Do you allow the sharing or uploading of video content on your platform? If so, read on.

A ‘dissociable section’ could include a subdomain of a web property or a distinct part of an app. It might also include different types of user accounts or access to content, such as premium accounts that provide access to video. It may also be relevant to consider how a user experiences the service; for instance, a ‘dissociable section’ of a service might feel qualitatively different from other parts. Relevant factors here may include whether its purpose differs from the rest of the service. Each case will turn on its own facts.

To provide an illustrative example, a standalone section of a newspaper website dedicated to hosting user-generated videos on the site might be considered as a dissociable section of that service, if the videos are independent of the written press articles. Where such video clips are embedded in the editorial content (e.g. as a result of links between the text and the clips), so that they are indissociably complimentary to the journalistic activity, these would not fall within the VSP framework.

As defined under the Act, the term "video" means "a set of moving or still images, or of legible text, or of a combination of those things (with or without sounds), which constitutes an individual item irrespective of its length (and which is not an audiovisual commercial communication)”.

While this may seem obvious, some videos may also be available on on-demand programme services (ODPS) and therefore one also needs to consider the level of control the provider has on the video.

Interestingly, Ofcom’s proposed guidance notes that animated videos such as GIFs, are not covered within the VSP framework (except where they are used within a video).

As a general principle, Ofcom considers that ‘available to members of the public’ ordinarily refers to content that is openly accessible to the public at large and not limited to particular individuals.

‘Principal purpose’ refers to the main activity of the service or dissociable section, and the extent to which the offering is built around video. It is important to consider both the users’ perspective (for instance, how video content is presented to them) as well as the wider market context. Relevant indicators could include:

• Whether the service or dissociable section refers to itself as a video-sharing service, and how it markets itself or positions itself against its competitors;
• Whether the service or dissociable section is commonly referred to by others, including for instance users, press or analysts, as a video-sharing service;
• How the content itself is presented or described, including consideration around whether video-sharing is the main draw for users of the service or dissociable section; and
• Whether it provides media, features or services beyond video-sharing; in cases where it does, it may be relevant to consider the centrality of video-sharing to the service or dissociable section, including the proportion and relative prominence of video content on the service or dissociable section – for instance, the prominence given to video on a site’s homepage.

This only needs to be considered when looking at the service as a whole, where providing video is not the principal purpose of the service or a dissociable section of it. It is not applicable when considering the dissociable section. Service providers should have regard to the European Commission’s guidelines on the practical application of the essential functionality criterion. Assessment of ‘essential functionality’ will involve analysis of the service overall, assessing both the commercial and functional value of videos to the service. Annex 1 of the proposed guidance sets out Ofcom's interpretation of this guidelines and examples it believes are more likely to indicate that video is a minor or ancillary part of the service. 

Under section 368S(2)(a) of the Act, a service or dissociable section of a service can only meet the definition of a video-sharing platform if it is provided by means of an electronic communications network. Any service provided over the internet will meet this criterion.

This assessment will need to be undertaken on a case-by-case basis. The proposed guidance notes that as a general principle, the capacity to generate revenue through commercial arrangements, rather than actual revenue or profit, will be a key indicator. Businesses that intend to generate revenue or profit, but have not yet achieved the sufficient scale to monetise, may be considered to be offered on a commercial basis. The proposed guidance sets out a number of helpful illustrations and notes for example that, if a platform has advertising, subscription or pay-per view features, it will likely fall into this definition

Under section 368S(2)(c) of the Act, one of the defining criteria of a VSP is that “the person providing [the service or dissociable section] does not have general control over what videos are available on it, but does have general control over the manner in which videos are organised on it”.

‘Organisation’ includes automatic organisation or organisation by way of algorithms, in particular displaying, tagging and sequencing. The proposed guidance provides some helpful illustrations on how this may apply and notes that the level of control that an online provider exercises over video content available on their service is a key factor in assessing whether the service is an ODPS or a VSP.

There may be cases where a platform consists of a distinguishable ODPS and VSP service, where a dissociable section of a VSP service meets the ODPS criteria, or where a VSP service carries an ODPS. Providers may therefore need to refer to the statutory criteria for ODPS. Ofcom proposes to publish updated guidance on who needs to notify as an ODPS in early 2021.