Brussels Writes the Answer Key
Ask Brussels what ChatGPT is, and you get two answers. Under the Artificial Intelligence Act (AI Act), the European Union regulates it as artificial intelligence. On Aug. 31, the European Commission supplied another answer when it designated ChatGPT as a Very Large Online Search Engine under the Digital Services Act (DSA). Each classification comes with its own rulebook. Together, they may shape what ChatGPT can say.
The DSA designation puts ChatGPT alongside Google Search and Bing in the category reserved for the largest search engines operating in the EU. Under Article 33, a platform or search engine enters that category when it reaches at least 45 million average monthly active users in the EU. OpenAI reported that ChatGPT Search averaged about 159.1 million monthly active users in the EU during the six months ending March 31, comfortably clearing the threshold. ChatGPT now has four months to comply with the additional obligations the DSA imposes on services of that size.
Those obligations require the largest services to examine their broader effects on society. Article 34 requires them to identify and assess “systemic risks” arising from their design or operation. These include risks to fundamental rights, civic discourse, public security, elections, public health, and children. Article 35 then requires services to adopt reasonable, proportionate, and effective measures to mitigate those risks.
The DSA offers several examples, including changes to a service’s design, recommendation systems, terms and conditions, and content-moderation practices. Lawmakers largely developed these obligations for platforms and conventional search engines. A search engine generally organizes and presents information found elsewhere. ChatGPT, by contrast, generates the answer a user sees.
That difference has practical consequences. Efforts to reduce systemic risks may extend beyond how a service ranks, recommends, or displays information. They may shape the substance of the answer itself.
OpenAI has accepted the designation and emphasized its commitment to complying with the DSA while balancing access to useful information with protection from harmful and illegal content. Few would quarrel with that goal. The difficulty lies in deciding what the balance requires.
ChatGPT’s designation therefore presents a broader problem. A regulatory framework designed to govern the distribution of online information may fit awkwardly when applied to a service that produces the answers users receive.