The UK’s VSP regime: flight-testing the regulation of social media firms

In February 2017, NASA began wind-tunnel tests of a new “quiet” supersonic passenger jet: one that wouldn’t emit the same “sonic boom” that afflicted Concorde, startling humans and animals and rattling windows. NASA’s test jet was merely a model, a 9% replica of the design that NASA hope will one day carry passengers at up to 950mph. Yet NASA hoped that the small-scale version would prove the concept of the full-scale model.

The UK’s new regulatory regime for video sharing platforms (VSPs) is the small scale-model to the full-size online harms jet, the regime that is likely apply to all platforms that allow users to share or discover user-generated contract or interact with one another online (see here). The UK Government originally intended for the VSP regime to be implemented as one component of the far broader online harms regime. But with the deadline fast-approaching for the UK to regulate VSPs (as required by the Audiovisual Media Services Directive) and the online harms regime still in development (see here and here), the Government has now changed tack and will introduce VSP regulation separately in autumn of this year.

The scope of the VSP regime is far smaller than the anticipated scope of the online harms regime. The VSP regime will only cover VSPs established in the UK whereas the online harms regime will extend to services other than VSPs and also to those not headquartered in the UK. It is likely that the VSP regime will only cover a handful of platforms (possibly no more than six - Twitch, TikTok, LiveLeak, Imgur, Vimeo and Snapchat).

Yet the VSP regime will test many of the same concepts that the online harms regime is likely to adopt:

• Protection from harm: VSPs will be required to have measures in place that are appropriate to protect young people from harmful content and the general public from criminal content and content that incites hatred or violence. In a similar vein, the online harms regime will likely require platforms to take reasonable steps to protect users from online harms.
• Proportionality: VSPs will need to assess which measures are appropriate to adopt based on the risk of harm they pose and their own resources. Similarly, the Government has indicated that companies within the scope of the online harms regime will need to take action proportionate to the scale and severity of the potential harm.
• Sanctions: Ofcom has confirmed what teeth the VSP regime will bear - VSPs that fail to have appropriate measures in place could face a range of sanctions, including notices requiring remedial action, financial penalties and even the suspension or restriction of the VSP’s service. Though the Government is yet to decide on the sanctions for the online harms regime, in its 2019 White Paper it listed fines, disruption of business activities, and ISP blocking as potential sanctions.

Regulation of this kind is new and untested. However, the VSP regime will give Ofcom the opportunity to flight-test its approach to regulation on a much smaller scale before it is asked to oversee the broader body of platforms within the scope of the online harms regime (assuming that Ofcom is confirmed as the regulator). Even those not within the scope of the regime will want to see how Ofcom regulates VSPs: how interventionist will it be? How will it gather intelligence and oversee VSPs’ compliance? How will it expect firms to demonstrate their compliance with the regime: documenting their risk assessments and evaluating the effectiveness of their measures? How quickly will Ofcom resort to using its enforcement tools?

The VSP regime will be closely watched by many observers. Ofcom will be hoping for a smooth flight to demonstrate that it is ready to take the controls of the full-scale online harms jet.