Not everything is allowed in politics: Upcoming political advertising legislation must introduce limits

In November 2021, the European Commission launched a proposal for a regulation on the transparency and targeting of political advertising. The document will place harmonised rules for more transparency of political advertising to facilitate the sector’s internal market.

Now, it is the European Parliament’s turn, specifically the IMCO (Internal Market and Consumer Protection) Committee to lead the legislative process. The Member of the European Parliament (MEP) from the French liberal Renew group – Sandro Gozi – will be the rapporteur. The discussions started in January 2022 and the aim is that this new set of rules will be implemented by spring 2023.

Why political ads? Are we not discussing ads already in the DSA?

This regulation is part of the European Democracy Action Plan and it is being discussed in parallel with the Digital Services Act (DSA). The political ads legislation, initially planned as a legislation on disinformation more generally, was under discussion during 2021. In December 2021, EDRi, Access Now and Liberties published a joint report suggesting a comprehensive analysis and concrete suggestions on how to tackle disinformation and regulate political advertising.

The DSA will act as a horizontal (and general application) legislation to define responsibilities and obligations of digital services while the regulation on political ads will apply vertically and specifically for online political advertising. Even though the specificity of the issues regarding political ads is clear, it is unclear whether particular rules are in fact needed. The DSA was an excellent opportunity to regulate political ads and avoid multiplicity of legal frameworks regulating online content. The European Commission argues that the digital transformation of democracy has created new threats to maintaining the integrity of elections and free democratic processes. For example, some of these problems include manipulation, fragmentation of public debate and disinformation.

Big Tech platforms’ business models have played a crucial role in amplifying these vulnerabilities. Through the collection, extraction and misuse of people’s personal data, microtargeting is used to reach voters with tailored messages to exploit their sensitivities and fragment the political public debate. This has not only had an impact on electoral processes but also on people’s fundamental rights, notably freedom of expression, right to make political decisions, and voting rights.

Transparency is the core of this regulation as the proposal rightfully points out that specific limits are needed to reduce the scope of problematic targeting tactics. The objective is that people could easily distinguish when they are being shown paid political content. Under this framework, the paid political advertising should be labelled as such and provide basic information about the identity of the sponsor, dissemination period, amount spent, links to an election, source of the funds used and other information useful to achieve the fairness of the dissemination of the political ads. The text suggests that these rules only apply to political advertising services and should not apply to the sharing of information through electronic communication services (e.g. Whatsapp, Telegram or Signal).

Another consideration of the proposal is the prohibition of processing sensitive personal data in the context of political advertising. At a first glance, this would impede sponsors to use microtargeting and amplification techniques. However, this is only allowed when a data subject gives “explicit consent” or the targeting and/or the amplification techniques are being used in the course of their legitimate activities by a not-for-profit body with a political, philosophical or religious aim, as the General Data Protection Regulation (GDPR) rules.

So, all good? Not really

The proposal of improving transparency levels is welcomed but, in its current form, it cannot efficiently address the problems that the regulation aims to solve. One of the main discussions in the DSA is the use of sensitive data in the context of online advertising. Civil society groups and the European Data protection supervisor have advocated for a full ban on microtargeting for political purposes and more generally to phase out surveillance-based advertising. Due to complex and opaque algorithms, the idea to fulfil sufficient and meaningful informed consent is a chimaera. The systematic use of dark patterns, unclear consent agreements, misleading information, insufficient time to read terms and conditions, among others are the common practices that prevent people from having clear information and control in the context of the surveillance-based online advertising industry.

In a nutshell, it is necessary to change the surveillance-based advertising business model. This includes phasing out advertising based on tracking and targeting people for political purposes. Contextual information and/or personalised information based on preferences should be sufficient to spread political messages. Meaningful transparency on content-recommender models will ensure public scrutiny on how the political debate is being shaped. This proposal is yet another opportunity to put human rights before Big Tech’s business interests.