On 7 December 2021, Ofcom released a statement announcing that the UK Advertising Standards Authority (ASA) has been designated the day-to-day regulator of video sharing platform (VSP) controlled advertising, with Ofcom remaining as the statutory backstop regulator.
Avid readers will remember that the Communications Act 2003 (“the Act”) was amended by the Audiovisual Media Services Regulations 2020 (“the Regulations”) on 1 November 2020 - see our previous article on this here. This introduced the following advertising requirements for adverts on VSPs:
- Where the advertising is marketed, sold of arranged by the VSP, the VSP must comply with the Act concerning the general advertising requirements and provisions on prohibited and restricted products.
- Where advertising is not marketed, sold or arranged by a VSP, the VSP must take appropriate measures under Schedule 15A of the Act to ensure the advertising meets the general advertising requirements, provisions on prohibited and restricted products, and requirements relating to the transparency of advertising; and
- Regardless of whether or not the VSP has marketed sold or arranged the advertising, the VSP must clearly inform users that a video contains advertising (where they have knowledge of this or it has been declared to them by the uploader).
In May 2021, Ofcom began a consultation seeking views on its proposed frameworks and guidance in relation to the Regulations and proposed designation of the ASA as a co-regulator in respect of VSP-controlled advertising.
That consultation has now ended and Ofcom has released its statement and appointed the ASA as the day-to-day regulator of VSP-controlled advertising (which is similar to its co-regulatory arrangement with the ASA in respect of broadcast and on-demand advertising). In relation to non-controlled VSP advertising, Ofcom will be responsible for assessing the appropriate measures taken by VSPs, with the person or entity in control of such advertising being responsible for compliance with the normal advertising guidelines.
What has changed with the appointment of the ASA as designated regulator?
There has been no change in the law, so VSPs are still required to comply with the same law that has been in force since 1 November 2020. However, the ASA has added a new appendix to the CAP Code (“the Appendix”). This contains rules which reflect the legal requirements in the Regulations regarding protection of users. This enables the ASA to now consider complaints against VSPs under the rules in the Appendix (and therefore the requirements under the Act) in addition to the CAP Code.
The main rules in the Appendix are:
- Adverts must be recognisable as adverts and not use techniques to convey information subliminally or surreptitiously;
- Adverts must not prejudice respect for human dignity, include or promote discrimination, encourage behaviour prejudicial to health or safety or encourage behaviour grossly prejudicial to the protection of the environment;
- Adverts must not cause under 18s physical, mental or moral detriment, push them to purchase or rent goods or services in a manner which exploits their inexperience or credulity, directly encourage them to persuade their parents or others to purchase or rent goods or services, exploit their trust in parents, teachers or others, or unreasonably show them in dangerous situations;
- In addition to the above rules, adverts for alcoholic products must not be aimed at under 18s or encourage immoderate consumption of alcohol;
- Adverts for prescription only medicines, cigarettes, tobacco, electronic cigarettes and refills are prohibited.
In addition to the ASA's usual sanctions, such as requiring an advertisement be amended or withdrawn, or making a public ruling. Failure to comply with the CAP Code or the rules in the Appendix may result in the matter being referred to Ofcom. Ofcom's enforcement powers include issuing an enforcement notification (setting out steps to remedy the breach of the Regulations) and/or to impose a financial penalty. Ofcom also has the power to suspend or restrict a service.
Future developments on the horizon and the interplay with the Online Safety Bill
The Online Safety Bill is intended to supersede aspects of the Act, but not those provisions concerning paid-for advertising and the UK Government has stated that the ASA will continue to regulate advertising on VSPs.
For the foreseeable future, VSPs will still be required to comply with the Act, CAP Code and Appendix.