The EU is set to complement the DSA with a new regulation on (targeted) political advertisements. In this piece we highlight how the regulation’s definition of political advertisements and enforcement mechanisms threaten freedom of expressio

de Vreese, C.

Helberger, N.

Schulz, W.

van Drunen, M.

English

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)The EU is going too far with political advertisingvan Drunen, M. ; Helberger, N.; Schulz, W.; de Vreese, C.Publication date2023Document VersionFinal published versionLink to publicationCitation for published version (APA):van Drunen, M. (Author), Helberger, N. (Author), Schulz, W. (Author), & de Vreese, C.(Author). (2023). The EU is going too far with political advertising. Web publication or website,DSA Observatory. https://dsa-observatory.eu/2023/03/16/the-eu-is-going-too-far-with-political-advertising/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:24 Jan 2024The EU is going too far with political advertising! - DSA Observatoryhttps://dsa-observatory.eu/2023/03/16/the-eu-is-going-too-far-with-political-advertising/[08-12-2023 17:37:40]The EU is going too far withpolitical advertising!Max van Drunen, Natali Helberger, Wolfgang Schulz,and Claes de VreeseThe EU is set to complement the DSA with a newregulation on (targeted) political advertisements. In thispiece we highlight how the regulation’s definition ofpolitical advertisements and enforcement mechanismsthreaten freedom of expressioRight now, the exclamation above is just a title.Depending on the outcome of the final negotiations on theEU’s proposal for a Political Advertising Regulation overthe following months, this title could soon be considereda political ad, and subject to regulatory scrutiny. This isdue to two issues with the regulation’s definition ofpolitical advertisements. The regulation takes a verybroad approach to determining what is political, andincludes any message that is liable to influence votingbehaviour. Moreover, the regulation takes acounterintuitive approach to defining advertising: its ruleson targeting potentially also capture political speech thatMarch 16, 2023 / in AnalysisDSA Audits:Procedural RulesLeave SomeUncertaintiesNovember 28,2023The extraterritorialimplications of theDigital Services ActNovember 1,2023Research Report onDisparate ContentModerationOctober 31, 2023The Out-of-courtSettlementMechanism underthe DSA: Questionsand DoubtsOctober 26, 2023The DigitalRecentpostsHome Analysis About Events Contact The EU is going too far with political advertising! - DSA Observatoryhttps://dsa-observatory.eu/2023/03/16/the-eu-is-going-too-far-with-political-advertising/[08-12-2023 17:37:40]is not part of a commercial advertising service.The result could be a regime that encourages censorship,chills certain forms of political speech, and burdenspolitical speakers with far-reaching limitations ondistributing their messages. Though the details are stillunder negotiation, the regulation’s general approach isbecoming clear. The regulation will require advertisers todeclare whether their ad is political, and provideextensive information about (among other things) theiridentity and the way the ad was funded. Publishers (likeplatforms, newspapers, and TV stations) must relay thisinformation to the public and label the ad as political. If itis self-evident to publishers that an advertiser has failed tocorrectly declare a political ad or provided wrong orincomplete information – and the advertiser fails tocorrect it – the ad may be removed. Users may also reportincorrectly labelled political ads, and in the month beforean election, publishers must address these notificationswithin 48 hours. Targeting young people or making useof sensitive data without consent will likely be prohibited.The EP has proposed further restrictions on politicalmicrotargeting, including a ban on any data that is notexplicitly provided by the user with specific consent forits use for the purpose of political advertising.The intentions are good – strengthening the democraticprocess by ensuring fairness and transparency in politicaladvertising. But the key question is to which and whosemessages these rules will be applied.Services Act as seenfrom the EuropeanPeriphery October5, 2023The DSA andPlatformRegulationConference 2024July 7, 2023Twitter’s retreatfrom the Code ofPractice onDisinformationraises a crucialquestion: are DSAcodes of conductreally voluntary?June 12, 2023Report onworkshop – Onlinejournalism: DigitalServices Act andEuropean MediaFreedom Act, 23February 2023April 13, 2023Expert opinion ondraft EuropeanMedia Freedom Actfor stakeholdermeeting 28February 2023March 29, 2023The EU is going toofar with politicalThe EU is going too far with political advertising! - DSA Observatoryhttps://dsa-observatory.eu/2023/03/16/the-eu-is-going-too-far-with-political-advertising/[08-12-2023 17:37:40]What is political advertising?The regulation would not only apply to messages frompoliticians and political campaigns, but also to so-calledissue ads – messages from any actor that are “liable toinfluence the outcome of an election … regulatoryprocess or voting behaviour”, in the words of the originalproposal.This is an exceptionally broad definition. The EuropeanParliament (EP) and Council have added language to therecitals that would broaden