In November 2020 Ofcom was given new powers under the amended Audio Visual Services Directive via the Communications Act 2003 to regulate video-sharing platforms (VSPs) established in the UK.
The Act requires VSP providers to take appropriate measures, as set out in Schedule 15A to the Act, to protect their users from harmful material. This applies to all videos on VSPs, as well as advertising. The Act also contains a number of specific requirements in relation to advertising such as general requirements relating to issues such as discrimination, transparency requirements and requirements relating to prohibited and age-restricted products.
VSPs are a type of online video service which permit users to upload and share videos with members of the public. Ofcom is responsible for regulating VSPs, including advertising on such services, but may designate another body to be a co-regulator, subject to certain criteria.
Ofcom is now consulting on guidance for VSPs on meeting their duties to regulate advertising. The proposals set out in the consultation have been drafted taking into account the interim nature of the statutory provisions due to the draft Online Safety Bill which will regulate much of this area, and the ASA’s ongoing self-regulatory role.
Ofcom is proposing a regulatory framework which reflects the distinction in the Communications Act between VSP and non-VSP controlled advertising:
- VSP-controlled advertising: VSPs are legally responsible for ensuring that any advertising they market, sell or arrange themselves meets certain requirements to protect users from potential harm. Ofcom proposes that day-to-day regulation of VSP-controlled advertising is administered by the ASA, with Ofcom as a statutory backstop regulator.
- Non-VSP-controlled advertising: For advertising not marketed, sold or arranged by VSP providers, VSPs are legally required to take appropriate measures to ensure such advertisements meet the user-protection requirements. Ofcom proposes that it will assess whether the measures taken by VSPs to protect users are appropriate.
The consultation
The consultation seeks stakeholders’ views on:
- Ofcom’s proposed guidance on how to decide if a VSP controls advertising;
- The proposed framework for regulating VSP-controlled advertising;
- Ofcom’s proposal to designate the ASA as a co-regulator in relation to VSP-controlled advertising;
- Ofcom’s proposed guidance for VSP providers on the measures to take in relation to non-VSP-controlled advertising; and
- Ofcom’s proposed approach to regulating non-VSP-controlled advertising.
The consultation ends on 28 July 2021.
