On December 7, 2021, Ofcom published its final guidance on the regulation of advertising on Video Sharing Platforms (VSPs). This is the latest publication from Ofcom regarding the UK’s implementation of the Audiovisual Media Services Directive 2018, imposing requirements on all VSPs established in the UK to protect users against harmful, violent and illegal content and ensure compliance with advertising standards.
This is an important development for VSPs as it means they have responsibility for the advertising appearing on their platform as well as the advertiser. Previous regulation of VSP ads focused more on advertiser liability than service.
VSPs are, broadly speaking, online platforms whose primary purpose or essential functionality is to provide programs and/or user-generated content to the public where the service provider does not have the responsibility editorial of the video content but determines the organization of the videos. VSPs that have notified Ofcom as being based in the UK include OnlyFans, Snapchat and Vimeo.
Ads “marketed, sold, or arranged” by the VSP provider
The obligations of VSPs for advertisements on their services depend on whether the advertisement is “marketed, sold or arranged” by the VSP provider. Where advertising is marketed, sold or arranged by the VSP provider (referred to as controlled VSP), the VSP provider is directly responsible for compliance with regulatory requirements. ASA is co-regulator (alongside Ofcom) for VSP-controlled advertising and will be responsible for day-to-day regulation. Where advertising is not controlled by VSP, the VSP provider must take “appropriate measures” to comply. Ofcom will administer the compliance of these providers and expects them to put in place appropriate systems and processes. VSPs will need to be able to explain these measures to Ofcom as part of their broader oversight engagement with the regulator.
Assess whether advertisements are “marketed, sold or arranged”
According to Ofcom guidelines, advertising will be controlled by VSP where the VSP provider is involved in making the advertising available on its platform. This includes, but is not limited to:
- allowing advertisers to buy advertising on the platform, either directly or through a third party, and/or
- providing tools to allow advertisers to target or optimize the reach of these advertisements.
Ofcom gave the following examples of advertising not controlled by VSP: influencer marketing where the supplier does not engage with the influencer or an advertisement published 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 advertising.
Obligations on all VSPs
The general security obligations imposed on VSPs also apply to advertising on the platforms, so providers must take “appropriate measures” to protect:
- minors of announcements likely to harm their physical, mental or moral development;
- the general public of advertisements inciting violence or hatred against a group of people or a member of a group on the basis of discriminatory grounds; and
- the general public of advertisements containing criminal terrorist, CSEA or racist/xenophobic content.
VSP Controlled Advertising Obligations
For VSP Controlled Advertising, providers must comply with the following requirements (which are the same as the AVMS Directive imposes on media service providers).
VSP-controlled ads must:
- be easily recognizable as such
- not to use techniques that exploit the possibility of transmitting a message subliminally or surreptitiously.
VSP-controlled ads must not:
- undermine respect for human dignity
- include or promote discrimination based on gender, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
- encourage behavior that is detrimental to health or safety
- encourage behavior that is manifestly harmful to the protection of the environment
- cause physical, mental or moral harm to persons under the age of 18
- directly induce minors to buy or rent goods or services in a way that exploits their inexperience or credulity
- directly encourage minors to persuade their parents or others to purchase goods or services
- exploit the trust that minors have in their parents, teachers or other
- unreasonably showing minors in dangerous situations
- advertise cigarettes, other tobacco products (including e-cigarettes and refill containers) or prescription-only drugs
- in the case of alcoholic beverages, address minors and do not encourage excessive consumption of alcohol.
VSPs are responsible for ensuring compliance with these requirements and determining the appropriate steps they must take to ensure that the advertising they control is compliant. Ofcom has provided some examples of approaches to ensure compliance (as shown below), the general theme being to keep those who advertise on VSPs informed of the requirements and to put in place rapid takedown measures in case of violation. Ofcom says VSP providers should:
- Inform advertisers or other third parties who use the VSP services of the requirements, for example, in the terms of a contract or during the development of the advertisement.
- Ensure that all advertising tools provided by the VSP notify the user of the relevant requirements.
- Take prompt action to remove or edit any advertising that may violate the requirements and take steps to prevent recurrence of any identified issues.
Obligations on advertising not controlled by VSP
With respect to advertising not controlled by the providers, their obligation is limited to taking “appropriate measures” to comply with the requirements described above.
What are “appropriate measures”?
Ofcom says that, at a minimum, “appropriate measures” require that the terms of service (or community guidelines) cover advertising requirements, including that:
- a person must not upload a video containing advertising for a prohibited product to the VSP;
- a person must not upload a video containing an advertisement for an alcoholic beverage (a restricted product) to the VSP unless they meet the general advertising requirements and the requirements for restricted products; and
- a person should not upload a video to the VSP that contains advertising for anything else unless it meets the general advertising requirements.
These terms and conditions and the consequences of their violation must be clearly communicated to users. Ofcom encourages providers to have a specific advertising-related section in 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. Suppliers are also encouraged to produce a simple, user-friendly summary of advertising requirements, including examples of what would and would not be permitted under them.
The legislation sets out other measures that it may be appropriate for the provider to take, such as requiring uploaders to bring restricted material to the provider’s attention and establishing user-friendly reporting mechanisms. Determining which measures should be taken and how to implement them to achieve the required protections depends on the feasibility and proportionality of the measure, taking into account the following factors:
- the size and nature of the PSV
- the nature of the material in question
- the potential harm of the material to users (this is a primary consideration)
- whether protected characteristics are affected
- the rights and legitimate interests at stake (including the general public interest)
- other measures already taken and/or to be taken.
Within the framework of the VSP, advertising must be transparent for the users of the service.
Whether or not the advertising is controlled by VSP, the provider has a general obligation to clearly inform users when the videos contain advertising when the provider has knowledge of the fact or the advertising has been declared by the uploader.
VSPs must take the following steps that are appropriate to meet advertising transparency requirements, including:
- provide functionality to users who download content to declare the presence of advertising. This functionality should be easy to use, accessible to all users and suitable for all devices. Ofcom encourages providers to make this a mandatory step in the video download process and lists as “best practice” functionality that allows the downloader to provide additional information about the advertisement, for example by identifying relevant third parties in the video.
- a requirement in the terms and conditions of the service that users who upload content must use this feature to declare that the video contains advertising. The terms and conditions must be clear and applied rigorously and consistently.
Ofcom recommends that once the advertisement in the video has been declared using the feature, providers use an automated system to communicate its presence to users (along with any other advertisements of which they are aware). Ofcom provides an example of such communication as the practice of applying #ad which is encouraged by the ASA in social media advertisements. Communication should be prominently displayed and occur as early as possible in a user’s exposure to advertising. Additionally, where the uploader has provided the additional information (as described in the best practices above), that information should also be clearly communicated.
Ofcom’s final statement highlighted the increasing regulatory requirements surrounding advertising on VSPs. Providers should consider whether they market, sell, or arrange enough advertising to trigger additional content regulation obligations. In any case, all providers will need to review their terms and conditions of service to ensure they contain appropriate measures to keep users safe.