Ofcom publishes new report on video-sharing platforms

What does Ofcom’s new report, entitled “Regulating Video-Sharing Platforms” (VSPs), consider good practice in respect of user policies and terms and conditions of video sharing platforms?

The question

What does Ofcom’s new report, entitled “Regulating Video-Sharing Platforms” (VSPs), consider good practice in respect of user policies and terms and conditions of video sharing platforms?

The key takeaway

Ofcom’s new report sets out its observations and recommendations following its review of six VSPs’ user policies and T&Cs. Key examples of good practice highlighted by Ofcom include: clarity and accessibility; specifying which content is prohibited; comprehensive guidance for internal moderators; explaining the consequences of breach; and keeping T&Cs and policies under review. Ofcom is expected to publish further reports on VSPs over the coming months.

The background

The Communications Act 2003 (the Act) introduced Ofcom as the regulator of telecommunications, radio, post and television broadcasting. Developments in the media and communications markets, including the rise in user-generated content, led to the EU’s Audio-Visual Media Services Directive in 2018, a subsequent amendment to the Act and the start of a VSP regulatory regime.

In November 2020, Ofcom’s powers were extended to include the regulation of VSPs. Ofcom’s role is to ensure that VSP providers have appropriate safety measures in place to protect users from harmful online videos. Relevant videos include content which may impair the development of children, incite violence and hatred, or which display acts of terrorism, child sexual abuse, racism or xenophobia.

VSP providers are legally obliged to notify Ofcom of their platform if the VSP meets specific legal criteria. At the time of writing, 20 VSPs, including Snap, Twitch and TikTok, are notified to Ofcom as being caught within the UK VSP regulatory regime.

The development

On 9 August 2023, Ofcom published its first 2023 report, “Regulating Video-Sharing Platforms”, which sets out observations and recommendations on VSPs’ T&Cs and user policies. The report follows a review of six notified VSPs’ policies, namely Snap, TikTok, Twitch, BitChute, Brand New Tube, and OnlyFans, and the different approaches taken to implement the policies.
 
Ofcom’s research identified several issues with current T&Cs ranging from poor accessibility and readability to a lack of clarity on the consequences of breach. The report also raises concerns about the quality of internal training and guidance for moderators on how to enforce T&Cs effectively.
Against this background, the report sets out examples of good practice for VSP providers to help them improve their approach to writing and implementing T&Cs. In summary, it recommends that:

• T&Cs should be clear, easy to locate and accessible – this may mean tailoring the language or location of the T&Cs on the platform to match the likely comprehension level of the user. It may also mean exploring different techniques to measure how users engage with and understand T&Cs.
• T&Cs should specify which type of content is prohibited – T&Cs should be clear about the type of videos which will likely cause harm, particularly to children. They should indicate circumstances where content should be tagged as being sensitive, mature or graphic.
• Moderators should have comprehensive internal guidance to help them apply T&Cs effectively – Ofcom recommends that VSP providers provide moderators with definitions of key terminology, audio and/or visual case studies and detailed guidance to demonstrate how to assess a potential violation of the T&Cs and to determine appropriate responses to harmful content.
• T&Cs should clearly explain the consequences of any breach – this may include setting out the content which is, and is not, permitted on the VSP and the range of potential action that could be taken against a user.
• VSP providers should keep T&Cs and internal guidance under review – Ofcom recommends taking a regular and proactive approach to conducting reviews and taking a reactive approach when a new risk emerges. The development of processes for reviewing and testing polices should involve experts and should strike the correct balance between user safety and users’ rights. Changes to guidance and T&Cs should be communicated in a timely manner.

Ofcom is expected to publish further reports on VSPs over the coming months, including a report on VSPs’ measures to protect children and Ofcom’s plan for the next phase of the VSP regime.

Why is this important?

The report highlights the importance Ofcom places on T&Cs and how moderators are implementing T&Cs to protect users from online harms. The examples of good practice provide VSP providers with insight into the potential safety issues which may arise from their own user policies and what providers should be doing by way of preventative action. The VSP regime will eventually be replaced by an all-encompassing online safety regime when the Online Safety Bill receives Royal Assent (as discussed in our Spring 2023 edition of Snapshots). Ofcom will become a key regulator under the regime and has confirmed that it will use its experience of VSP regulation to inform the approach taken to regulating online safety.

Whilst the regimes place different obligations onto service providers, the recommendations help VSPs prepare for compliance with future duties under the new online safety regime.

Any practical tips?

VSP providers should take a holistic approach to reviewing the T&Cs on their platforms to ensure that they are clear, accessible and specific. Where necessary, providers should consider whether to involve internal and/or external experts in the policy development process when preparing T&Cs and guidance for moderators.

The examples of good practice set out in the report are a helpful starting point for VSPs when considering improvements to user safety whilst still striking the right balance with users’ ability to create, upload and view content on platforms. With the Online Safety Act round the corner, and Ofcom about to get its new powers, now is the time to pay particular attention to its recommendations.

Autumn 2023