Following the Audiovisual Media Services Regulations 2020 (UK AVMS Regulations) coming into force on 1 November 2020 (reported on here), Ofcom has published a consultation on proposed guidance to help providers assess whether they need to notify Ofcom that they are operating a video-sharing platform (VSP).
Going forward, it is clear that the UK AVMS Regulations do not just apply to common video sharing platforms like YouTube and Twitch (for example). They also apply if you have a 'dissociable section' function on your website which has as its principal purpose (or as an essential function) the ability for the public to upload videos. VSPs will not have to implement various measures however if they have general control over the manner in which videos are organised on the platform.
If you're not a VSP but upload lots of content onto VSPs, you will be subject to tighter Terms and Conditions, as prescribed by the AVMS Regulations, and will need to understand the new functionality and processes implemented by VSPs.
Anyone who is sharing video content or even uploading video content may want to consider responding to this consultation. The consultation closes at 5.00 pm on 14 January 2021 and is available to view here.
Under the AVMS Regulations, existing VSPs under UK jurisdiction are required to notify Ofcom between 6 April and 6 May 2021, and services commencing after 6 April 2021 must notify Ofcom before they launch.
Ofcom's proposed guidance will help services determine:
- whether they meet the definition of a VSP under the Communications Act 2003 (Act),
- whether they fall within UK jurisdiction, and
- when and how they should notify their service to Ofcom.
Video Sharing Platform Service Criteria
The proposed guidance provides a helpful flow diagram to help service providers consider how they might assess the criteria set out in the Act. In order to be classified as a VSP, the principal purpose of the service, or a dissociable section of the service, or an essential functionality of the service must be providing videos to members of the public.
What is a 'Dissociable Section'?
A ‘dissociable section’ could include a subdomain of a web property or a distinct part of an app. It might also include different types of user accounts or access to content, such as premium accounts that provide access to video. It may also be relevant to consider how a user experiences the service; for instance, a ‘dissociable section’ of a service might feel qualitatively different from other parts. Relevant factors here may include whether its purpose differs from the rest of the service. Each case will turn on its own facts.
To provide an illustrative example, a standalone section of a newspaper website dedicated to hosting user-generated videos on the site might be considered as a dissociable section of that service, if the videos are independent of the written press articles. Where such video clips are embedded in the editorial content (e.g. as a result of links between the text and the clips), so that they are indissociably complimentary to the journalistic activity, these would not fall within the VSP framework.
What is a 'video'?
As defined under the Act, the term "video" means "a set of moving or still images, or of legible text, or of a combination of those things (with or without sounds), which constitutes an individual item irrespective of its length (and which is not an audiovisual commercial communication)”.
While this may seem obvious, some videos may also be available on on-demand programme services (ODPS) and therefore one also needs to consider the level of control the provider has on the video.
Interestingly, Ofcom’s proposed guidance notes that animated videos such as GIFs, are not covered within the VSP framework (except where they are used within a video).
Is the service or dissociable service available to 'members of the public'?
As a general principle, Ofcom considers that ‘available to members of the public’ ordinarily refers to content that is openly accessible to the public at large and not limited to particular individuals.
Is providing videos to members of the public the ‘principal purpose’ of the service or a dissociable section of the service?
‘Principal purpose’ refers to the main activity of the service or dissociable section, and the extent to which the offering is built around video. It is important to consider both the users’ perspective (for instance, how video content is presented to them) as well as the wider market context. Relevant indicators could include:
- Whether the service or dissociable section refers to itself as a video-sharing service, and how it markets itself or positions itself against its competitors;
- Whether the service or dissociable section is commonly referred to by others, including for instance users, press or analysts, as a video-sharing service;
- How the content itself is presented or described, including consideration around whether video-sharing is the main draw for users of the service or dissociable section; and
- Whether it provides media, features or services beyond video-sharing; in cases where it does, it may be relevant to consider the centrality of video-sharing to the service or dissociable section, including the proportion and relative prominence of video content on the service or dissociable section – for instance, the prominence given to video on a site’s homepage.
Is providing videos to members of the public an ‘essential functionality’ of the service?
