commission designated 19 platforms and search engines as Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs) under the Digital Services Act (DSA).
  • These designated services must comply with new DSA obligations within four months.
  • VLOPs and VLOSEs are defined as having at least 45 million monthly active users in the EU.
  • New obligations include risk assessments for illegal content, gender-based violence, and the protection of minors, as well as redesigning systems for minor safety and prohibiting targeted advertising based on profiling towards children.
  • Legal experts anticipate potential significant changes to content moderation and accessibility of adult content on these platforms within the EU.
  • The DSA aims to create a safe and trustworthy online environment, empowering citizens and protecting fundamental rights.