Video Sharing Platforms or “VSPs” (i.e. businesses that allow the public to upload videos to their platform) which are based in the UK became subject to new rules last year. These rules, set out in the amended Communications Act 2003, are designed to prevent harmful material on VSPs, and place controls on advertising which appears on VSPs. Whether you’re a platform which offers video sharing, or a brand posting promotional content on VSPs, these rules will be relevant to you.
We have previously published an article which explains the duties placed on VSPs: see here.
This week, following consultation, Ofcom released its final guidance designed to help VSPs to understand and comply with their advertising obligations. It also confirmed the bodies responsible for administering regulatory compliance with the advertising obligations owed by VSPs.
The approach taken reflects the distinction made in the Communications Act between VSP-controlled and Non-VSP-controlled advertising as follows:
- 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 (see further below). Of course, the advertiser will remain responsible for compliance with existing advertising rules and regulations, but as an additional layer of protection, the VSP also now has these additional responsibilities. The Advertising Standards Authority (ASA) has been designated as co-regulator with responsibility for day-to-day regulation of VSP-controlled advertising, with Ofcom as a statutory backstop regulator.
- Non-VSP-controlled advertising: Advertising not marketed, sold or arranged by VSP providers, such as advertising included in content posted directly by users of the VSP (eg brands and influencers) will be regulated under normal advertising rules and the person or entity posting the content will need to ensure compliance with advertising standards. However, in addition, VSPs are also now legally required to take appropriate measures to ensure such adverts meet the user-protection requirements (see further below). Ofcom has now confirmed that it will be responsible for ensuring compliance by VSPs of these requirements.
VSP’s obligations on advertising
VSPs are responsible for ensuring that VSP-controlled adverts comply with a number of user-protection requirements, and are responsible for putting in place appropriate measures to ensure users also comply with these requirements. These requirements are set out below:
General advertising requirements
Adverts included on VSPs must be readily recognisable as such; and must not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously. Where a VSP provider has knowledge that a video contains advertising they must clearly inform users of this.
VSPs also have an obligation to ensure advertising on their platform does not:
- prejudice respect for human dignity;
- include or promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
- encourage behaviour prejudicial to health or safety;
- encourage behaviour grossly prejudicial to the protection of the environment;
- cause physical, mental or moral detriment to persons under the age of 18;
- directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;
- directly encourage such persons to persuade their parents or others to purchase or rent goods or services;
- exploit the trust of such persons in parents, teachers or others; or
- unreasonably show such persons in dangerous situations.
Prohibited and restricted products
Adverts for the following are prohibited on VSPs: cigarettes and other tobacco products; electronic cigarettes and electronic cigarette refill containers; and any prescription-only medicine. Further, adverts on VSPs for alcoholic drinks must not be aimed at minors and must not encourage immoderate consumption of alcohol.
VSP providers must take appropriate measures for the purpose of ensuring users comply with the above requirements when uploading Non-VSP-controlled advertising. The expectation of what these measures should include are set out in more detail in Ofcom’s latest guidance.
In particular, the guidance states that VSPs should make available easy-to-use functionality for users who upload content to declare the presence of advertising as far as they know or can be reasonably expected to know.
It’s worth noting that advertising (referred to in the legislation as “audiovisual commercial communications”) is defined very broadly, so it includes product placement, programme sponsorship, teleshopping and self-promotion. As such, editorial content that might only need a sponsorship or product placement disclosure if viewed on broadcast or on demand programme services (“ODPS”), will need a full advertising disclosure on VSPs. On the other hand, the strict rules on product placement, for example, which apply to content on broadcast channels and ODPS do not apply.
The guidance suggests that VSPs should include a mandatory step in the upload process forcing users to select whether or not the content includes advertising. Likewise, the functionality should enable the users to provide additional information, such as the identity of the relevant brand/advertiser. This would be particularly relevant for influencers, who will thereby be expected to identify who has paid them to upload the content, with the VSP then automatically displaying the appropriate disclosure, such as a “tag”, so that this is implemented in a consistent manner for all content.
VSPs are also expected to include in their terms and conditions with users: obligations to comply with the user-protection requirements above; an obligation to use the disclosure functionality they provide; and provisions to allow effective enforcement, for example via take-down rights. “Appropriate measures” include an expectation that VSPs will “robustly and consistently” enforce their T&Cs.
All of this means that brands and influencers who are using VSPs, will need to not only consider their regulatory obligations under standard advertising rules, but also the T&Cs of each VSP that they’re using.
As we have explained previously here, there are big changes coming to the online advertising ecosystem through the government’s Online Advertising Programme, and these VSP rules are likely to be replaced in the not too distant future. The guidance takes this into account, noting the interim nature of the current legal framework in light of the draft Online Safety Bill. However, the scope of the ASA's remit over advertising (including paid-for advertising) is planned to continue largely unchanged and we anticipate that a number of the principles set out in the VSP rules will stick. VSPs should however keep abreast of developments and ensure that their processes are designed to be agile so that they can evolve to comply with changing requirements.
“Ofcom is confident that it is appropriate to designate the ASA as a co-regulator for VSP-controlled advertising”