Towards Unfair Political Practices Law: Learning lessons from the regulation of unfair commercial practices for online political advertising

Online political advertising operates in a tense forcefield between political and commercial elements and thus presents regulators with a difficult conundrum: because online political advertising is political rather than commercial speech, it is destined to follow a different regulatory tradition than commercial advertising. And yet many of the tools used, players involved and concerns triggered by modern online political advertising strategies very much resemble the tools, players and concerns in online commercial targeting. Commercial advertising is subject to consumer law and unfair advertising regulation, including rules about unfair commercial practices. Unfair commercial practices law and other rules about commercial advertising, however, are explicitly not applicable to forms of non-commercial political or ideological advertising. An important reason why this is so is the different level of protection of political and commercial speech under fundamental rights law standards. And yet with the ongoing commercial turn in advertising, the traditional division between forms of commercial and political advertising is no longer that self-evident. Also, it cannot be denied that commercial advertising law has a long tradition of thinking of where and how to draw the line between lawful advertising and unlawful persuasion through withholding or misleading consumers about the information they need to take informed decisions, or abusing superior knowledge, exerting undue psychological pressure and engaging in other forms of unfair behaviour. The question this article explores is whether there are lessons to be learned from the regulation of commercial advertising for the pending initiatives at the national and the European level to regulate online political advertising, and online political targeting in specific

News from the ad archive: how journalists use the Facebook Ad Library to hold online advertising accountable

The Facebook Ad Library promises to improve transparency and accountability in online advertising by rendering personalised campaigns visible to the public. This article investigates whether and how journalists have made use of this tool in their reporting. Our content analysis of print journalism reveals several different use cases, from high-level reporting on political campaigns to uncovering specific wrongdoings such as disinformation, hate speech, and astroturfing. However, our interviews with journalists who use the Ad Library show that they remain highly critical of this tool and its manifold limitations. We argue that these findings offer empirical grounding for the public regulation of ad archives, since they underscore both the public interest in advertising disclosures as well as the growing reliance of journalists on voluntary and incomplete access frameworks controlled by the very platforms they aim to scrutinise