New video sharing platform regulations - something to get twitchy about?

With user generated content being a key element of many online businesses, the new regulations aren't just relevant to the likes of YouTube, Facebook and Twitch... 

Whether you're a news publisher, a sports club, a fan site or any other online service, if you have a 'dissociable' (separable) section which has as its principle purpose (or an essential function) the ability for the public to upload videos, you now need to be alert to new “Video Sharing Platform” (VSP) regulations. 

In the past VSPs have been able to rely on the fact that they don’t have editorial control over the content uploaded to avoid responsibility. VSPs will now however have to implement various measures explained below if the VSP has general control over the manner in which videos are organised on the platform (including through the use of algorithms).

The rules at a glance

The Audio-Visual Media Services Regulations 2020 make changes to the Communications Act 2003 which take effect on 1 November 2020. In brief, the new provisions require VSPs to:

• notify Ofcom if they qualify as a “VSP Service” for the purpose of the new rules: Ofcom is giving VSPs until 6 April 2021 to assess whether the rules apply to them. If the general criteria mentioned above don’t apply, or if the service is not provided on a commercial basis or it isn’t under the jurisdiction of the UK, it won’t qualify as a “VSP Service”. (Establishing whether or not a service is under UK jurisdiction isn’t simple – it turns on where the service is ‘established’ and unhelpfully, Ofcom is yet to produce detailed guidance on this.)

• implement measures to protect users against harmful content, including:

• ‘restricted’ material (ie material inappropriate for under 18s); and

• ‘harmful’ material which is likely to incite violence or hatred, or would amount to a criminal offence under terrorism, child sex, and racism laws

• comply with rules on advertising, including:

• prohibitions on advertising of cigarettes, tobacco, e-cigarettes and prescription only medicine

• a prohibition on advertising of alcoholic drinks which is aimed at under 18s or encourages immoderate consumption of alcohol

• requirements to ensure transparency: advertising must be readily recognisable as such and much not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously

• comply with other overriding general rules to protect the public including that advertising must not: prejudice respect for human dignity; promote discrimination; encourage behaviour prejudicial to health, safety or the protection of the environment; or cause physical, mental or moral detriment to persons under the age of 18 etc

To the extent that a VSP markets, sells or arranges advertising themselves, they are directly responsible for compliance with these requirements. They must also implement measures to ensure users uploading videos respect, the requirements.

The regulations define advertising (referred to as “audiovisual commercial communications”) very broadly, so it includes product placement, sponsorship, teleshopping and self-promotion.

• provide an impartial out-of-court dispute resolution procedure for users objecting to the way these rules are implemented

Appropriate measures

Ofcom has issued guidance for VSPs setting out their expectations of what ‘appropriate measures’ must be put in place.  The measures must be ‘practicable and proportionate’ based on, for example, the size and nature of the VSP and the potential harm the materials could cause. Measures must also be balanced against public interest issues, such as freedom or expression and privacy. Not necessarily an easy task!

Measures set out in the legislation which VSP are required to take and implement include:

• Functionality: VSPs must provide functionality:

• to enable users to declare if a video contains advertising

• to enable viewers to report, flag and rate harmful material (and the VSP must provide explanations to users about any action taken in response to material that has been reported or flagged)

• for age-gating

• allowing parental controls over restricted materials

• Terms & Conditions: a VSP’s T&Cs must:

• prohibit uploading videos containing harmful material

• require users who upload restricted material (ie that would be likely to have an 18 certificate) to bring this to the attention of the VSP

• require users to comply with the rules on advertising mentioned above

• require users to declare when their videos include advertising by using the functionality VSPs are required to implement

• Complaints procedures: VSPs must establish and operate a transparent, easy to use and effective complaints procedure in respect of the flagging and reporting of harmful material, age-gating and the parental controls functionality mentioned above

VSPs will be expected to undertake regular risk assessments to ensure the measures are working and remain appropriate.

The future

Ofcom will be seeking to engage with VSPs as the new regime begins to operate. It says that it will assist VSPs in understanding what is needed to comply, and is also going to consult on further guidance on the risk of harms and appropriate measures in early 2021. Before it publishes that guidance, and while the legislation beds-in, it expects to prioritise only the most serious potential breaches for formal enforcement action.

And just once VSPs get to grips with the system, it’s likely to be all change… Implementing the AVMS Regulations was an obligation on the UK as a member of the EU which continued into the Brexit transition period. However, the UK Government’s intention is that the new VSP rules will only be in place until the proposed Online Harms regime comes into force. More work for the lawyers I hear you groan! At least Ofcom says that it will ensure that there is support for services when transitioning from one regime to the next.

And finally… Are you making your own content available?

If you're not a VSP yourself, but you are uploading lots of your own content, you also need to be on the ball.

As a user of a VSP, from 1 November 2020 you’re obviously likely to be subject to stricter T&Cs and will need to get to grips with new functionality and processes implemented by VSPs. For example you may need to declare much of your content as being advertising if it is self-promotional or contains product placement.

On the other hand if you upload your own content to your own website/platform or a dissociable part of it (or to your own Twitch or YouTube channel etc), you may be regulated as an on-demand programme service (ODPS). The AVMS Regulations, in addition to introducing the new VSP rules, made changes to the existing regime for ODPS which are likely to bring more platforms into scope.

For example the requirements that ‘programmes’ must be “comparable” to TV programming are removed as of 1 November 2020, and it is now clear that the length of programmes is irrelevant.  As such if you’re regularly uploading content (of whatever length) and placing it into a schedule or catalogue of programmes established and determined by you (whether on your site or your YouTube channel etc), you’ll likely be an ODPS and need to comply with the relevant provisions of the Communications Act 2003 and the Ofcom Code. These rules are similar, but in some respects more rigorous than, the new VSP rules.

Yes, it’s complicated but we’re here to help if and when you need us!