New Ofcom video-sharing platform guidance

The question

What should video-sharing platforms be doing to comply with the new VSP legislation?

The key takeaway

Ofcom has published new guidance on how video-sharing platforms should endeavour to comply with new legislation on protecting the public from “relevant harmful material”.

The background

On 6 October 2021, Ofcom published its video-sharing platform guidance (Guidance). This seeks to help providers who fall within the scope of the statutory framework for the regulation of VSPs (under Part 4B of the Communications Act 2003) understand their obligations and the measures they should take to protect users from harmful material on their services. 

The framework requires providers in scope to take appropriate measures to protect the general public from “relevant harmful material”. This includes incitement of violence or hatred against particular groups as well as content which would be considered a criminal offence under laws relating to terrorism, child sexual abuse material, and racism and xenophobia. Providers are also required to take appropriate measures to protect under-18’s from “restricted material”.

The development

The guidance helps providers determine the protective measures they should take in any particular case. Essentially, providers must determine whether a measure is appropriate for protecting users from harmful material. This will be the case if the measure is practicable and proportionate, considering factors including the nature of the material and the potential harm it may cause, the characteristics of users (for example under-18s), the size and nature of the service, and the rights and legitimate interests of users, service providers and the general public. 

Why is this important?

Ofcom expects providers “to make meaningful efforts to prevent users from encountering “harmful material”. Failure to do so could result in a hefty fine of up to £250,000 of 5% of qualifying revenue, whichever is greater. In more extreme circumstances, Ofcom could order a suspension and/or restriction of the service.

Any practical tips?

Measures that could be taken include updating terms and conditions to explicitly prohibit the uploading of videos containing relevant harmful material, reporting or flagging mechanisms for users to deploy against such material, complaints processes and media literacy tools and information. To protect under 18s, additional measures could also include access control measures, such as age assurance and parental controls.

All VPSs are encouraged to conduct some form of risk management process based on Ofcom’s guidance for determining which measures are appropriate to protect users from harm. Failure to do so could be regarded as an unwillingness to invest in appropriate measures, which is unlikely to be tolerated by the regulator.