Those involved in the media industry will be familiar with the long-established regulatory regime for linear and on demand audiovisual media services, however, from 6 April 2021, certain video-sharing platforms established in the UK will also be legally required to submit a formal notification of their service to Ofcom. The 6 May 2021 deadline by which existing providers must notify Ofcom is fast approaching. Failure to notify may lead to financial penalties.
The new regulatory regime is somewhat less intuitive than the existing regime, and therefore, anyone involved in any form of audiovisual content distribution should consider whether they are caught by the new regulations. In this note, we comment on the key criteria that video-sharing platform providers must review to determine whether their services (or any section of their services) fall under this new notification requirement, with reference to Ofcom’s recently released guidance notes, Video-sharing platforms: who needs to notify to Ofcom?.1
New regulations under the Audiovisual Media Services Directive 2018 came into force in the UK on 1 November 2020. The regulations, which are implemented under part 4B of the Communications Act 2003 (the Act), require video-sharing platforms (VSPs) established in the UK to submit a formal notification of their service to Ofcom. Existing providers must notify Ofcom by 6 May 2021, and VSP services commencing after 6 April must notify Ofcom at least 10 working days prior to launch.
Under section 3685S of the Act, a service or a dissociable section of that service may be deemed a VSP if either: (1) the ‘principal purpose’ of the service or relevant section of it is to provide videos to members of the public; or (2) it is an ‘essential functionality’ of the service to provide videos to members of the public. The VSP will be subject to regulation if, in addition, the VSP service is provided:
a) By means of an electronic communications network;
b) On a commercial basis;
c) By a person with general control over the manner in which videos are organised on the service, but without control over what videos are available; and
d) By a person with the required connection with the UK.