Building on experience gained in the 2019 European parliamentary elections and delivering on the priorities announced in the European Democracy Action Plan and the 2020 EU Citizenship Report, the European Commission presented on 25 November a number of initiatives to reinforce democracy and integrity of elections.
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This includes proposal for a Regulation on transparency of political advertising, to update the Regulation on the statute and funding of the European political parties and European political foundations and two proposals updating the Directives on the electoral rights of “mobile EU citizens”.
Political Advertising
1. Why is the Commission proposing a legislation on political adverts?
Political advertising is increasingly used in Europe, including across borders. Currently it is regulated by EU Member States with a specific focus on traditional media (television, newspaper), and serious gaps and loopholes exist. The fragmented legal framework creates costs for service providers and acts as a disincentive to the provision of political advertising services across borders.
As a result, it is not always easy for people to recognise whether they are looking at a political ad, especially when such ad appears online. This means that citizens cannot fully exercise their democratic rights and national authorities monitor the correct application of the rules.
Moreover, high standards of transparency of political advertising support accountability of those behind such advertisements and the right for citizens to be informed in an objective, transparent and pluralistic way.
Finally, personal data is also used to target and amplify political advertising, which can create negative effects on citizens’ rights including their freedoms of opinion and of information, to make political decisions and exercise their voting rights.
2. How do you define ‘political advertising’? How will the political nature of the advertisement be determined?
‘Political advertising’ means the preparation, placement, promotion, publication or dissemination by any means, of a message:
- by, for or on behalf of a political actor, unless it is of a purely private or a purely commercial nature; or
- which is liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour.
Since advertisements by, for or on behalf of a political actor cannot be detached from their activity in their role as political actor, they will be presumed to be liable to influence the political debate, except for messages of purely private or purely commercial nature.
To determine whether a message is liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour, account should be taken of all relevant factors such as the content of the message, the language used to convey the message, the context in which the message is conveyed, the objective of the message and the means by which the message is published or disseminated.
Providers of advertising services will have to request sponsors (and providers of advertising services acting on behalf of sponsors) to declare whether the advertising service they request constitutes a political advertising service.
3. How will people know they are looking at a political ad and why?
This initiative aims to set high standards of transparency of paid political advertising services, and to strengthen the protection of fundamental rights of citizens.
This means that with every political advertisement people will hear or see:
- a statement that the advertisement is political;
- the identity of the sponsor of the political advertisement, including any the entity ultimately controlling the sponsor;
- a transparency notice or a clear indication of where it can be easily retrieved.
The transparency notice is an important element as it will include information, which will allow people to understand the wider context of the political advertisement and its aims. It will include:
- the identity of the sponsor and contact details;
- the period during which the political advertisement is intended to be published and disseminated;
- information on the aggregated amounts spent or other benefits received in part or full exchange for the preparation, placement, promotion, publication and dissemination of the relevant advertisement, and of the political advertising campaign where relevant, and their sources;
- where applicable, an indication of elections or referendums with which the advertisement is linked;
- where applicable, links to online repositories of advertisements;
- information on the mechanism for citizens to indicate political advertising which may not comply with the Regulation;
- where applicable, information about how the advertising is targeted and amplified.
4. Will targeting people with political ads be banned?
No, not in general. However, political targeting and amplification techniques using or inferring from sensitive personal data (as defined under GDPR) will be banned unless a person explicitly consents to it. Sensitive personal data reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, as well as genetic, biometric and health data or information concerning a person’s sex life or sexual orientation.
Targeting could also be allowed in the context of political advertising of the legitimate activities of organisations with a political, philosophical, religious or trade union aim when for instance it targets their own members.
