Ofcom consults on advertising on video-sharing platforms

What measures are likely to be put in place on the advertising of video-sharing platforms (VSPs), like YouTube and TikTok?

The key takeaway

With heightened focus on the safety of users of VSPs, changes are likely to be made to the advertising standards for VSPs. Ofcom has launched a consultation, which spans proposed guidance and required monitoring measures.

The background

In late 2020, certain changes to the Communications Act 2003 (the Act) came into effect. The Act implemented several regulatory requirements for VSPs based in the UK, and obligated Ofcom to ensure their enforcement. Ofcom is therefore responsible for the regulation of VSPs, including advertising on such services.

The purpose of these amendments is to protect VSP users from harmful content, including several specific requirements relating to potential harm from advertising on these platforms.

The development

Ofcom has sought to reflect the distinction between two different types of advertising in the Act, namely advertising under the control of the VSP provider and advertising embedded within shared content uploaded onto the VSP (ie not under the control of the VSP provider).

For advertising controlled by the VSPs, VSPs have a legal responsibility to ensure that the ads meet certain standards. Ofcom proposes that for the day-to-day administration of advertising the Advertising Standards Authority (ASA) will be designated to fulfil this role, with Ofcom as the statutory back-stop regulator. Additionally, Ofcom is proposing the addition of a VSP annex to the CAP Code.

For advertising not controlled by VSPs, VSPs are required to take appropriate measures to protect their users, which will be enforced by Ofcom. Ofcom is proposing guidance on compliance, which will contain information covering the meaning of “control” and how to comply with the non-controlled-VSP rules.

In summary, Ofcom’s consultation covers five primary areas:

1. Proposed guidance surrounding how Ofcom will determine if a VSP has control over advertisements on their platform
2. Proposed guidance surrounding how Ofcom will seek to regulate the circumstances where VSPs have been found to be in control of advertisements on their platform
3. The involvement of the ASA as a co-regulator where VSPs have been found to control advertisements on their platform
4. The proposal for measures to be taken by VSP providers in order to appropriately monitor and regulate advertisements not controlled by the VSP, and
5. Proposed guidance on how Ofcom will seek to regulate non-VSP controlled advertisements.

Why is this important?

Earlier this year in May, the UK government published the draft Online Safety Bill (the Bill). The Bill aims to establish a new regulatory framework capable of tackling harmful online content. When the Bill enters into force, it will supersede many of the provisions of the Act and repeal those dedicated to advertising requirements.

In publishing this Bill, the UK government has also stated that, in the context of advertisements, the regulation of VSPs shall continue to fall to the responsibility of the ASA and Ofcom.

Through the creation of these proposals Ofcom has pre-considered and factored in the above, providing these amendments in compliment of the future regulation of the subject and potential provisions that may arise. Ofcom is seeking to adopt a collaborative approach allowing providers and regulators to work together ensuring that the advertising standards will be held in the best interests of both VSP users and the public.

Any practical tips?

The deadline for responding to the consultation is 28 July 2021. If you’re a VSP, keep a close eye on developments, noting that a summary of Ofcom’s findings is due shortly after the consultation end date.