In November 2021, the Commission put forward a proposal for regulating various political advertising techniques including targeting. This proposed regulation on the transparency of political advertising is currently being discussed in the national parliaments of the Member States as well as by the EU co-legislators. The primary objective of the proposal is to establish harmonised rules and a high level of transparency for political advertising in the EU. The second objective is to promote the protection of personal data by laying down rules on targeting and amplification techniques in political advertising. These rules would apply to all data controllers using targeting and amplification techniques, and not only to political advertising companies.
There are several interesting elements to unpack in the Commission’s proposal. In this post, I will concentrate on two: (1) how the proposed regulation may affect the right to freedom of expression (Article 11 CFREU) and (2) the legal basis for such a regulation.
Freedom of expression and political advertising
In regulating political advertising and thereby also political speech, the proposed EU legislation could have a significant impact on freedom of expression. A key point of contention here is the definition of ‘political advertising’. The Commission wants to increase uniformity within the EU as to what is considered political advertising. Different interpretations and legislative solutions have been developed or are currently being developed in the Member States. The Commission believes that a clear solution should be found (see p. 1 of the proposal).
The proposal apparently seeks to promote harmonisation by making the definition of political advertising as broad as possible. The lack of precision of the term is likely to pose a problem with regards to the fundamental right of freedom of expression.
According to Article 2(2) of the proposal:
“‘political advertising’ means the preparation, placement, promotion, publication or dissemination, by any means, of a message:
(a) by, for or on behalf of a political actor, unless it is of a purely private or a purely commercial nature; or
(b) which is liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour.”
Sub-paragraph b, in particular, raises concerns as to whether the definition may be overly broad. The dissemination of a message that may affect the outcome of an election or, for example, the legislative process, can concern almost anything. Any kind of reflection or criticism of a political system, which is typical in open democratic debate, could be captured by Article 2(2)(b).
Moreover, in recital 17 of the proposal, the Commission puts forward a rather broad interpretation of Article 2(2)(b). To determine whether a political message falls within the scope of the proposed regulation, 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. The Commission notes here the rather obvious fact that messages on societal or controversial issues may influence the outcome of elections, the legislative process or voting behaviour. Therefore, all such messages would be subject to the proposed rules.
This approach seems strange considering that the right to political debate – which includes the right to express political opinions as well as the right to receive political communication – belongs to the essence of the freedom of expression. This is apparent also in Strasbourg case law. For instance, in the recent Sanchez v. France judgment, the ECtHR emphasised the importance of freedom of expression in the context of political debate. Even though it did not find a violation in this case, it argued that especially in the run-up to an election, opinions and information of all kinds should be permitted to circulate freely (paras 84, 89).
The obligations imposed by the Commission’s proposal would apply both to legal and natural persons. A ‘political advertising publisher’ would be any natural or legal person who broadcasts, makes available through an interface or otherwise brings to the public domain political advertising through any medium (see Article 2(11) of the proposal). The transparency rules would apply to all media, including newspapers, television, radio, social media and computer games (see recital 2). The scope of the proposed regulation is therefore much wider than for instance in the Digital Services Act (DSA), which this proposal is meant to complement. The DSA only affects intermediary services, in particular online platforms, such as social media and marketplaces.
The Commission does not propose any limitations on the content of political messages. However, as the proposal would impose transparency requirements, which include administrative burdens as well as higher costs, it could substantially limit the freedom of expression enshrined in Article 11 CFREU (and Article 10 ECHR). It is also noteworthy that it seems that there would be no journalistic exemption in this context, such as exists in the GDPR setting (Article 85) for example.
What legal basis could work in this context?
Considering the potentially very wide scope of the proposed regulation, the legal basis needs to be considered in tandem with the principles of proportionality and subsidiarity.
The Commission bases its proposal on Article 114 TFEU. This provision allows for the adoption of provisions for the establishment and functioning of the internal market to approximate the laws of the Member States. It is questionable to what extent an internal market legal basis can be used in the context of political advertising and (national) elections. The Commission seems to argue that there is a cross-border element simply because many of the proposed rules concern the online environment (see p. 6 of the proposal, see also Tobacco Advertising I and Tobacco Advertising II for interesting analogies).
The proposal is not intended to harmonise electoral legislation. This is clear because national elections as such fall under the competence of the Member States. However, considering the wording of the proposed provisions, it seems undeniable that the regulation would apply to a wide range of communications in the context of national election. Noteworthy is also Article 3(1) of the proposal, which states that Member States should not, for reasons of transparency, maintain or introduce provisions or measures that derogate from the provisions of the regulation.
Granted, the Commission is working for a good cause, in making this proposal. However, considering the principles of proportionality and subsidiarity, in my view, the Commission is not able to present a compelling argument for the choice of a fully-harmonising regulation, one that precludes the Member States to exercise their own legislative competence in this area. It is not clear how the interests of the internal market lie at the basis of this proposal, and even if they did, how can they override the need to protect the freedom of political speech? It seems somewhat strenuous to argue that such a regulation could be proposed for the purposes of market harmonisation, even though the Commission argues this by reference to the increasing compliance costs for service providers caused by the currently fragmented rules (see p. 5-6 of the proposal).
According to the Commission, the need for harmonisation is justified also by the fact that data protection is harmonised at EU level and therefore additional measures should be taken at EU level as well (see p. 3 of the proposal). This argument can be considered somewhat misleading, firstly, because data protection has not been fully harmonised, but in many areas Member States still retain legislative competence (see especially Article 6(2) and Article 9(2-4) GDPR). Secondly, the fact that data protection is largely harmonised does not require the adoption of a regulation on political advertising. If data protection is to be further regulated, it could equally – and more logically – be done within the framework of data protection regulation. This proposal for data protection in the context of political advertising is likely to cause confusion. Furthermore, it is not clear from the wording of the proposal how exactly it should be applied alongside the GDPR’s transparency rules.
Conclusion: The impossibility of limiting freedom of expression to protect democratic debate
How does one regulate fake news and disinformation? The Commission has taken on the extremely difficult task of regulating acts of political speech. It is a risky endeavour. The traditional logic in this context is that, the more political (as in, related to the public interest) a message is, the more likely it belongs to the core area of freedom of expression. Therefore, the Commission, in trying to protect democratic participation, may with its new proposal on political advertising (and particularly, its very wide scope) be throwing out the baby with the bathwater.