Political negotiations continue: EU lawmakers fail to agree on strong rules for regulating political advertising

The policymakers of the European Union (EU) have failed to agree when it comes to the prohibition of processing sensitive data in the context of political advertising and the scope of the regulation. Another meeting is expected on 6 November, so let’s unpack what’s so problematic about the current arguments.

“Consent” won’t stop microtargeting

It seems that policymakers cannot decide if they should allow the use of special categories of personal data in online political advertisements. For example, on the one hand, the Council of the EU proposed to prohibit profiling that uses special categories of personal data, in line with the Digital Services Act (DSA). But, on the other hand, the Council has also suggested permitting the processing of personal data only if the data was collected with explicit consent, in line with the General Data Protection Regulation (GDPR).

This position is substantially the same as the one discussed during the last political trilogues and does not offer any specific legal safeguards for people’s human rights when we speak about political advertising online. This can explain the lack of agreement during the last trilogue meeting.

One of the main criticisms is that the scope to only “prohibit profiling using of special categories” is too narrow and does not tackle the real problem here: how micro-targeting techniques exploit sensibilities and are used to run online campaigns to manipulate citizens. 

As academic and civil society research and campaigns have made clear, targeting people with messages based on sensitive data on their tracked behaviour and perceived traits threatens privacy, free expression, and freedom from discrimination. It can also undermine the right to freely form an opinion which can have a serious negative impact on election integrity; such tactics should have no place in democratic society.

Online advertising methods take advantage of analytical technologies such as machine learning, artificial intelligence or natural language processing models to interpret and infer the most sensitive aspects of people’s lives. On top of that, the current proposal does not prevent online intermediaries from obtaining manipulated consent by using dark patterns. 

The EU policymakers must do better. They should put forward updated and comprehensive legislation with stricter legal safeguards. For this to happen they should go beyond the “explicit consent” argument and ensure that citizens are well protected against the sophisticated political manipulation techniques in online contexts.

A one-size-fits-all approach to regulating political advertising won’t make the cut

The scope of the regulation is the second key point that EU policymakers have not been able to agree on. In particular, we have seen a lack of consensus on how “political advertising” and “political advertising campaigns” should be defined. These definitions will set what activities will fall into this regulation and who will have to comply with these rules. 

The Council’s intention to include in the definition campaign actions that are non-paid and come from individuals or groups, in an attempt to counter disinformation campaigns and foreign interference during elections, was not approved by the other institutions. 

As highlighted by EDRi and its allies it’s essential to protect online political speech through a regulation that solely encompasses paid or sponsored political content. Otherwise, as ARTICLE 19 stated, the current definitions on the negotiation table could carry “potential implications for the freedom of expression of civil society organisations as well user generating unpaid political content”. In other words, it could refrain these actors from using online space to spread their political messages. 

This regulation seeks to regulate “transparency” and “targeting” of political advertising. As the European Commission says in its explanatory memorandum, this regulation “does not address other issues related to political advertising beyond transparency and the use of targeting techniques”. Therefore, EU policymakers should stop trying to put disinformation and foreign interference under the scope of this regulation. For example, the Digital Services Act and the Code of Practice on Disinformation are better legal tools to counter these issues. 

During the last meeting, EU policymakers listened to civil society’s recommendation to limit the scope to advertising that “normally provided for remuneration”. 

What was also discussed without reaching a consensus were the “in-house activities” to address how online platforms target both politicians and citizens to influence regulatory processes. 

What’s next?

For the sixth trilogues meeting, the negotiators are expected to find an agreement. The original proposal sought to enter this regulation into force from 1 April 2023, to ensure a fair and democratic process during the next Parliamentarian elections in 2024. 

Given the current deadlocks, it is unlikely that the regulation proposal will be adopted and enforced in time, in a form that guarantees strong protections for people and our democracies.