it even further. Both point outthat commercial advertising can use social issues topromote products and brands, and that it too falls underthe Regulation, if those commercial ads are liable toinfluence voting behaviour. The EP even goes so far as toargue that any message that is liable to influence “publicopinion on societal or controversial issues” should beconsidered political advertising. Note also that thedefinition of political advertisements itself does notrequire that someone pays for the message. The EuropeanParliament closed this loophole in the Commission’sproposal by clarifying that the entire regulation onlyapplies to economic services. However, the Councilexplicitly states the restrictions on targeted politicalspeech should apply no matter whether a service isinvolved or not. As over 30 NGOs emphasised in an openletter to the Council, this creates serious challenges forcivic speech.advertising!March 16, 2023Here is why DigitalServicesCoordinatorsshould establishstrong researchand data unitsMarch 10, 2023DSA Observatory’sfirst newsletterFebruary 27,2023The DSA’s crisisapproach: crisisresponsemechanism andcrisis protocolsFebruary 21,202323 February 2023– Expert workshopon “Onlinejournalism: DigitalServices Act &Media FreedomAct” February 20,2023New open-access e-book “Putting theDSA into Practice:Enforcement,Access to Justiceand GlobalImplications”The EU is going too far with political advertising! - DSA Observatoryhttps://dsa-observatory.eu/2023/03/16/the-eu-is-going-too-far-with-political-advertising/[08-12-2023 17:37:40]It is easy to see how the political advertising regulation’sdefinition can capture ads that are not traditionally seen aspolitical. Commercial ads that try to capitalise on societalissues like Kendall Jenner’s Pepsi ad may have manyproblems, but none that need to be addressed withpolitical advertising law. Ads from an NGO that spreadthe word about climate change, or fundraise to counternew legislation that threatens media freedom, would becovered as well if they are liable to influence regulatoryprocesses or voting behaviour. This opinion piece willonly escape regulatory scrutiny if it falls under theexception that the Commission included in the recitals(and the Council and EP would make binding law) forviews expressed under the editorial responsibility of amedia service provider without remuneration. Thebreadth of the regulation is perhaps best signified by thefact the EP found it necessary to clarify that catering,cleaning, and maintenance are not political advertisingservices.How will the political advertising regulation affectnon-politicians?All of this is bad news for civil society organisations orindividuals that participate in the public debate. If NGOstake the safe approach and declare their message apolitical ad, it will be labelled as such for users. TheNGOs will have to comply with the regulation’sextensive transparency obligations, and their ability totarget audiences will be restricted. In particular theFebruary 20,2023Counting the days:what to expectfrom riskassessments andaudits under theDSA – and when?January 30, 2023Using Terms andConditions toApplyFundamentalRights to ContentModerationDecember 2,2022Article 17 MediaFreedom Act & theDigital ServicesAct: aligned oralienated?November 25,2022EuropeanCommissionArticulatesPriorities forImplementingthe DSA November 1,2022The DigitalServices Act & theimplications for theThe EU is going too far with political advertising! - DSA Observatoryhttps://dsa-observatory.eu/2023/03/16/the-eu-is-going-too-far-with-political-advertising/[08-12-2023 17:37:40]restrictions on targeting young people and targetingpeople based on their political opinion may severely limitNGOs’ ability to reach their constituents. The EP’ssuggestion to limit targeting to data users have explicitlyprovided for the purpose of political advertising limitsNGOs’ ability to reach their audience even further.Advertisers that do not declare their ad as political, riskviolating the regulation. This is where the vagueness andbroadness of the definition of political advertising reallybegin to bite. The regulation creates a carte blanche forfar-reaching scrutiny of public communication because inpractice it is impossible to prove an ad (by definitiondesigned to persuade) is not liable to influence publicopinion or voting behaviour. However, failing to“truthfully” declare that an ad falls under the regulation’svague definition may result in a fine from a nationalpublic authority – not an insignificant concern in memberstates where the freedom of political parties and NGOs isunder pressure.In addition to the scrutiny of public authorities, publisherswill also have to check whether advertisers have correctlydeclared ads as political and provided all the requiredtransparency information. They must do so both on theirown initiative (to check whether the declaration andinformation are manifestly wrong or incomplete) and inresponse to notifications submitted by users. Theregulation’s recitals state publishers should focus onensuring the correction, completion or removal of thesafety ofjournalists (Part 2)October 27, 2022ALLPOSTSThe EU is going too far with political advertising! - DSA Observatoryhttps://dsa-observatory.eu/2023/03/16/the-eu-is-going-too-far-with-political-advertising/[08-12-2023 