The EU executive is exploring issuing secondary legislation that would lay down how to calculate user numbers, the General Court has heard.
Key takeaways
- Pornhub operator Aylo is challenging the methodology the European Commission used to determine that it had enough monthly users to warrant a VLOP designation.
- The Digital Services Act requires platforms to conduct user number calculations with no set methodology, but allows the European Commission to ignore those numbers and calculate its own.
- Aylo told the General Court that the commission has asked VLOPs for feedback on a proposed methodology for user number calculation.
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The Digital Services Act (DSA) allows the European Commission to designate operators as Very Large Online Platforms (VLOPs) or Very Large Online Services (VLOSEs) if they have more than 45 million monthly users across the bloc.
The legislation leaves user number calculations to platforms, but allows the commission to also look at other sources.
Cyprus-based Aylo Freesites, which operates the Pornhub adult platform in the EU, and Technius, which operates the Stripchat platform, are separately challenging their VLOP designations – although the commission has already reversed its Technius decision. Zalando lost its designation appeal in the EU’s General Court earlier this year.
The General Court heard Aylo’s challenge today, a day after it heard Technius’s appeal. It heard that the commission has circulated a working paper to VLOPs on a future delegated act that would lay out a methodology for counting users.
Hogan Lovells partner Christopher Thomas, counsel to Aylo, said several aspects of the floated methodology echoed techniques that the platform itself used when attempting to calculate its user base during the designation process.
Lexology PRO understands that the working paper was sent to VLOPs several months ago and that there has been little movement since.
A spokesperson for the commission today said the DSA allows it to issue a delegated act that would lay down a methodology for calculating user numbers.
“The commission is exploring whether to adopt such a delegated act and it is engaging with stakeholders and experts.”
Pornhub hearing
Pornhub’s lawyer Thomas today repeatedly criticised the methodology the commission adopted after it decided that the platform’s own calculation was unreliable.
The platform’s calculations had been based on a sample of logged-in users, and assumed that all visiting through corporate IP addresses – which include VPNs used to disguise visitors’ real locations – were located outside the EU, and therefore irrelevant to the 45 million threshold.
The commission instead chose to rely on two external sources: SimilarWeb data that suggested the threshold was cleared by more than 30 million users, and a study by French audience measurement company Médiamétrie that found there were 9.6 million users in France alone; the commission extrapolated the French number across the EU to find a number in excess of 45 million. French telecoms regulator Arcom referred the Médiamétrie study to the commission as it had used the document to track online pornography habits. The research was based on people volunteering to have their browsing habits tracked.
Thomas said the commission’s methodology was unreliable: he noted that not even the commission has seen how SimilarWeb reached its figures or its underlying data, and said it was not the case that Pornhub’s popularity was the same in all other EU member states.
He said those defects are “so extraordinary, so fundamental, that they absolutely preclude the commission’s rejection of [Pornhub’s] methodology” and decision to rely on the third-party providers instead.
The Hogan Lovells partner argued that once the commission rejected Pornhub’s allegedly unreliable methodology, it had a duty to “at the very least apply the same rigorous assessment” to alternative methodologies.
But European Commission lawyer Paul-John Loewenthal argued that Pornhub is “practically synonymous with online pornography” and is ranked as one of the world’s top 20-visited websites. It was therefore “somewhat surprising” that in February 2023, Pornhub reported that it fell beneath the DSA VLOP threshold by some 10 million users.
He defended the commission’s decision to base its designation on external data, saying SimilarWeb is highly respected and that the French data only supported that finding. The commission lawyer later said in response to questioning from judge Ioannis Dimitrakopoulos that the French data only “confirmed the conclusion” it had reached from the SimilarWeb information.
Loewenthal said any criticism that the commission should instead have asked to see raw data, devised a methodology and recalculated its numbers should be “rejected out of hand”.
Judge Gerhard Hesse, the rapporteur for the case, later asked why France was more representative than other countries. Loewenthal said it was unlikely to be an “extreme outlier” – but Thomas suggested that Aylo’s largest workforce is in Quebec, and that a major effort had been made to make its tags and descriptions much more accessible in French.
The hearing concluded today.
This article was updated on 14 November 2025 to feature more detail from the hearing.
Counsel to Aylo
Hogan Lovells
Partner Christopher Thomas in Brussels and Anthonia Ghalamkarizadeh in Hamburg are assisted by Alexandra Bray and Janis Beckedorf
Counsel to the European Commission
European Commission Legal Service
Paul-John Loewenthal and Olivier Gariazzo