Ofcom guidance on advertising on video-sharing platforms

What do operators of video-sharing platforms (VSPs) need to do to stay compliant with Ofcom’s guidance for advertising on their platforms?

The key takeaway

Levels of compliance with Ofcom’s guidance depends on whether the ads are under the control of the VSP or not. Equally, there are general requirements which apply across all ads on VSPs.

The background

Specific changes to the Communications Act 2003 came into force in November 2020, which introduced regulatory requirements for UK-based video-sharing platforms and set Ofcom as their regulator. Ofcom launched a consultation in May 2021, and issued guidance to VSPs in relation to the protection of users from harmful material in October 2021.

Continuing on its regulatory efforts, Ofcom released guidance to VSPs in December 2021 on advertising harms and measures, which is set to shape how advertising works on VSPs and operators’ obligations in respect of these ads. The latest guidance should be read in conjunction with the previous May 2021 guidance.

The development

The guidance specifically discusses the requirements set under the Audio-visual Media Services Directive, which requires VSPs to take appropriate measures to ensure the protection of minors from restricted material and the protection of the general public from relevant harmful material in all videos and advertising. These appropriate measures include:

• terms and conditions preventing harmful material
• reporting, flagging or rating of content
• access control measures such as age assurance and parental controls
• complaints processes, and
• media literacy tools and information.

The guidance discusses the specific requirements for VSPs in terms of ads posted on their services. These requirements will depend on whether the ads are “marketed, sold or arranged” by the VSPs (ie if they are VSP-controlled) or not, namely: if any advertising is VSP-controlled, the VSP is “directly responsible” for the day-to-day regulation of the ad content in line with the above requirements; or if ads are not VSP-controlled, the VSP must take “appropriate measures” to ensure that the advertising meets these requirements.

Regardless of control over the specific ads, there are some requirements all advertisements must adhere to, namely that the advertising:

• must be readily recognisable as advertising
• must not use techniques which exploit the possibility of a message being conveyed subliminally or surreptitiously
• must not prejudice respect for human dignity or discriminate based on sex, race, ethnic origin, nationality, religion or belief, disability, age or sexual orientation
• must not encourage behaviour grossly prejudicial to the protection of the environment
• must not cause physical, mental or moral detriment to persons under the age of 18
• must not entice under 18 year-olds to purchase or rent goods or services in a way that exploits their inexperience or credulity, and
• must not exploit the trust of under 18 year-olds in parents, teachers or others or unreasonably show them in dangerous situations.

Additionally, VSPs have to be thoroughly transparent about advertising (including in videos), which includes making available functionality through which users can upload content that declares it contains advertising and include in their terms and conditions a requirement to use that functionality.

Why is this important?

Although the Online Safety Bill, currently going through the legislative process, will be the main legislation dealing with VSPs and other online entities, Ofcom’s guidance is important to ensure that advertising on VSPs remains fully complaint with current requirements. The guidance also deals with paid-for advertising, which will not be included in the Online Safety Bill (as things stand). Ofcom will be enforcing advertising requirements via the Advertising Standards Authority, so the CAP Code should also be kept firmly in mind in relation to VSP advertising.

Any practical tips?
Review the guidance in detail and ensure that any current and future ads on any VSPs will remain compliant. Taking steps now may well prevent costly interventions in the future as Ofcom begins to find its stride in the regulation of this sector.

Spring 2022