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VIG (Very Important Guidance) for VSPs

Ofcom has today published its ‘Video sharing platform guidance: Guidance for providers on measures to protect users from harmful material’.  

The guidance has been published following Ofcom’s consultation on the draft guidance which opened in the Spring.

Ofcom’s powers are derived from Part 4B Communications Act 2003, which was introduced by the Audiovisual Media Services Regulations SI 2020/1062 (as amended) to implement the amendments to the Audiovisual Media Services Directive brought about by Directive (EU) 2018/1808, referred to as the VSP Framework. Post-Brexit, it is anticipated this will ultimately be repealed (see clause 130) and replaced as part of the Online Safety Bill.

The VSP Framework applies to UK-based VSPs, such as TikTok, Snapchat and Vimeo. It does not apply to VSPs based in other jurisdictions, such as Google’s YouTube platform.

VSPs are different to ODPS, or on-demand programme services, such as Netflix, which actively select content appearing on their services, whereas VSPs provide a platform for users to upload and publish content. Ofcom has previously published a separate consultation on guidance applicable to ODPS.

The VSP Framework provides that applicable VSPs:

  • must provide advance notification to of intended operation, any significant changes to their operation or cessation of the service (and Ofcom will from 2022 be entitled to charge a fee);

  • must publish certain information on their website;

  • are prohibited from displaying certain types of advertising, and are restricted from showing certain other types of advertising;

  • must take measures, practicable and proportionate to the relevant VSP having regard to its size and the nature of the material etc, to protect under 18s and the general public from restricted and harmful material; and,

  • highlight material identified by the uploader as commercial UGC to users.

Ofcom has the power to enforce these obligations, by issuing an enforcement notification or a penalty of the greater of £250,000 or 5% of qualifying revenue.

Ofcom’s VSP guidance refers to restricted material (i.e. material which has been or would be likely to be given an R18 certificate, material deemed or unlikely to be deemed unsuitable for classification, or other material which might impair the physical, mental or moral development of under 18s), and relevant harmful material (incitement to violence or hatred against particular groups, content which would be a criminal offence under terrorism, child sexual abuse, racism and xenophobia laws), is referred to as “harmful material” in the guidance. Ofcom’s VSP guidance provides examples of the types of material that might fall in the category of “harmful material”.

Ofcom’s VSP guidance recommends that VSPs conduct a risk assessment underpinning the measures they identify and implement to protect users against harmful material, and gather information on the effectiveness of those measures.

Ofcom’s VSP guidance is stated to be guided by 5 principles:

  • Transparent;

  • User-friendly;

  • Effective;

  • Fair; and,

  • Evolving.

Ofcom’s VSP guidance recommends that VSPs consider measures including:

  • implementing terms & conditions, prohibiting relevant harmful material, requiring restricted material to be flagged, and imposing obligations in relation to advertising;

  • providing functionality necessary to allow uploaded to flag advertising;

  • implementing a “transparent and user-friendly” mechanism to allow users to rate, flag and report harmful material, and explain action taken in relation to it;

  • establishing and operating age assurance mechanisms for viewers, and parental control mechanisms; and,

  • establishing a transparent, easy-to-use, effective complaints procedure that does not affect any civil liability the VSP may have to viewers.

The guidance discusses the VSPs to which these measures might be most applicable (having regard to the size and resources of the VSP to determine what is “practicable and proportionate”, recognising some proposals referenced would only be feasible for the largest providers), which measures are effectively mandatory, and how they might be implemented including Ofcom’s “good practice” recommendations and having regard to user behaviour, as well as additional steps VSPs may take over and above the minimum regulatory requirements.

Should you require assistance in understanding whether and how the VSP Framework applies to your organisation, how to implement measures to comply with your obligations, or liaising with Ofcom in the context of potential or active investigations or enforcement action, please contact us: info@handleygill.com.

Nicola CainBREXIT, VSPs, VIDEO SHARING PLATFORMS, VSP FRAMEWORK, OFCOM, CONTENT REGULATION, ONLINE HARMS, ONLINE SAFETY, ONLINE SAFETY BILL, TECH REGULATION, TECHNOLOGY REGULATION, PLATFORM REGULATION, AUDIO VISUAL MEDIA SERVICES, AUDIOVISUAL MEDIA SERVICES, AUDIOVISUAL MEDIA SERVICES DIRECTIVE, AVMS, AVMSD, COMMUNICATIONS ACT 2003, UGC, USER GENERATED CONTENT, CHILDREN, CSAM, CHILD SEXUAL ABUSE MATERIAL, TERRORISM, RACISM, XENOPHOBIA, TERRORIST CONTENT, RACIST CONTENT, XENOPHOBIC CONTENT, BBFC, BRITISH BOARD OF FILM CLASSIFICATION, BBFC CLASSIFICATION GUIDELINES, R18 CONTENT, INCITEMENT OF VIOLENCE, INCITEMENT OF HATRED, PROTECTED CHARACTERISTICS, RESTRICTED MATERIAL, RELEVANT HARMFUL MATERIAL, INTERNET WATCH FOUNDATION, NATIONAL CENTRE FOR MISSING & EXPLOITED CHILDREN, NCMEC, THORN, TECH AGAINST TERRORISM, GLOBAL INTERNET FORUM TO COUNTER TERRORISM, Age Verification, Age Assurance, Advertising, Advertising Restrictions, Parental Control, Content RegulationComment