A proposal for a new European Union regulation that would harmonise rules at member State level regarding transparency of political advertising is currently in the final phases of discussion. Joan Barata, a Senior Legal Fellow at Justitia Future of Free Speech project, discusses here the concerns that the proposed regulation poses for freedom of expression.

The new proposal on the block

The proposal for a Regulation on the transparency and targeting of political advertising was published by the European Commission in 2021. After being considered by the European Council and the European Parliament, the proposal has reached the trilogue phase of the legislative process. This final phase consists of political negotiations to agree on controversial aspects of any legislative proposal among the three aforementioned institutions. This is by far the most opaque phase of the process, although this is also where the most sensitive issues are taken into consideration and compromises are made. It is therefore important for experts, civil society and other organizations to continue raising concerns about certain provisions included in the proposal at this stage.

The regulation of advertising by political parties and similar actors, particularly during election periods, has usually been the object of national legislation in EU member states. However, the proposal now under scrutiny is based on the emergence of important new factors, including the increased dissemination of political advertising online, the increasingly sophisticated and intense interference by foreign actors, the frequent use of targeting and amplification techniques based on processing of personal data, and the existing national restrictions on cross-border provisions of political advertising services.

It is important to note that the proposal would in principle have a relatively limited scope, framing existing member states’ legislation by establishing harmonized rules on the provision of political advertising services, and on transparency and due diligence for sponsors and providers of political advertising services, as well as on the use of targeting and ad delivery techniques in connection with political advertising.

Problematic definitions: political advertising vs political speech

A key element underpinning the EU approach to this area is the identification of political advertising as a service (thus an economic activity in the sense of general EU law) consisting of the preparation, placement, promotion, publication, delivery, or dissemination, by any means, of political messages. The proposal also defines the role of political advertising publishers as providers of political advertising services that place, promote, publish, deliver, or disseminate political advertising through any medium (article 2).

What is particularly problematic is the proposal’s definition of political advertising itself, particularly from the point of view of its implications in terms of restricting a particularly protected area of freedom of expression which is the dissemination of political discourses or “political speech”.

The proposal identifies two types of political advertising (article 2):

• Firstly, political advertising services provided by, for, or on behalf of, a political actor. Political actors include, according to the text, political parties, political alliances, candidates for elected offices, as well as natural or legal persons representing or acting on behalf of any of the mentioned persons or organizations and promoting their political objectives. In some cases it might be challenging to determine whether a certain organization, and particularly an individual, are actually representing or acting on behalf of a political actor within the context of the dissemination of political messages. For example, would an advertisement by a publishing house of a book written by a political candidate, presenting his or her ideas and projects, be considered as political advertising?
• Secondly, article 2 of the proposal encompasses an alternative definition of political advertising referring to the provision of the mentioned services for the purpose of disseminating a political message “liable to influence voting behavior or the outcome of an election, referendum, or a legislative or regulatory process”. This is particularly problematic, since it subjects certain forms of dissemination of political speech to tight constraints within the context of the Regulation, as well as opening the door for further limitations at the national level.

Political speech is important for democracy, as outlined in a recent report by the Council of Europe. More generally, the European Court of Human Rights (ECtHR) has emphasized that under article 10.2 of the European Convention on Human Rights there is little scope for restrictions on political speech or on the debate on matters of public interest. Some provisions included in the Regulation may lead to the imposition of specific restrictions to certain manifestations of political speech, contravening regional and international human rights standards.

Political advertising, particularly during election periods and via traditional media formats, has been subject to certain legal and regulatory limitations (and in some cases, restrictions) in many member States. Some of these limitations have received the avail of the ECtHR, although based on specific circumstances and conditions, particularly the proven necessity to protect the democratic debate and process from distortion by powerful financial groups with advantageous access to influential media. The Court has also declared the legitimacy of limits to the dissemination of  paid political messages when they focus on a specific type of communication (broadcasting), since other possible supports and media to host paid advertising remain available and legally possible. In other words, restrictions to the paid dissemination of political messages would in principle only meet the necessity and proportionality tests in cases where they apply to particularly influential media and where such dissemination requires access to significant wealth.