This only needs to be considered when looking at the service as a whole, where providing video is not the principal purpose of the service or a dissociable section of it. It is not applicable when considering the dissociable section. Service providers should have regard to the European Commission’s guidelines on the practical application of the essential functionality criterion. Assessment of ‘essential functionality’ will involve analysis of the service overall, assessing both the commercial and functional value of videos to the service. Annex 1 of the proposed guidance sets out Ofcom's interpretation of this guidelines and examples it believes are more likely to indicate that video is a minor or ancillary part of the service.
Is the service provided via an electronic communications network?
Under section 368S(2)(a) of the Act, a service or dissociable section of a service can only meet the definition of a video-sharing platform if it is provided by means of an electronic communications network. Any service provided over the internet will meet this criterion.
Is the service or dissociable section provided on a commercial basis?
This assessment will need to be undertaken on a case-by-case basis. The proposed guidance notes that as a general principle, the capacity to generate revenue through commercial arrangements, rather than actual revenue or profit, will be a key indicator. Businesses that intend to generate revenue or profit, but have not yet achieved the sufficient scale to monetise, may be considered to be offered on a commercial basis. The proposed guidance sets out a number of helpful illustrations and notes for example that, if a platform has advertising, subscription or pay-per view features, it will likely fall into this definition
What level of control does the provider have in relation to the videos?
Under section 368S(2)(c) of the Act, one of the defining criteria of a VSP is that “the person providing [the service or dissociable section] does not have general control over what videos are available on it, but does have general control over the manner in which videos are organised on it”.
‘Organisation’ includes automatic organisation or organisation by way of algorithms, in particular displaying, tagging and sequencing. The proposed guidance provides some helpful illustrations on how this may apply and notes that the level of control that an online provider exercises over video content available on their service is a key factor in assessing whether the service is an ODPS or a VSP.
There may be cases where a platform consists of a distinguishable ODPS and VSP service, where a dissociable section of a VSP service meets the ODPS criteria, or where a VSP service carries an ODPS. Providers may therefore need to refer to the statutory criteria for ODPS. Ofcom proposes to publish updated guidance on who needs to notify as an ODPS in early 2021.
A VSP provider will be deemed to be within UK jurisdiction (both pre- and post-transition) if it provides the service, or a dissociable section of the service, through a fixed establishment in the UK for an indefinite period, and effectively pursues an economic activity in doing so.
A VSP provider will also be deemed to be within UK jurisdiction until the end of the Brexit transition period if, although not established in the UK or an EU member state in accordance with the primary criteria above it: (a) has a parent undertaking or a subsidiary undertaking that is established in the UK, or (b) is part of a group and another undertaking of that group is established in the UK. As noted in the proposed guidance and the "fixing legislation" laid by the UK Government, the term group undertaking is drafted widely and has the meaning given to it in section 1161 of the Companies Act 2006(5), except that it also includes all other undertakings having economic and legal organisational links to a VSP provider. The Government has stated its intention for aspects of VSP regulation in the UK to be superseded by new legislation to be introduced following the Online Harms Bill. We are currently awaiting further updates.
Again, there is a helpful flow diagram to assist with this including relevant factors to consider in determining whether a company is established and pursuing an economic activity in the UK.
As noted above, a VSP established in the UK will have to notify Ofcom from 6 April 2021 (with a grace period provided until 6 May 2021) that it provides a VSP service under UK jurisdiction. The proposed guidance sets out what notification involves and the practical steps (including submitting notification via a dedicated web portal on Ofcom's website).
Examples of VSPs
The proposed guidance sets out a non-exhaustive list of some examples of VSPS. This includes:
- An app which serves or recommends user-generated videos;
- A service which hosts videos and which allows users to upload videos and engage with other users’ content, supported by advertising or subscriptions;
- A non-mainstream service viewable by any member of the public, comprising video content uploaded by users which is of special interest;
- A live-streaming service which allows users to host video streams viewable by other users; and
- A section of a service, such as subdomain of an online property or section of an app, which prominently features user-generated video content without editorial control by the host service, and which differs in form and purpose from the rest of the service.
Services which are unlikely to meet the definition of a VSP include:
- A service allowing users to upload and share videos within a business intranet;
- An online newspaper, where videos are embedded within the journalistic or editorial content of the service; and
- An ‘on-demand’ or ‘catch-up service’ for a broadcast television channel made available from the broadcaster’s own branded website (this is likely to be an ODPS service).