Political Advertising: Three Key Points for EU Negotiators
EU lawmakers are about to start final negotiations on the new EU rules on transparency and targeting of political advertising (TTPA). If done right, the new law could enhance the transparency of political ads and address legitimate concerns about foreign interference in democratic processes across the EU – such as elections for the next European Parliament – while allowing political advertising as a tool to continue promoting pluralism and freedom of expression. To make this happen, however, the negotiators representing the main EU institutions need to get three things right.
1.) Clarify definitions and scope of the legislation
Setting clear definitions for “political advertising” and “political advertising service” is key to ensure effective implementation of the rules once they are agreed, yet those important definitions still lack clarity right now. The TTPA legislation should achieve two goals in this regard.
First, clearer definitions are needed to protect public participation in important societal and civic discussions. The new Regulation should only apply to those messages that are effectively designed and liable to influence an election or referendum. For example, having to work with vague concepts such as “public opinion on societal or controversial issues” will make it difficult for providers of advertising services to focus on messages that are actually designed to have influence on the political process. Messages promoting the exercise of the democratic right to vote and participate in elections or referendums should also be removed from the Regulation’s scope.
Second, the scope and definitions of the TTPA rules should be limited to political advertising services, and not capture messages organically posted by individuals. The current wording risks inadvertently capturing non-sponsored messages from civil society, the personal opinions and views of people, or protected political speech. This could ultimately undermine freedom of expression and disincentivise users from participating in discussions of societal importance.
2.) Align provisions for data use with existing framework
The European Union already has a strong legislative framework in place that governs the processing of personal data. This is set out in the General Data Protection Regulation (GDPR), which has recently been complemented by the Digital Services Act (DSA). Under the DSA, for example, online platforms cannot present advertisements to users based on profiling using sensitive categories of data (such as racial or ethnic origin, sexual orientation, religion) nor using personal data of known minors.
Lawmakers have suggested putting limitations on the use of personal data for the targeting and amplification of political advertising, but this risks making political ads ineffective and less relevant, while also increasing costs for the advertiser (as ads would have to be delivered almost randomly to a large group of people in order to reach the intended audience). It is a fact that political messages are part of the public discourse and our everyday lives. That is why the Regulation should focus on increasing the transparency of political messages that are being shown, rather than introducing opt-in requirements.
Maintaining coherence with the existing EU legislative framework on consent and data processing, as well as allowing users to better understand how and why they are being targeted, will ensure that those who are actively engaged in electoral processes can participate and receive an appropriate amount of (relevant) information.
3.) Limit turnaround times to notices by trustworthy experts
It is important that users are empowered to flag content they deem noncompliant, including political ads. Yet, this provision in the TTPA Regulation should strike a better balance between protecting the freedom of speech and the need for swift removal of content that effectively infringes the rules.
Requiring strict turnaround times for service providers to act on notifications filed by any user could lead to over-removal of content, especially if platforms need to meet a strict 48-hour deadline and don’t get enough time to properly investigate a notification. I think we can all agree that heightened scrutiny is required right before and after an election.
At the same time, EU negotiators need to remain vigilant about the unintended consequences that this obligation may bring. For instance, malicious actors could abuse this provision by massively reporting the political ads of their opponents with the aim of suppressing opposition voices.
If required at all, the 48-hour turnaround time should at least be strictly limited to notices filed by identified competent authorities or trusted flaggers, following the example of the notice and action mechanism introduced by the DSA.
As negotiators discuss how to finalise the new EU rules on political advertising, these three key issues need to be addressed in order to ensure that political advertising can continue to play its important role in promoting pluralism and civic engagement in Europe.