On 7 December 2021 Ofcom published its final guidance on the regulation of advertising on video-sharing platforms (VSPs). This is the latest output from Ofcom relating to the UK's implementation of the 2018 Audiovisual Media Services Directive, imposing requirements on all UK-established VSPs to protect users from harmful, violent and illegal content and ensure that standards around advertising are met.
This is an important development for VSP providers because it means they have responsibility for advertising appearing on their platform as well as the advertiser. Previous regulation of adverts on VSPs focused more on the responsibility of the advertiser than the service.
VSPs are, broadly, online platforms whose principal purpose or essential functionality is to provide programmes and/or user generated content to the public where the service provider doesn't have editorial responsibility for the video content but does determine the organisation of the videos. VSPs which have notified Ofcom as being established in the UK include OnlyFans, Snapchat and Vimeo.
VSPs' obligations for adverts on their services depend on whether the advertising is "marketed, sold or arranged" by the VSP provider. Where the advertising is marketed, sold or arranged by the VSP provider (referred to as VSP-controlled), the VSP provider is directly responsible for ensuring compliance with the regulatory requirements. ASA is co-regulator (alongside Ofcom) for VSP-controlled advertising and will be responsible for day-to-day regulation. Where the advertising is not VSP-controlled, the VSP provider must take "appropriate measures" to comply. Ofcom will administer these providers' compliance and expects them to have appropriate systems and processes in place. VSPs will need to be able to explain these measures to Ofcom as part of their wider supervisory engagement with the regulator.
According to Ofcom guidance, advertising will be VSP-controlled where the VSP provider is involved in making the advertising available on its platform. This includes but is not limited to:
Ofcom has given the following examples of non-VSP-controlled advertising: influencer marketing where the provider doesn't engage with the influencer or an ad posted by a brand via the brand's user profile which appears without engagement between the brand and VSP.
These examples demonstrate that a key differentiator is whether the VSP provider has been engaged in the advertising.
The general safety obligations on VSPs apply equally to advertising on the platforms, so providers must take "appropriate measures" to protect:
For VSP-controlled advertising, providers must comply with the following requirements (which are the same as those the AVMS Directive places on media service providers).
VSP-controlled ads must:
VSP-controlled ads must not:
VSP providers are responsible for ensuring compliance with these requirements and for determining the appropriate steps they should take to ensure that advertising they control is compliant. Ofcom has provided a few examples of approaches to achieve compliance (as set out below), with the overall theme being keeping those who advertise on VSPs informed of the requirements and having prompt takedown measures in place where contravention occurs. Ofcom says VSP providers should:
In respect of advertising not controlled by providers, their obligation is limited to taking "appropriate measures" to comply with the requirements described above.
What are "appropriate measures"?
Ofcom advises that at a minimum, "appropriate measures" require that the terms and conditions of service (or community guidelines) cover the advertising requirements, including that:
These terms and conditions and the consequences for breaching them should be clearly communicated to users. Ofcom encourages providers to have a specific advertising-related section within their terms and conditions for these requirements, which should include a clear explanation of what material constitutes advertising and is therefore subject to the requirements. Providers are also encouraged to produce a simple, user-friendly summary of the advertising requirements, including examples of what would and would not be permitted under them.
The legislation sets out other measures which it may be appropriate for the provider to take such as requiring uploaders to bring restricted material to the attention of the provider and operating user-friendly reporting mechanisms. Determining which of the measures are appropriate to take and how to implement them to achieve the required protections is dependent upon whether the measure is practicable and proportionate, taking into account the following factors:
Under the VSP framework, advertising must be transparent to users of the service.
Regardless of whether or not the advertising is VSP-controlled, there is an overall obligation on the provider to clearly inform users where videos contain advertising where the provider has knowledge of the fact or the advertising has been declared by the uploader.
VSP providers must take such of the following measures as are appropriate to meet requirements relating to the transparency of advertising including:
Ofcom recommends that, once the advertising in the video has been declared using the functionality, providers should use an automated system to communicate its presence to users (as well as any other advertising they know about). Ofcom provides an example of such communication as the practice of applying #ad which is encouraged by the ASA in adverts on social media. The communication should be displayed prominently and take place as early as possible in a user's exposure to the advertising. Further, where the uploader has provided the additional information (as described as best practice above) this information should also be clearly communicated.
Ofcom's final statement has brought into sharp focus the increasing regulatory requirements surrounding advertising on VSPs. Providers should consider whether or not they are marketing, selling or arranging adverts sufficient to trigger the additional obligations relating to content regulation. In any event, all providers will need to review their terms and conditions of service to ensure that they contain appropriate measures to ensure the safety of users.
The ASA announced in November 2021 that advertising of cryptoassets, cryptocurrencies and NFTs was a 'red alert priority issue' for them.
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