Will the European Union allow politicians to use your personal data for political advertising?

A leak by POLITICO revealed that the European Commission presented three scenarios on how the Political ads regulation will impact the processing of special categories of personal data such as sexual orientation, religion or mental health.

By EDRi · May 31, 2023

Negotiations of the Regulation on transparency and targeting of political advertising are ending and there is no good news. A leak by POLITICO revealed that the European Commission presented three scenarios on how this regulation will impact the processing of special categories of personal data such as sexual orientation, religion or mental health. The Commission’s document creates a misleading dilemma between the use of sensitive data in online political advertisements versus ensuring an open online debate. Based on the Commission both are not possible. This stand aims that political parties may use our sensitive personal data to make political propaganda. Of course, this stands loses the point of the new law: protecting digital rights and the integrity of the political debate. 

Where is the political discussion taking place?   

As mentioned here, the political discussion is in the final stage, in the so-called “trilogues”. This stage consists in inter-institutional negotiations that involve the European Parliament, the Council of the European Union and the European Commission. Amongst the three institutions, they will propose a final text to be voted in a Plenary session in the Parliament. On 5 June*, the fourth and (potentially) last negotiation is scheduled. So far, negotiations are running slow due to a political block concerning the use of special categories of personal data to present online political advertisements.

If the negotiations fail to achieve a successful outcome within the next trilogue, the Swedish presidency will pass the lead to Spain, which is next in line for the presidency. This scenario may change the political discussion because Spain is one of the countries that signed a joint statement calling for a ban on the use of special categories of personal data in the context of the targeting and amplification of political advertising. 

So, the negotiations are seeking to protect our rights, right? Right?!

The main conflict amongst institutions is whether political actors may use special categories of personal data for targeting and ad-delivery techniques in online political advertising. On one side of the debate, both the Commission and Council positions allow the processing of sensitive data on the basis of consent and for the purposes of contacting the members and former members of political parties. On the contrary, the European Parliament stands for limited use of personal data in accordance with the DSA Regulation. 

The Commission and Council claim that targeted online political ads provide “access to the democratic debate” and “respect self-determination and freedom of expression”. However, this approach should be taken with a pinch of salt. One of the main (and original) reasons for this regulation was how tailored messages may exploit sensibilities and fragment the political debate. Micro-targeting techniques have the downside of reinforcing biases and limiting people to explore other political perspectives. This might impact voting behaviour, the right to make reasonable political decisions and notably the freedom to receive information. The Commission is well aware of this as in its original proposal, it stated that targeting political messages “has a specific and detrimental effect on citizens’ fundamental rights and freedom with regard to the processing of their personal data and freedom to receive objective information”. 

Why should a political actor have access to our sexual orientation on behalf of democracy? Why political parties should know my health condition to make political campaigns? Why would politicians want to target citizens based on their religion? 

To genuinely safeguard both data protection rights and the integrity of political elections, the Regulation should prohibit the use of special categories of sensitive data in the context of political online advertising.

The Council and Commission argue that this regulation should be in line with the General Data Protection Regulation (GDPR), therefore, consent should be enough to protect citizens from micro-targeting techniques. Nevertheless, the systematic use of dark patterns to obtain consent, the unclear terms and conditions in online platforms and the lack of proper GDPR enforcement are enough reasons to believe that consent is not a great safeguard to protect citizens from digital platforms and politicians exploiting their sensitive data in political advertisement contexts.

Respect for data protection and the DSA Regulation 

The main goal of this regulation is the integrity of elections and to avoid scandals like Cambridge Analytica. In order to achieve this, the Regulation should follow the reasoning adopted by the DSA and phase-out processing special categories of personal data in both targeting and ad-delivery techniques. 

Ad-tech industry has shown how easily is possible to solve privacy challenges by introducing other techniques (e.g. contextual targeting or approximate location targeting) to reveal relevant information for citizens and elections, such as location, language or age. By embracing a strong regulatory framework, we can foster a safer online political environment for the next European elections. 

* Although the trilogue is scheduled, it is not confirmed that this meeting will take place.

Sebastian Becker

Policy Advisor

Twitter: @sebabecks