Anyone making use of political targeting and amplification involving the processing of personal data will also need to:
- adopt and implement an internal policy on the use of such techniques;
- keep records of the techniques used and sources of personal information;
- provide the targeted person with additional information concerning the targeting or amplification, including:
- the specific groups targeted,
- the parameters used to determine the recipients to whom the advertising is disseminated (with the same level of detail as used for the targeting),
- the categories of personal data used for the targeting and amplification,
- the targeting and amplification goals, mechanisms and logic including the inclusion and exclusion parameters and the reasons for choosing these parameters,
- the period of dissemination, the number of individuals to whom the advertisement is disseminated and indications of the size of the targeted audience within the relevant electorate,
- the source of the personal data use, including, where applicable, information that the personal data was derived, inferred, or obtained from a third party and its identity as well as a link to the data protection notice of that third party for the processing at stake;
- a link to effective means to support individuals’ exercise of their rights under EU data protection rules.
Publishers of political adverts will need to ensure that this additional information about the targeting of political advertising they publish is included in the transparency notices they make available with the political advertisement.
5. What are the (new) obligations for platforms, media publishers, advertising agencies, etc. proposed in this Regulation?
The proposed Regulation lays down rules for all the actors in the advertising value chain, both online and offline. Each of these players will need to play their part to ensure that the right level of transparency and accountability is set in the EU for political advertising and that individuals are well equipped to understand political ads when they see them.
All political advertising services, from ad tech that intermediate the placement of ads, to consultancies and advertising agencies producing the advertising campaigns, will have to retain the information they have access to through the provision of their service about the ad, the sponsor and the dissemination of the ad. They will have to transfer this information to the publisher of the political ad this can be the website or app where the ad is seen by an individual, a newspaper, a TV broadcaster, a radio station, etc. The publisher will need to make the information available to the individual who sees the ad.
Political advertising publishers have to publish the following for each political advertisement in a clear and unambiguous way:
- a clear statement to the effect that it is a political advertisement;
- the identity of the sponsor of the political advertisement and the entity ultimately controlling the sponsor; and
- a transparency notice explaining the wider context of the political advertisement and its aims, or a clear indication of where it can be easily retrieved.
Political advertising publishers should use efficient and prominent marking and labelling that allow the political advertisement to be easily identified as such and should ensure that the marking or labelling remains in place in case a political advertisement is further disseminated.
6. Does the proposed Regulation cover only companies or also political parties and foundations?
The requirements on transparency, aimed to contribute to the good functioning of the internal market, have a different scope of addressee to the requirements concerning targeting and amplification, which protect individual rights.
The requirements concerning the transparency of political advertising proposed by the new Regulation apply to the entire production chain of advertisement whether a PR company, data broker or an online platform. The Regulation does not require disclosure of private communications and the rules are without prejudice to the ePrivacy legal framework.
The requirements on targeting and amplification apply to anyone who targets or amplifies political advertising using personal data. This would cover in many instances service providers, but also other actors like political parties.
7. With this initiative, what will political ads look like for citizens?
Transparency of political advertising will help people understand when they see a paid political advertisement. With the proposed rules, every political advertisement whether on Twitter, Facebook or any other online platform will have to be clearly marked as political advertisement as well as include the identity of the sponsor and a transparency notice with the wider context of the political advertisement and its aims, or a clear indication of where it can be easily retrieved.
8. What about political adverts that originate from outside the EU?
This initiative applies to all political advertising prepared, placed, published or disseminated in the European Union, or directed to individuals in one or several Member States, irrespective of where the advertising services provider is based, and irrespective of the means used. Moreover, organisations which provide political advertising services in the European Union which do not have a physical presence here will have to designate a legal representative in one of the Member States where the services are offered. This will ensure more transparency and accountability of services providers acting from outside the Union.
9. How does this proposal complement the rules in the Digital Services Act and the ongoing efforts under the Code of Practice against disinformation?
The Commission proposed the Digital Services Act (DSA) in December 2020 to ensure that online intermediaries and online platforms in particular are covered by one set of horizontal rules across the EU. The rules should empower and protect individuals and offer the best conditions in the single market for responsible services to develop. The DSA includes rules on content moderation, as well as specific obligations for the transparency and accountability of the advertising systems of online platforms. This includes any type of ads, from commercial communications to issues-based and political ads. Obligations cover a notice-and-action system for illegal ads, user-facing transparency, as well as a mandatory risk management process for very large online platforms, accompanied by public scrutiny through independent audits, ad repositories publicly accessible, and data & access for vetted researchers.
