Using YouTube

Many government websites are using video on their sites as a method of communication. YouTube is attractive to government because of its ease of use, its cost effectiveness and its ability to reach an established audience. Users can either elect to use YouTube’s own website as the destination place for their video (providing links to it from their own websites) or they can use YouTube’s embedded video player to embed a YouTube branded ‘skin’ on their own website which plays their nominated video.

Many Government departments and agencies already piloting the use of YouTube have identified that YouTube has many limitations and the ‘Terms of Use’ (YouTube) have implications for government that agencies should consider in assessing the use of this service.

Agencies should determine for themselves the appropriate level of risk they are prepared to take in respect to the video content, its proposed distribution strategy and the intended target audience. Consideration should be given to the following issues:

  • YouTube reserves it right to interrupt, modify or discontinue aspects of its services. YouTube’s potential unreliability may have ramifications for the stability of government web pages when using embedded YouTube players.

Some Australian government departments using YouTube have found this to be a limitation as on occasion, they have been unable to effectively upload and release their videos at appointed times in Australia, due to scheduled outages and maintenance (occurring overnight in the US, but within the Australian working day). For agencies considering the use of ‘timed’ release of content, to coordinate with the launch of a program for example, this is a significant limitation.

Embedded YouTube players incorporate prominent YouTube branding and link to the YouTube website, of which the removal is prohibited. The issue for Government is an implied endorsement of a commercial third party and potentially unfair competitive advantage.

This may or may not be an issue for agencies, depending on the content, but agencies should consider the use of a disclaimer (more info below).

  • Embedded YouTube players include links to and advertising of other videos at the conclusion of each video's content, this 'banner' of content represents advertising on the part of YouTube and cannot be controlled or removed and it may include irrelevant, inappropriate and potentially offensive video clips.

As agencies have no control over the trailer videos that are advertised, this should be considered in terms of risk. For example a video espousing a particular public health issue may be followed by a spoof video with a contrary message. Trailer videos are served to users based on similar keyword ‘tags’ used to describe the video. Lessons so far from other government agencies indicate this is sometimes not helpful and can result in contrary messages or unrelated content on the same page.

YouTube use a system of promoting ‘related’ videos and ‘promoted’ videos on the page that contains an agencies uploaded video (where videos are uploaded to the YouTube site as opposed to the YouTube player being embedded onto the government website). These related videos are also presented on the basis of related keywords. For example, a campaign targeted at youth on the topic of binge drinking might include the ‘tags’ of ‘teenage’ and ‘drinking’ and ‘nightmare’.

Performing a search on videos with these ‘tags’ will expose a number of related videos that potentially present a message contrary to the message the government wishes to convey. In an agencies assessment of the appropriateness of using YouTube, agencies should check their video descriptor ‘tags’ against the search in YouTube to help assist in determining the level of risk associated trailers might pose in relation to the government message.

  • By submitting a YouTube video government automatically grants a broad licence to YouTube and YouTube users to reproduce, distribute and prepare derivative works of and display the video. YouTube can use any submitted video in anyway whether commercial or non-commercial.

This condition poses a risk for government agencies and should be considered in the context of the business benefit anticipated from the use of YouTube. There are lots of spoof videos on YouTube and governments and politicians are not exempt.

  • YouTube licenses do not automatically terminate once a video is removed - licences remain for a 'commercially reasonable amount of time'.

Extra caution should be exercised when IP issues are evident. For third party IP any copyright owners must give permission to grant the YouTube licence and once granted it may extend to whatever is deemed ‘commercially reasonable’. Additional information on IP is included below.

  • YouTube embedded players do not meet mandatory standards for Accessibility (i.e. no transcripts, subtitles etc).

Accessibility issues are a prime consideration in the use of multimedia content on government websites. This is a significant issue for all agencies and is an intractable problem. Agencies should consider a risk based decision in respect to their target audience and the accessibility requirements of that audience. There is contention around the issues of responsibility with the use of YouTube as a video communication channel. It is not clear if accessibility is the responsibility of YouTube or the content owner, however if the information is clearly originating with the government, agencies should consider their own legislative obligations in making the material accessible and non-discriminatory.

Videos may be able to be provided online without the use of an embedded player. See the National Apology to the Stolen Generations Video (australia.gov.au) as an example. Some government agencies are using open source embedded video players, under their own control, that allow for scrolling transcripts and a range of accessibility functions.

Terms and Conditions of Use

The Terms of Use are heavily in favour of YouTube. They purport to deny or heavily limit their liability to the user, and generally require the user of the site to indemnify the provider against any loss or damage arising out of their use of the site or service. Dispute resolution clauses specify the U.S. as the relevant jurisdiction for resolving any disputes. Acceptance of the Terms of Use by the user forms a legally binding agreement.

It should be noted though that these are not dissimilar terms to those offered by most private organisations, but the issue should be considered by agencies in their assessment of the use of YouTube. Some Australian Government agencies have been successful in negotiating a more favourable set of terms with YouTube. Agencies should seek their own legal advice in relation to these issues.

Privacy

The Privacy Statement on YouTube does not generally comply with the Information Privacy Principles (IPP’s). Agencies however, must comply with the IPPs and therefore cannot modify their privacy statements to mirror those on commercial websites without being in breach of their legislative obligations. It may be necessary, if a commercial service is used, to warn or notify users when they are leaving the agency site to go onto the commercial site, and contain in that notification the advice that the level of protection regarding privacy and associated matters may not be as great. This might protect agencies to some extent, but may not be ideal in terms of fostering community engagement, if that is the proposed intention.

Intellectual Property

Posting content on a commercial website and embedding content on an agency site

The Intellectual Property (IP) of the Commonwealth is an asset and is required to be managed and reported on in accordance with the Intellectual Property Principles for Australian Government Agencies . If agencies post content on a commercial website they should ensure they have the right to do so, i.e. that it was the owner or licensee of the material. Further, agencies should consider the IP requirements of the owner of the site. For example, if material were to posted to YouTube using their current Terms of Use, then the agency would be licensing the provider to do what would normally be infringing acts like copying, redistributing or adapting the material. According to the YouTube Terms of use, agencies loose control of their content once it is posted.

Many agencies are successfully using YouTube and some have negotiated their own YouTube channel. However, they have found additional issues around the use of their content especially if the video content used actors that were contracted under advertising guidelines for a certain media that has been extended into video on the internet. Permissions must be sought from actors and people appearing in the videos to be broadcast on video sharing websites.

YouTube banners / advertising & trailers

Another issue agencies should consider is the brand ‘YouTube’ is used in their embedded video player and all over the YouTube website itself. There is an issue that relates to what might appear to be Government endorsement of a particular service or website because of the branding that is automatically affixed to downloads or content from that site.

It may be appropriate to provide a prominent link to a disclaimer which clearly stated that no endorsement of YouTube was to be construed from the branding. An example of a disclaimer in a similar vein to this can be found on the ComLaw site following the instructions for downloading legislation in the various formats in which it is offered - Disclaimer: The compatible application(s) listed above are examples only. The Attorney General's Department does not endorse any particular software developer or specific application.

Additional information

Government agencies need to be exemplars in the use of these technologies and it is possible to use video material on Government websites (outside commercial sites) but agencies should consider the cost implications, business case and associated risks.

Some examples of the use of technologies by Government are:

YouTube channels:

Embedded YouTube player:

Other online videos:

Other embedded players