Who: The Office of Communications (Ofcom)
Where: United Kingdom
When: 21 October 2020
Law stated as at: 23 November 2020
What happened:
Ofcom has published regulations for UK video-sharing platforms (VSPs), which means that, as of 1 April 2020, VSPs within the scope of the UK’s Audiovisual Media Services Regulations 2020 will have to comply with new rules relating to protecting users from harmful content. VSPs will have to take appropriate measures to protect children from harmful content, and general users from material that may incite hatred and violence.
The regulations include rules on advertising, which means that VSPs must take measures appropriate to protect under-18s from adverts containing restricted material – that is to say, content that is likely to have an R18 rating certificate, has been or would likely be refused a certificate, and other material that might impair the physical, mental or moral development of under-18s. VSPs are also required to protect the general public from advertising that contains relevant harmful material – that is to say, any material likely to incite violence or hatred against a group of people or a member of such a group based on particular grounds, as well as any material which would be a criminal offence under terrorism, child sexual exploitation, or racism and xenophobia laws.
The application of further specific advertising requirements depend on the amount of control a VSP provider has over the advertising appearing on their platform. Where a provider markets, arranges or sells the advertising itself, it is directly responsible for compliance with rules relating to prohibited and restricted products, as well as the general advertising requirements. Prohibited adverts are those for: cigarettes and other tobacco products, electronic cigarettes and refill containers, and prescription-only medication.
The rules on advertising restricted products says that children must not be targeted by adverts for alcoholic drinks and any alcohol adverts must not encourage immoderate consumption. The general advertising requirements state that any other adverts must: be recognisable as adverts and must not involve techniques of subliminal or surreptitious messaging, must not prejudice respect for human dignity, include or promote discrimination, encourage behaviour prejudicial to health and safety or the environment, and must not cause detriment to under-18s or encourage them to persuade their parents or others to rent goods or services.
VSPs that do not market, arrange or sell advertising themselves must include terms and conditions requiring users who upload content that includes advertising to comply with these requirements. All adverts are subject to transparency rules requiring the provider to inform viewers that the relevant video contains an advert.
Why this matters:
While Ofcom plans to develop its approach to drawing the distinction between advertising that is and is not marketed, arranged or sold by VSP providers (aiming to provide further information in early 2021), all VSP providers within scope will need to take note of these rules to ensure that they are aware of the restrictions and requirements. Breaking the rules could result in a fine equal to the greater of 5% of qualifying revenue, or £250,000.
