F1PART 4BVIDEO-SHARING PLATFORM SERVICES
Enforcement
368Z2Enforcement of sections 368Y and 368Z1(6) and (7)
1
Where the appropriate regulatory authority determine that a provider of a video-sharing platform service is contravening or has contravened section 368Y or 368Z1(6) or (7) they may do one or both of the following—
a
give the provider an enforcement notification under this section;
b
impose a financial penalty on the provider in accordance with section 368Z4.
2
The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a contravention of section 368Y or 368Z1(6) or (7) is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.
3
An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes requirements on the provider to take such steps for complying with section 368Y or 368Z1(6) or (7) and for remedying the consequences of the contravention as may be specified in the notification.
4
The requirements specified in an enforcement notification may in particular include requirements to do one or more of the following—
a
cease providing or restrict access to—
i
a specified video, or
ii
videos of a specified description;
b
cease showing or restrict access to—
i
a specified audiovisual commercial communication, or
ii
audiovisual commercial communications of a specified description;
c
provide additional information about the content of a specified video or videos of a specified description prior to the selection of that video or a video of that description by an individual for viewing;
d
provide an out-of-court procedure of a specified description for resolving disputes between the provider and a person using the service;
e
show an audiovisual commercial communication marketed, sold or arranged by the provider on the service only with specified modifications; or
f
publish a statement of the findings of the appropriate regulatory authority in the form and place and for the time period specified.
5
An enforcement notification must—
a
include reasons for the appropriate regulatory authority’s decision to give the enforcement notification, and
b
fix a reasonable period for taking the steps required by the notification.
6
Where a person is required by an enforcement notification to publish a statement of findings, the person may publish with the statement of findings a statement that it is published in pursuance of the enforcement notification.
7
It is the duty of a person to whom an enforcement notification has been given to comply with it.
8
That duty is enforceable in civil proceedings by the appropriate regulatory authority—
a
for an injunction;
b
for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or
c
for any other appropriate remedy or relief.
9
If a person to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification, the appropriate regulatory authority may impose a financial penalty on that person in accordance with section 368Z4.
368Z3Enforcement of section 368Z1(1) and (2)
1
Where the appropriate regulatory authority determine that a provider of a video-sharing platform service—
a
has failed to take a measure set out in Schedule 15A which the authority consider to be appropriate in relation to that service for any of the purposes mentioned in subsection (1) of section 368Z1, or
b
has failed to comply with subsection (2) of that section,
the authority may take one or both of the actions mentioned in subsection (2).
2
The actions are—
a
give the provider an enforcement notification under this section;
b
impose a financial penalty on the provider in accordance with section 368Z4.
3
The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a failure mentioned in paragraph (a) or (b) of subsection (1) is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent failure.
4
An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes requirements on the provider to take such steps for complying with section 368Z1(1) or (2) and for remedying the failure as may be specified in the notification.
5
The requirements specified in an enforcement notification may in particular include requirements to do one or more of the following—
a
cease providing or restrict access to—
i
a specified video, or
ii
videos of a specified description;
b
cease showing or restrict access to—
i
a specified audiovisual commercial communication, or
ii
audiovisual commercial communications of a specified description;
c
provide additional information about the content of a specified video or videos of a specified description prior to the selection of that video or a video of that description by an individual for viewing;
d
provide additional information about the content of a specified audiovisual commercial communication or audiovisual commercial communications of a specified description included in or accompanying a video prior to the selection of that video by an individual for viewing;
e
take a specified measure set out in Schedule 15A that the appropriate regulatory authority consider to be appropriate for any of the purposes mentioned in section 368Z1(1);
f
make specified changes to the way in which a provider implements a measure set out in Schedule 15A;
g
show a video or an audiovisual commercial communication on the service only with specified modifications; or
h
publish a statement of the findings of the appropriate regulatory authority in the form and place and for the time period specified.
6
An enforcement notification must—
a
include reasons for the appropriate regulatory authority’s decision to give the enforcement notification, and
b
fix a reasonable period for taking the steps required by the notification.
7
Where a person is required by an enforcement notification to publish a statement of findings, the person may publish with the statement of findings a statement that it is published in pursuance of the enforcement notification.
8
It is the duty of a person to whom an enforcement notification has been given to comply with it.
9
That duty is enforceable in civil proceedings by the appropriate regulatory authority—
a
for an injunction;
b
for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or
c
for any other appropriate remedy or relief.
10
If a person to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification, the appropriate regulatory authority may impose a financial penalty on that person in accordance with section 368Z4.
368Z4Financial penalties
1
The amount of a penalty imposed on a provider of a video-sharing platform service under section 368W, 368Z2 or 368Z3 is to be such amount not exceeding 5% of the provider’s applicable qualifying revenue or £250,000, whichever is the greater amount, as the appropriate regulatory authority determine to be—
a
appropriate; and
b
proportionate to the contravention or failure in respect of which it is imposed.
2
In determining the amount of a penalty under subsection (1) the appropriate regulatory authority must have regard to any statement published by OFCOM under section 392 (guidelines to be followed in determining amount of penalties).
3
The “applicable qualifying revenue”, in relation to a provider, means—
a
the qualifying revenue for the provider’s last complete accounting period falling within the period during which the provider has been providing the service to which the contravention or failure relates; or
b
in relation to a person whose first complete accounting period falling within that period has not ended when the penalty is imposed, the amount that the appropriate regulatory authority estimate to be the qualifying revenue for that period.
4
For the purposes of subsection (3) the “qualifying revenue” for an accounting period consists of the aggregate of all the amounts received or to be received by the provider of the service to which the contravention or failure relates or by any connected person in the accounting period—
a
for the inclusion in that service of audiovisual commercial communications;
b
in respect of charges made in that period for the provision of videos by that service; and
c
which in any other way arise from the provision of that service.
5
For the purposes of subsection (4), “connected” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act.
6
A financial penalty imposed under this section must be paid into the appropriate Consolidated Fund.
7
For the purposes of subsections (3) and (6)—
a
the amount of a person’s qualifying revenue for an accounting period, or
b
the amount of any payment to be made into the appropriate Consolidated Fund by any person in respect of any such revenue,
is, in the event of a disagreement between the appropriate regulatory authority and that person, the amount determined by the appropriate regulatory authority.
8
The references in this section to the payment of an amount into the appropriate Consolidated Fund—
a
in the case of an amount received in respect of matters appearing to OFCOM to have no connection with Northern Ireland, is a reference to the payment of the amount into the Consolidated Fund of the United Kingdom;
b
in the case of an amount received in respect of matters appearing to OFCOM to have a connection with Northern Ireland but no connection with the rest of the United Kingdom, is a reference to the payment of the amount into the Consolidated Fund of Northern Ireland; and
c
in any other case, is a reference to the payment of the amount, in such proportions as OFCOM consider appropriate, into each of those Funds.
Pt. 4B inserted (1.11.2020 for specified purposes, 6.4.2021 in so far as not already in force) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(3)(b), 47 (with Pt. 7)