The political ads initiative builds on it and proposes general transparency obligations for all actors involved in the financing, preparation, placement and dissemination of political advertising, offline and online. It is both wider through its material scope covering online and offline ads, and narrower, covering only political ads.
It focuses on the specificities of political advertising and expands the categories of information to be disclosed.
The political ads proposal also aims at complementing and strengthening the self-regulatory, industry-led actions that the Code of Practice on Disinformation has pioneered. The proposal provides for regulatory obligations related to several commitments of the Code and the relevant expectations developed in the Commission Guidance on strengthening the Code of Practice on Disinformation.
10. Will this legislation restrict free speech or ban certain content?
No. Beyond the requirements for transparency and targeting, the initiative does not interfere with the substantive content of political messages.
Since advertisements by, for or on behalf of a political actor cannot be detached from their activity in their role as political actor, they can be presumed to be liable to influence the political debate, except for messages of purely private or purely commercial nature.
Also, in full respect of freedom of expression as protected by Article 11 of the Charter of Fundamental Rights, this Regulation should not apply to messages shared by individuals in their purely personal capacity.
The obligations under the proposed Regulation connected to political advertising are only engaged in connection to the processing of personal data, or if political advertising services are involved.
In particular, the transparency rules should only apply to political advertising services, i.e. political advertising that is normally provided for remuneration, which may include a benefit in kind. The transparency requirements should not apply to content uploaded by a user of an online intermediary service, such as an online platform, and disseminated by the online intermediary service without consideration for the placement, publication or dissemination for the specific message, unless the user has been remunerated by a third party for the political advertisement.
11. Who will ensure oversight of this law?
The use of personal data in political targeting and amplification will be monitored by the national Data Protection Authorities (DPAs).
For the other elements of the proposal, relating to the transparency rules, designated national authorities will monitor the compliance with the new rules. For digital services, these may be the same authorities responsible for the enforcement of the Digital Services Act and the regulatory coordination within the Member State of establishment and across Member States will be ensured through the Digital Services Coordinators designated for the DSA.
12. How can violations of the law be reported?
Political advertising publishers will have to put mechanisms in place to enable individuals to report, free of charge, to them that a particular political advertisement, does not comply with this Regulation. The mechanisms to report such advertisement should be user friendly and easy to access, including from the transparency notice.
The political advertising publisher should inform individuals of the follow-up after an ad has been reported.
Member States will also need to designate authorities to supervise the application of the regulation and enforce it.
13. Will there be fines?
When it comes to the breaches relating to the use of personal data in targeting and amplification techniques, the national data protection supervisory authorities will be able to impose fines in line with EU data protection rules.
For infringements of the transparency requirements applicable to political advertisings, Member States will need to lay down rules on effective, proportionate and dissuasive sanctions applicable to providers of political advertising services under their jurisdiction. The scale of such fines is to be determined by Member States.
Funding of European political parties and foundations
14. What is the role of European political parties and European political foundations?
European political parties are transnational political alliances that unite national and regional parties, as well as citizens, with the same ideological affinity. At present, ten European political parties and ten European political foundations are registered. Together with their affiliated foundations, European political parties fulfil an essential role in representative European democracy by creating a direct link between the citizens and the political system. Strong European political parties and foundations that can foster political debate across Europe are essential for creating a truly European public sphere.
15. Why is the Commission proposing to review the current rules?
Both European Parliament and Commission evaluated the application of current rules and found that, while their overall legal framework is fit for purpose, there are still a number of loopholes hindering European political parties and foundations from fully fulfilling their respective roles and tasks. Moreover, the recast of the Regulation will provide European political parties and foundations with a consolidated legal text taking into account all revisions to date.
