LUXEMBOURG — In separate cases, attorneys for Pornhub and Stripchat this week told the EU’s General Court that the European Commission relied on unreliable data when it classified the sites as “very large online platforms” (VLOPs) under the EU’s Digital Services Act, news organization MLex reports.
The Pornhub case, Aylo Freesites v. Commission, and the Stripchat case, Technius v. Commission, are among a number of suits that have been instigated by site operators over their classification as VLOPs. Under the DSA, sites and platforms that reach at least 45 million monthly active EU users are designated as VLOPs, rendering them subject to more stringent regulations and fees.
According to MLex, lawyer Christopher Thomas, representing Aylo, questioned in court on Friday why the commission would reject Pornhub’s own data collection methods as noncompliant with DSA rules — yet accept data from web analytics company Similarweb without knowing “what underlying data Similarweb used, or the maths applied.”
Pornhub reported a total number of EU users below the 45-million threshold, while Similarweb reported a number above the threshold.
“If a provider said they had purchased an estimate below 45 million, but didn’t know the data or methodology on which that was based and couldn't explain it to the commission, it would obviously be unacceptable,” Thomas argued.
Attorney Paul-John Loewenthal, representing the commission, acknowledged that user numbers are always estimates and that there is “no golden method to calculate user numbers; it's not possible.”
The case remains pending.
Like Pornhub, classification of Stripchat as a VLOP was also based on data from Similarweb, which initially reported that Stripchat had more than the requisite 45 million EU users — but later revised that estimate downward, placing the site below the VLOP threshold.
On Thursday, Stripchat operator Technius asked the court to reverse the European Commission’s 2023 determination that the site was a VLOP, due to that revision. Although the commission already revoked the site’s VLOP status earlier this year, attorney Tobias Bosch, representing Technius, told the court that the company was seeking a retroactive annulment of the previous ruling.
That decision could allow Stripchat to recover the supervisory fee it paid, impact the jurisdiction of future supervision of the site and affect an ongoing investigation into possible past breaches of the DSA by Stripchat, MLex reports.