On Friday 16 July 2020, the UK communications regulator, Ofcom, published a consultation on video-sharing platform regulation, calling for views by 24 September 2020. The UK government intends to introduce a new statutory framework this Autumn to implement the revised Audio-Visual Media Services Directive, including new obligations on UK-established video-sharing platforms (which the consultation says might include platforms such as TikTok and Twitch). This is an interim regime for the regulation of UK video-sharing platforms until the new online harms framework comes into force. Ofcom is seeking views now from platforms, experts, users and other organisations in order to help shape its approach to regulating video-sharing platforms, both in relation to the legislation expected to come into force in the Autumn and the subsequent guidance on the services which should fall within scope.
Services in Scope
The government intends to define video-sharing platforms (VSPs) in accordance with the Audio-Visual Media Services Directive (AVMSD). The AVMSD defines VSPs as services where “the principal purpose of the service…or an essential functionality of the service is devoted to providing programmes and/or user-generated videos to the general public, for which the VSP provider does not have editorial responsibility…”. However, the consultation says Ofcom will issue guidance for services in the Autumn to help them understand a) whether they fall within the definition and b) whether they fall under UK jurisdiction. The consultation lists six potential VSPs which are likely to fall under UK jurisdiction: Twitch, TikTok, LiveLeak, Imgur, Vimeo and Snapchat. YouTube, on the other hand, is said to be likely to fall under Irish jurisdiction, as it is headquartered there.
The revised AVMSD also introduces new requirements for On Demand Programme Services (which are the on-demand services currently regulated under the AVMSD) and changes the relevant definitions. Consequently, the Government recognises that this a potentially complex area, where companies will require further guidance to help them determine which category their services fall into.
Notification to Ofcom and Fees
VSPs will be required to notify Ofcom that they provide a VSP service under UK jurisdiction. The regime will closely follow the existing regime for On-Demand Programme Services. It is proposed that the new provisions relating to notification will come into force on 6 April 2021 and services will have until 6 May 2021 to notify. The guidance will be issued before 6 April. It is intended that VSPs in scope will have to pay regulatory fees to Ofcom from April 2022.
Obligations on VSPs
In line with the revised AVMSD, UK VSPs will be required to have in place the following measures:
- Measures to protect minors from content which may impair their physical, mental or moral development;
- Measures to protect the general public from content inciting violence or hatred; and
- Measures to protect the general public from content constituting criminal offences (public provocation to commit a terrorist offence, offences concerning child sexual exploitation and abuse and offences concerning racism and xenophobia).
These measures include having in place and applying terms and conditions, flagging and reporting mechanisms, age verification systems, systems to rate the content by the uploaders or users, parental control systems, easy-to-access complaints functions and the provision of media literacy measures and tools.
The Government intends to give Ofcom a duty to issue guidance to VSPs on the application of these measures. One aspect of the consultation is to seek views on these measures to inform the development of this guidance.
The consultation states that it is the Government’s intention for VSP regulation to be superceded by the Online Harms Bill, when that comes into force, and therefore this is an interim framework for VSPs. While the proposed VSP framework will catch UK headquartered VSPs only, the proposed online harms framework is intended address harms across a broader range of services and will not be limited to UK headquartered organisations. Our previous blog on the Online Harms Framework can be read here.
Hogan Lovells is closely following the UK government’s proposals in relation to regulation of online platforms. This consultation is running from 16 July to 24 September 2020. If you would like to respond to the consultation to help shape the UK’s regulatory regime for platforms, we have a dedicated team in London who can assist you.