Obligations on video-sharing platforms to regulate advertising

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.

Adverts "marketed, sold or arranged" by the VSP provider

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.

Assessing whether adverts are "marketed, sold or arranged"

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:

• enabling advertisers to buy advertising on the platform, either directly or via a third-party, and/or
• providing tools that enable advertisers to target or optimise the reach of such advert.

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.

Obligations on all VSPs

The general safety obligations on VSPs apply equally to advertising on the platforms, so providers must take "appropriate measures" to protect:

• minors from ads which may impair their physical, mental or moral development;
• the general public from ads containing incitement to violence or hatred directed against a group of persons or a member of a group based on discriminatory grounds; and
• the general public from ads containing criminal terrorist, CSEA or racist/xenophobic content.

Obligations on VSP-controlled advertising

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:

• be readily recognisable as such
• not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

VSP-controlled ads must 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 minors to purchase or rent goods or services in a manner which exploits their inexperience or credulity
• directly encourage minors to persuade their parents or others to purchase goods or services
• exploit the trust minors place in parents, teachers or others
• unreasonably show minors in dangerous situations
• advertise cigarettes, other tobacco products (including e-cigarettes and refill containers) or prescription-only medicine
• if they are for alcoholic drinks, be aimed at minors and must not encourage immoderate consumption of alcohol.

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:

• Make advertisers or other third parties who use VSP services aware of the requirements, for example, within the terms of a contract or during the development of the advertisement.
• Ensure that any advertising tools provided by the VSP alert the user to the relevant requirements.
• Take prompt action to remove or edit any advertising which may contravene the requirements and take steps to prevent the reoccurrence of any issues identified.

Obligations on non-VSP-controlled advertising

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:

• a person must not upload to the VSP a video containing advertising for a prohibited product;
• a person must not upload to the VSP a video containing advertising for an alcoholic drink (a restricted product) unless it meets the general advertising requirements and the requirements in relation to restricted products; and
• a person must not upload to the VSP a video containing advertising for anything else unless it meets the general advertising requirements.

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:

• the size and nature of the VSP
• the nature of the material in question
• the potential harm of the material to users (this is a primary consideration)
• whether any protected characteristics are concerned
• the rights and legitimate interests at stake (including the general public interest)
• other measures already taken and/or due to be taken.

Transparency of advertising

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:

• providing functionality for users who upload content to declare the presence of advertising. This functionality should be easy to use, accessible for all users and suitable for all devices. Ofcom encourages providers to make it a mandatory step in the video upload process and lists as "best practice" functionality which enables the uploader to provide additional information about the advertising eg by tagging relevant third parties in the video
• a requirement in the terms and conditions of the service that users who upload content must make use of that functionality to declare that the video contains advertising. The terms and conditions must be clear and robustly and consistently enforced.

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.

Next steps

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.