From 1 November 2020, the Communications Act 2003 has contained new rules derived from the amended Audio-Visual Media Directive, which aims to protect individuals from harmful content, including harmful advertising. ?The Act also conferred on Ofcom?new powers to regulate VSPs established in the UK.  

We wrote about the consultation on the advertising guidance earlier this year and as a result of that consultation, Ofcom has decided that the regulatory framework should mirror the?provisions in the Communications Act which distinguish between VSP-controlled and non-VSP controlled advertising: 

• VSP-controlled advertising:?VSPs are legally responsible for ensuring that any advertising they?market,?sell?or arrange?themselves meets certain requirements to protect users from potential harm. The ASA will be designated as co-regulator with responsibility for day-to-day regulation of VSP-controlled advertising, with Ofcom as a statutory backstop regulator. 
• Non-VSP-controlled advertising:?For advertising not marketed,?sold?or arranged by VSP providers,?VSPs are legally required to take?appropriate measures to ensure?such advertisements meet?the user-protection?requirements. Ofcom will assess?whether the measures taken by VSPs to protect users are appropriate. 

Ofcom has also published its final guidance which aims to assist VSPs with understanding, and complying with, their advertising obligations.  The guidance contains the following key points: 

General advertising requirements

Adverts included on a VSP must be readily recognisable as such; and must not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

Advertising on a VSP must not:

• prejudice respect for human dignity;
• include or promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
• encourage behaviour prejudicial to health or safety;
• encourage behaviour grossly prejudicial to the protection of the environment;
• cause physical, mental or moral detriment to persons under the age of 18;
• directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;
• directly encourage such persons to persuade their parents or others to purchase or rent goods or services;
• exploit the trust of such persons in parents, teachers or others; or
• unreasonably show such persons in dangerous situations.

Prohibited and restricted products

The rules prohibit advertisements for the following: cigarettes and other tobacco products; electronic cigarettes and electronic cigarette refill containers; or any prescription-only medicine. Advertisements for alcoholic drinks must not be aimed at minors and must not encourage immoderate consumption of alcohol. They must also comply with the general advertising requirements.

Transparency of advertising

VSP providers must comply with requirements regarding the transparency of advertising.  This may include:

• making available a functionality for users who upload content to declare the presence of advertising as far as they know or can be reasonably expected to know; and
• including and applying in the terms and conditions of the service a requirement that users who upload content make use of that functionality as applicable.

In addition, VSP providers must clearly inform users that a video contains advertising where they have knowledge of this, or its presence has been declared by the uploader using the functionality provided.