DCMS Consults on Implementing New Rules for VSPs

As outlined in our blog post on the implementation of the AVMS directive, legislative amendments to the AVMSD were published in the EU Official Journal and entered into force on 19 December 2018 following lengthy negotiations. The reform seeks to modernise the AVMSD to reflect market consumption and technological changes, largely arising from the merging of television, internet services and the rise of on-demand content consumption. Specifically, the reform aims to align the regulatory landscape (to some extent) for emerging audiovisual media services (including video-sharing platforms or "VSPs"), enhance protections for minors and consumers, combat racial and religious hatred, and safeguard media plurality.

In April this year, the Department for Digital, Culture, Media, and Sport (DCMS) issued its Online Harms white paper, in which it which put forward a range of measures to deal with online harm, including measures to regulate VSPs as part of its implementation of the revised AVMSD (see our blog post on this). These measures subsequently formed the subject of a consultation which ran until 1 July 2019.

Subsequently at the end of May this year the DCMS launched a separate consultation in relation to the implementation of the revised AVMSD (closing on 22 August), as part of which it indicated that it was considering adopting an interim approach to the new VSP measures, in recognition of the fact that it may not be possible to enact the full range of measures contemplated by the Online Harms white paper by the revised AVMSD implementation deadline of 19 September 2020.

Little detail was given as to the nature of this interim approach at the time, other than that the new VSP requirements would be placed into UK law via an 'alternative mechanism' and that Ofcom would be appointed as the national regulatory authority to regulate VSPs (as required by the revised AVMSD), with the implication that such appointment may be temporary.

In July the DCMS decided to proceed with this interim approach, and has now launched a further consultation specifically relating to requirements for VSPs. This consultation seeks to gather views on the interim approach to be adopted and in particular on:

• how the definition and jurisdictional scope of "VSP" should be transposed into UK law;
• appropriate measures to be taken to protect users of VSPs;
• powers of Ofcom with respect to VSPs (including enforcement and sanctions);
• how to fund Ofcom's expanded role.

The consultation closes on 17 September 2019, and there are a number of stakeholder sessions scheduled for mid-August. Given that online harm and the role of online platforms is very much a hot-topic at the moment, we expect to see more activity in this area over the Autumn. It will be interesting to see how the various stakeholders (including Ofcom itself) react to DCMS' proposals and navigate what is effectively uncharted regulatory territory, and it remains to be seen whether Ofcom's new interim role as the VSP regulator will become permanent or whether DCMS will eventually look to create a new regulator in this space.