Learn to fly: Ofcom releases the flight manual for the VSP regime

In the summer we published a post (see here) on the UK’s new regulatory regime for UK based video sharing platforms (VSPs), which is due to come into force on 1 November 2020. In broad terms, the new regime requires VSPs to take appropriate measures to protect users from harmful content.

Ofcom has now released guidance which is intended to assist stakeholders in understanding the obligations that will apply from 1 November 2020 and Ofcom’s approach to carrying out its new duties (see here). If the regime is the flight test for the broader online harms regime, we now have the flight manual.

Or, perhaps it is more accurate to say an early version of the flight manual. This guidance is intended only to set out Ofcom’s expectations and approach in the early period of the regulation. Ofcom sets out a timeline for publishing more detailed guidance:

21 October 2020 - Ofcom releases new guidance on regulating VSPs

1 November - UK VSP regime comes into force

Late 2020 - Ofcom will publish further guidance to help VSP providers to understand whether they are within the scope of the regime

6 April 2021 - Window opens for VSP providers to notify Ofcom whether their service falls within the scope of the regime

6 May 2021 - Window closes for VSP providers to notify Ofcom whether their service falls within the scope of the regime

Summer 2021 - Ofcom will publish guidance on harms and appropriate measures and advertising requirements.

The published guidance does not cover scope, which is one of the key points of uncertainty under the VSP regime. Instead, Ofcom states that VSP providers will need to make assessments themselves as to whether their service falls within the scope of the regime. It will publish further guidance on this later this year and existing VSP providers will be required to notify Ofcom that they fall within scope between 6 April and 6 May next year.

Ofcom also intends to publish further guidance in summer 2021. This will cover harms and appropriate measures and advertising requirements, including: examples of types of content that Ofcom considers have the potential to cause the most harm to children; detail on the types of measures most appropriate for protecting users; examples of good practice; and what Ofcom expects a VSP provider’s risk assessment to include.

The scope of the VSP regime is relatively narrow and will only be of direct relevance to a limited number of platforms. However, as we flagged in the summer, regulation of VSPs will give Ofcom the opportunity to flight-test its approach to regulation on a smaller scale before it is (likely) asked to oversee the broader body of platforms expected to be within the scope of the online harms regime. In our earlier post, we posed a number of questions about how Ofcom might approach its role, so what does the guidance tell us about:

• How interventionist it will be: The guidance suggests that Ofcom intends to take a collaborative approach, at least in the early stages. Ofcom emphasises its intention to “work with” VSP providers and it also appears to acknowledge that there is learning to be done on both sides, noting that it will engage with VSP providers “as we start to understand existing practices…”.
• How it will gather intelligence and oversee VSPs’ compliance: Ofcom intends to engage with VSP providers and wider industry regularly and conduct research on user experiences.
• How it expects firms to demonstrate their compliance with the regime: Ofcom expects VSP providers to conduct risk assessments to review the risk of harms to users and to assess existing measures against the new requirements. The guidance contains helpful pointers on what these risk assessments should consider. Ofcom emphasises that it will work with VSP providers to ensure they understand the steps they need to take.
• How quickly it will resort to using its enforcement tools: Whilst Ofcom will have the power to take enforcement action from 1 November 2020, it has indicated that it will prioritise only the most serious potential breaches and those that could reveal systemic failings for formal enforcement action prior to the publication of the summer 2021 guidance.

 It may only be an early version of the flight manual, but many in the industry will welcome Ofcom’s stated willingness to work collaboratively with VSPs, to engage on what measures are proportionate and to only resort to enforcement action in this early period where it is truly warranted.