In the proposed Regulation, limits and conditions to political advertising will apply in a blanket manner to all types of media and platforms. Moreover, it is almost impossible to safely differentiate and exclude from the mentioned broad category of political advertising the promotion of any legitimate public message on matters of public interest, which should constitute the least restricted category of speech. Most (if not all) non-commercial campaigns on matters of public interest (abortion, protection of animals, consumption of healthy or locally produced goods, respect for certain rights, values and civility principles…), promoted with or without direct remuneration by NGOs, foundations, non-profits, individuals or even commercial companies, and using any medium or support, have the potential to be connected with political debates in the course of an election campaign, or with existing, debated or advocated legal and regulatory rules.

To make things even more complicated, the amendments adopted by the European Parliament add a new Recital 17a, which contemplates the possibility of considering certain forms of commercial advertising as political advertising, since “company actions in the field of corporate social responsibility, delivering social impact, or any other types of purpose-driven engagement” may also “be liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour”.

In addition to the above, it is also necessary to note that the proposal does not clearly identify the need for an agreed remuneration in order for a message to be considered as political advertising. This means that there is room to interpret that messages merely disseminated on behalf of a political actor might qualify as political advertising and therefore be subjected to the conditions and restrictions included in the proposal.

Restrictive legal regime

Regarding the legal regime applicable to political advertising services, article 7 imposes a series of obligations on political advertising publishers, in order to ensure that every political advertisement clearly explains that it is political advertising, the identity of the sponsor, the use of targeting or amplification, and the wider context of the advertisement. In practice, if the political nature of the message or any other relevant information provided is unclear or not properly justified by the sponsor, the publisher (again, a social media platform like Twitter, Facebook, Instagram or TikTok, for instance) will be legally compelled “to not make available or (…) discontinue the publication or dissemination” of the message.

In addition to this, according to article 9, political advertising publishers must put in place mechanisms for third-party reporting of the dissemination of illegal advertising that does not fulfill the legal requirements. Political advertising publishers “shall examine and address the notification in timely, diligent and objective manner”. During the month preceding an election or a referendum, notifications of reports must be addressed within 48 hours in the case of very large online platforms.

Provisions on supervision and enforcement included in Chapter IV of the proposal gives competent authorities the power to “order an end” to possible infringements (article 15.5), “impose remedies that are proportionate to the infringement and necessary to bring it effectively to an end”, and “impose administrative fines and financial penalties, including periodic penalty payments”. According to article 16, sanctions shall amount to a maximum 4% of the annual income or budget of the sponsor or of the provider of political advertising services, or 4% of the annual worldwide turnover of the sponsor or the provider of political advertising services in the preceding financial year.

Conclusions

Regarding the dissemination of political messages through social media platforms, the proposed Regulation provides cause for concern for freedom of expression for several reasons:

• Firstly, it grants these providers the power and responsibility to determine whether a certain publication fits the complex and ambiguous definition of political advertising established in the Regulation. Errors or disagreements with relevant authorities in this area may trigger the imposition of significant financial sanctions.
• Secondly, online platforms are also granted the authority and even the obligation to eliminate content in case they conclude that a certain promoted message constitutes political advertising and the sponsor or provider of advertising service refuses to cooperate, not providing relevant information. These measures can also be imposed on platforms by competent authorities and lack of proactive or requested adoption may also entail suffering the mentioned penalties.
• Thirdly, online platforms also face the responsibility to properly and diligently (in some cases, within 48 hours) assess third-party reports.

During election periods malicious actors may precisely use such tools to affect the development of campaigns, and force platforms to adopt extremely sensitive and complicated decisions regarding messages posted in a potentially significant number of different languages, and connected to specific national, regional, and local contexts.

This article represents the views of the author and not the position of the Media@LSE blog, nor of the London School of Economics and Political Science.