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Sharing user-generated videos? New obligations on video-sharing platforms

Posted on 8 October 2020

Last year, we reported on the European Parliament's approval of the revised Audiovisual Media Services Directive (revised AVMSD), which extends the scope of regulation to cover video-sharing platforms (VSPs) (the existing rules only cover traditional TV broadcasters and video-on-demand services). As the revised AVMSD required implementation by EU Member States by 19 September 2020, the UK was also required to introduce a regime for VSPs' compliance. The UK Government therefore implemented the Audiovisual Media Services Regulations 2020 (UK AVMS Regulations) on 30 September and these will come into force on 1 November 2020. Ofcom is appointed as the regulator in respect of enforcement and monitoring of the UK AVMS Regulations but this is seen as an interim regime pending the introduction of the Online Harms framework.

What are VSPs?

The revised AVMSD defines a VSP as a commercial service addressed to the public:

  1. which stores a large amount of programmes or user-generated videos, for which the video-sharing platform provider does not have editorial responsibility;
  2. where the content is organised in a way determined by the provider of the service, in particular by hosting, displaying, tagging and sequencing;
  3. where the principal purpose of the service (or a dissociable section thereof), or an essential functionality of the service, is devoted to providing programmes and user-generated videos to the general public, in order to inform, entertain or educate;
  4. which is made available by electronic communications networks; and
  5. the organisation of this content is determined by the VSP, including by automatic means or algorithms in particular by displaying, tagging and sequencing.

The European Commission has published non-binding guidelines on the practical application of the essential functionality criterion  (see part 3 of the above definition) which are useful and the  Department for Digital, Culture, Media & Sport (DCMS) released a commissioned report in December illustrating the various (and sometimes confusing) aspects of the revised AVMSD's VSP definition (VSP Report). For example, according to the VSP Report, Snapchat may qualify as a VSP on the basis that shared video content is an essential functionality of its service, but video sharing is not Snapchat's principal purpose of the service (or a dissociable section thereof); in accordance with part 3 of the definition above. The VSP Report does not come to a firm conclusion on this noting: "Snapchat is a borderline case".

What is the current state of play?

The deadline for Member States to implement the revised AVMSD has passed. The UK AVMS Regulations are available to review here and we await the outcome of Ofcom's consultation which closed on 24 September calling for evidence in respect to regulating VSPs.

Why was Ofcom calling for evidence?

Ofcom recognises that VSP regulation is 'novel' and untested (both nationally and internationally) and therefore wanted input from stakeholders to create appropriate regulations.

Ofcom will (for the time being) be the regulator for VSPs 'established' in the UK (Article 28, revised AVMSD). Establishment is, as Ofcom notes, usually determined by reference to the Member State in which the service is headquartered. On that basis, Ofcom could be likely to have jurisdiction over popular VSPs such as TikTok and Twitch if they fulfil the legal definition of a VSP and the UK establishment criteria. On the other hand, well-known platforms such as YouTube, Facebook and Twitter are expected to fall under Irish jurisdiction should they meet the definition of a VSP.

If you are a VSP, what obligations will you have?

  1. Notify Ofcom.  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 notification regime will closely follow the existing model for On-Demand Programme Services (ODPS) under Part 4A of the Communications Act 2003.
  2. Pay Ofcom a notification fee. Any corresponding fees in respect to notification will be payable from 1 April 2022 (the beginning of the financial year for many companies).
  3. Comply with content rules. VSPs will have a duty to implement appropriate measures to protect young people from potentially harmful content, and all users from illegal content and incitement to hatred and violence (e.g. flagging and reporting mechanisms, parental controls, age assurance mechanisms and complaint functions). VSPs will also need to ensure standards around advertising are met. According to the UK AVMS Regulations, these measures are to be proportionate to the potential of the material to harm the physical, mental or moral development of such persons.
  4. Roll out appropriate terms and conditions. As part of the measures, VSPs will need to have in place and apply appropriate terms and conditions to the effect that a person: who uploads to the service a video that contains any restricted material, must bring it to the attention of the person who is providing the service; must not upload to the service a video containing relevant harmful material; and must not upload to the service a video containing an audiovisual commercial communication for an alcoholic drink unless that communication meets certain requirements.  

What can Ofcom do if you don't comply?

The UK Government intends to replicate the sanctions regime in place for ODPS. Ofcom will have a range of enforcement powers, including:

  1. issuing legally binding decisions if a VSP is in breach of its obligations for not taking appropriate measures to protect users.
  2. setting out the steps required to remedy the breach and ensure compliance.
  3. imposing financial penalties of up to 5% of ‘applicable qualifying revenue’ to ensure deterrence (Ofcom expects to have the power to issue maximum fines of the greater of £250k and 5% of the provider’s qualifying revenue, as deemed to be appropriate and proportionate. Financial penalties will be determined in line with Ofcom’s Penalty Guidelines).
  4. issuing a direction to suspend or restrict the entitlement to provide a VSP.

Unless there are serious instances of 'egregious or illegal harm', Ofcom notes that it does not expect to take formal enforcement action before Summer 2021.

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