EU Court of Justice: Stripchat must not evade fundamental rights obligations

ARTICLE 19 has intervened in the case of Technius v Commission at the Court of Justice of the European Union (CJEU) . Technius is seeking to overturn the European Commission's decision that designated its service, Stripchat - an adult video platform and social networking site - as a Very Large Online Platform (VLOP) under the Digital Services Act (DSA). This classification subjects Stripchat to enhanced due diligence obligations, including with respect to fundamental rights.

ARTICLE 19 supports the Commission's request to the General Court to dismiss Technius' action. We argue that the Commission has a critical responsibility to thoroughly investigate any platform's attempt to avoid the designation as VLOPs and explain why Stripchat poses societal risks that warrant its classification under the DSA.

The DSA provides that VLOPs and Very Large Online Search Engines (VLOSEs) - services with over 45 million active monthly users in the European Union - must comply with additional obligations due to their size and potential impact on fundamental rights and society.

Accurate designation of VLOPs and VLOSEs - including Stripchat - is essential to ensure they cannot bypass these heightened requirements, which include key provisions of the DSA such as systemic risk assessments, mitigation measures, and obligations to provide data access to researchers.

The importance of our intervention

ARTICLE 19's ability to intervene in this case, represented by Dr. Martin Husovec, is a significant success in its own right.

The Court accepted our argument that we have a direct legal interest in the outcome of the case and should therefore be granted leave to intervene under Article 40 of the Statute of the CJEU.

Specifically, the Court agreed that if it were to annul Stripchat's VLOP designation, it would substantially reduce our rights as an organisation under Article 86 of the DSA representing and protecting the interests of internet users. As we argued, this would, among others, deprive us of the ability to represent users in relation to possible infringements of Stripchat's obligation to assess and mitigate systemic risks to freedom of expression and other fundamental rights (Article 34-35), as well as the rights we enjoy with respect to data access for researchers (Article 40).

The Court's decision to grant us leave to intervene sets an important precedent for other civil society organisations to secure standing in cases concerning the DSA. ARTICLE 19 has consistently argued that the perspective of civil society is crucial for enforcing the DSA in a manner that upholds fundamental rights and freedom of expression. This includes litigation proceedings where it is vital for the Court to hear civil society's viewpoint.

Key arguments of our submission

Technius challenged Stripchat's designation as a VLOP on several grounds.

In our submission, we first address the legal certainty regarding the active monthly user calculations. We then examine whether Stripchat, contrary to its claims, poses the kind of systemic risks the DSA intends to address, including risks to freedom of expression.

Technius claims that the Commission relied on inconsistent third-party data and wrongly assumed that Stripchat exceeded the 45 million user threshold. ARTICLE 19 points out that the disputed data was originally provided by Technius, and the Commission acted under the principles of good administration when it rejected Stripchat's discounting criterion. We also emphasise that the Commission has a strong duty to thoroughly investigate companies' claims to ensure proper designation, as this process is the only way for platforms meeting the threshold to be subject to the DSA's enhanced obligations.

Technius also argued that Stripchat does not pose the systemic risks that the DSA aims to address. ARTICLE 19 contends that this view misinterprets how the DSA operates by assuming that the Commission can make a preemptive, categorical determination about the systemic risks posed by platforms, potentially exempting VLOPs and VLOSEs from enhanced due diligence obligations. The responsibility for risk assessment, however, lies with platforms, subject to scrutiny by the Commission.

We further argue that adult platforms sites like Stripchat are capable of posing risks to fundamental rights, including children's rights, privacy, or gender-based violence. While Stripchat may not exist as a forum for social and political debate in the way other VLOPs do, the dissemination of pornographic material is inherently intertwined with freedom of expression. In addition, Stripchat's design, systems and processes pose similar risks to other content-sharing platforms. Therefore, there is no doubt that adult platform sites, like Stripchat, should be subject to the DSA's enhanced due diligence obligations for VLOPs.

Read the submission

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