From today, 7 December 2021, the way we regulate advertising on some video-sharing platform (VSP) services will be changing. We have been designated by Ofcom as the co-regulator for VSP-controlled advertising appearing on UK-regulated VSP services.
A new Appendix has been included in the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code), which will apply to aspects of advertisements on VSP services that are subject to statutory regulation under the Communications Act 2003 (as amended). This Appendix contains rules reflecting the new statutory requirements.
The Appendix doesn’t introduce new requirements for VSP advertising: VSPs are already required, under law, to comply with them and the Appendix is consistent with the principles of the CAP Code. Adding these requirements to an Appendix of the CAP Code means that we can take action on suspected breaches against the VSP provider and without the need to refer to Ofcom to use its statutory enforcement power.
The changes don’t impact on your ability to make a complaint about an ad you’ve seen on a VSP – if anything it makes it simpler because we will be acting as the one-stop-shop for advertising-related complaints. If you wish to complain about an ad you can contact us in the usual way.
Why has the CAP Code changed?
The rules in the new Appendix directly mirror legal requirements for video-sharing platform advertising that have been in place since November 2020. These legal requirements stem from the Audiovisual Media Service Directive and have been incorporated into UK law as amendments to the Communications Act 2003. Ofcom is the body responsible for ensuring compliance with the Act.
As the ASA is the independent UK regulator for advertisements, Ofcom has designated us as the appropriate regulatory authority to deal with complaints about VSP-controlled advertising in the first instance. Ofcom will act as a backstop regulator, which means that we are able to refer cases to Ofcom if advertising continues to appear despite an ASA ruling against it.
Who is affected?
Not all VSP advertising is subject to the new Appendix. Only advertisements on services that are subject to statutory regulation under the Communications Act 2003 are affected. The statutory framework for the regulation of VSPs is set out in Part 4B of the Act and providers of such services are legally required to notify Ofcom that they are operating.
Under the Communications Act, it is the VSP provider that bears the responsibility for advertising that they market, sell or arrange – in other words, advertising that they control: Ofcom has published guidance on the issue of control which may be found here. So the new Appendix applies to the VSP. This is similar to Appendix 2 (“Advertising rules for on-demand services regulated by statute”) but different from the rest of the rules in the CAP Code, which apply to the marketer.
What is new?
While the ASA already considers complaints about VSP advertisements under the CAP Code, in certain cases it will now consider complaints under the Appendix instead. The Appendix rules can be found below and the CAP Code can be viewed on the CAP website
Are the Appendix rules the only rules for VSP advertisements?
No. VSP advertising will continue to be subject to the main CAP Code. As with all other non-broadcast marketing communications, the advertiser bears the primary responsibility for ensuring compliance with the CAP Code. The Appendix, however, contains additional rules directly derived from the Act for which the provider of the media service bears the primary responsibility.
What happens if the ASA receives a complaint about your ad or an ad that’s appeared on your service?
If we investigate complaints about an ad on an Ofcom-regulated service, we will contact the marketer about potential breaches of the main CAP Code rules and inform them if we are also contacting the VSP about potential breaches of the Appendix rules.
Conversely, we will contact the VSP about potential breaches of Appendix rules, and inform the marketer that we have done so.
We will also continue to contact VSPs about potential breaches of CAP rules relating to taste and decency or social responsibility. Although service providers are not legally responsible for compliance with these rules, we routinely contact media owners when considering these aspects of the CAP Code to ensure we take account of editorial context when considering such complaints.
What sanctions does the ASA have?
The usual ASA sanctions will apply such as the requirement to have ads that are found in breach of the Code removed or amended, and the publication of a ruling.
However, our designation by Ofcom means that we have access to a new sanction. Failure to comply with the rules in the VSP Appendix may result in the matter being referred to Ofcom with a view to Ofcom considering whether the VSP has contravened the relevant requirements of the Act. Ofcom’s enforcement powers include the power to issue an enforcement notification setting out steps to remedy the breach and/or to impose a financial penalty. In some circumstances, Ofcom also has the power to suspend or restrict a service.
What help and guidance is available to marketers and VSPs?
As with any non-broadcast marketing communication, the CAP Copy Advice Team provides fast, free and confidential advice on the likely compliance of advertisements under the CAP Code. The Copy Advice Team gives advice on both the main CAP Code rules and the VSP Appendix rules. Advertisers and VSPs should also sign up to CAP Services to access all the available guidance.
What do the new rules say?
31.1 Advertisements included on a regulated VSP:
a) must be readily recognisable as such; and,
b) must not use techniques which exploit the possibility of conveying a message
subliminally or surreptitiously.
31.2 Advertisements on a regulated VSP must not:
a) prejudice respect for human dignity;
b) include or promote discrimination based on sex, racial or ethnic origin, nationality,
religion or belief, disability, age or sexual orientation;
c) encourage behaviour prejudicial to health or safety;
d) encourage behaviour grossly prejudicial to the protection of the environment;
e) cause physical, mental or moral detriment to persons under the age of 18;
f) directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;
g) directly encourage such persons to persuade their parents or others to purchase or rent goods or services;
h) exploit the trust of such persons in parents, teachers or others; or,
i) unreasonably show such persons in dangerous situations.
Prohibited and restricted products
31.3 Advertisements for the following are prohibited:
a) cigarettes and other tobacco products;
b) electronic cigarettes and electronic cigarette refill containers;
c) prescription-only medicines.
31.4 Advertisements for alcoholic drinks must comply with the general advertising requirements set out in 31.1 (a-b) and 31.2 (a-i), and must not:
a) be aimed at persons under the age of eighteen;b) encourage immoderate consumption of alcohol.