16. What are the main changes introduced by the new rules?
The proposal aims to ensure financial viability of European political parties, while reinforcing the transparency requirements on their sources of funding. The proposal contains measures to cut administrative burden, to modulate the sanctioning regime, and to reinforce transparency on gender representation and compliance with EU fundamental values. It will also ensure that the new rules on transparency of political advertising also apply to the European political parties and foundations. Overall, the proposal will improve legal certainty for all actors concerned, including clarifying the cross-border nature of EUPPs activities, including campaigning.
17. What are the changes into funding regimes of European political parties and foundations? Is there enough safeguards to prevent from foreign interference?
There are certain changes, aimed at increasing their financial viability.
The Commission proposes to reduce the co-financing rate for European political parties from 10 to 5%, thereby aligning it with that of the European political foundations.
In addition, the legislative proposal envisages to lower the co-financing rate even further (to 0%) in the year of the elections to the European Parliament. This measure should help European political parties to increase the number and intensity of their campaign activities and, therefore, increase their visibility also at national level.
Apart from contributions from the EU budget, the current rules (Regulation 1141/2014) acknowledge only two categories of revenues for European political parties and foundations namely, contributions from members and donations; and the Commission proposes to amend the Regulation to create a third category of revenues (‘own resources’) allowing European political parties and foundations to broaden their revenue base. The proportion of own resources in the total budget of a European political party or foundations will be capped to mitigate the potential risk of interference.
As regards contributions from members, the legislative proposal also aims at allowing European political parties and foundations to collect contributions from their member parties and member organisations located outside the European Union but inside the Council of Europe. To limit the risk of foreign interference, contribution from outside the Union can only amount to 10% of overall contributions which, in turn, can only amount to 40% of the party’s annual budget. This cap, together with the requirement for European political parties and foundations to ensure that their member parties and member organisations outside the Union observe values that are equivalent to those of Article 2 TEU, should provide for the necessary safeguards as regards foreign funding.
Donations from outside the Union will continue to be forbidden while the transparency regime for donation from inside the Union will be reinforced. Notably, a ‘know your donor’ obligation (due diligence mechanism) will bind the European political parties and foundations to collect additional information for the identification of their donors so they know where the funding is coming from before they accept it. The Authority for European political parties and European political foundations will be granted the power to request such information directly from donors in case it has grounds to suspect irregularities.
Electoral rights of EU citizens who live in a different Member State
18. How many Europeans are “mobile” EU citizens i.e. live in a Member State that is not a Member State of their nationality?
On 1 January 2020, there were 13.5 million EU citizens who live in another EU country (“mobile EU citizens”). About 12 million of them have, according the TEU, right to vote in municipal elections and in the European Parliament elections in the country where they reside.
19. What are the main obstacles faced by those EU citizens in the context of their electoral rights?
EU citizens who live in a different Member State than their nationality have low awareness of their political rights and on how to exercise those rights. They often have insufficient access to information on election procedures, face burdensome registration procedures and language barriers. They might also be discouraged from registering in their Member State of residence for fear of losing their right to vote in their home Member State for other types of elections (de-registration practices). Consequently, they have lower voter turnout compared to nationals.
20. How will the new rules support those EU citizens to exercise electoral rights in the Member States of residence?
The new rules will ensure that such EU citizens are better informed about their electoral rights in the Member State of residence. They will simplify their registration procedures and they will make sure that there are no negative consequences, such as loss of electoral rights in some elections in the Member State of origin, to their choice to register and vote in the Member State of residence.
21. How will the new rules prevent multiple voting?
The personal data of mobile EU citizens collected by national administrations through the standardised templates will act as a basis for a common data set to be exchanged between Member State administrations to reduce further the possibility of multiple voting in the same election. The aim is to facilitate the identification of mobile EU citizens who are registered to vote in more than one Member State in European Parliament Elections.
Factsheet on European democracy: new transparency rules on political advertising and targeting
Electoral rights webpage all legal files and annexes
Source: European Commission