17:37:40]specific information that violates the regulation, and takedue regard of freedom of expression. However, theregulation creates few actual binding safeguards thatrequire publishers to ensure political advertisements arenot unjustly removed. There is little to stop publishersfrom taking a cautious approach and interpreting thedefinition of political advertising broadly, or givingadvertisers little time to make corrections. Worse, theregulation incentivises over-removal by potentiallyincorporating the large fines of the DSA (6% of annualturnover) and GDPR (2% of annual turnover), and givingplatforms a 48-hour window to address user notificationsin the month before an election. This is particularlyproblematic for small players that are of no real financialvalue to platforms.How should these dangers be addressed in thetrilogue?The vague and broad definition of political advertisingrisks undercutting the regulation’s overall goal tosafeguard democracy. The best way to avoid this risk is tocut issue ads out of the regulation. There is no version ofthis definition that is not so vague that it inevitablycaptures political speech in general. This is especially truewhen platforms and national regulatory authorities havesuch a large role in applying the definition in practice, asthey do under the regulation.If issue-based ads remain in the regulation’s scope, theirdefinition should be limited and clarified. It must be clearThe EU is going too far with political advertising! - DSA Observatoryhttps://dsa-observatory.eu/2023/03/16/the-eu-is-going-too-far-with-political-advertising/[08-12-2023 17:37:40]that the entire regulation only applies to paid-formessages. The language in the EP proposal that indicatesthe definition includes ads that simply influence publicopinion on societal issues should be removed. Both theCouncil and EP have also put forward a list of criteria thatare intended to clarify when a message is liable toinfluence voting behaviour, and when it should be seen asa purely commercial ad. But these norms remain so vaguethey do little to actually clarify the scope of political ads.What is needed is language that clarifies the definition ofissue-based ads should be applied restrictively, and notcapture efforts by civil society or other actors (such as theauthors of this blogpost) to contribute to the publicdebate. One way to limit the regulation’s chilling effect isto clarify that the burden of proof to demonstrate an ad ispolitical falls on publishers and public authorities, andthat the requirements to bring such proof are high. Goingfurther, the regulation should include binding languagestating that advertisers should be given sufficient time tocorrect wrong or incomplete information, and that minortransparency issues should not lead to the removal of thead. This may hamper the regulation’s efforts to limit theimpact of disinformation campaigns or lobby groupsposing as NGOs. But such safeguards are vital to securethe freedom of expression of civil society and otherparticipants in the public debate.The broader pictureThe process, like other recent ones – such as the DigitalThe EU is going too far with political advertising! - DSA Observatoryhttps://dsa-observatory.eu/2023/03/16/the-eu-is-going-too-far-with-political-advertising/[08-12-2023 17:37:40]Services Act and the proposed EU Media Freedom Act –shows that the EU organisation and policy-makingprocedures have a hard time when it comes to anticipatingthe consequences of regulating public communication.This is not surprising. The EU is essentially an economicregulator. That is how it came into being and that is whatall the actors are focused on. This is reflected, forexample, in the influence of the committees in theEuropean Parliament, where it falls on the Committee onCulture and Education in particular to hold up the flag offreedom of expression. The more the EU enacts rules thataffect public communication, the more urgent it becomesto integrate the relevant sets of expertise into EU decisionmaking, strengthen the procedures that anticipate broaderimpact on the marketplace of ideas, as well as re-thinkmore generally the legitimacy the European Union has foradopting speech-related measures under the legal bases toregulate the internal market and protection of personaldata.ConclusionThe proposed political advertising regulation makesgenuinely important contributions. For a long time, theopaque nature of online targeted political advertising hasmade it impossible for journalists, civil society, oracademics to scrutinise who is targeting which voters,with what messages, and how much they spend to do so.Especially the ad library provisions proposed by the EPwould bring much-needed transparency. They wouldThe EU is going too far with political advertising! - DSA Observatoryhttps://dsa-observatory.eu/2023/03/16/the-eu-is-going-too-far-with-political-advertising/[08-12-2023 17:37:40]Share this entry   provide more granular information on targeting andfunding than the DSA requires, force large onlineplatforms to include political ads in real time, and havethe Commission run an ad library for political ads that arenot published on large online platforms. Similarly, thelimits the EP imposes on ad delivery reduce platforms’power to decide who sees what political ads far beyondwhat the DSA requires. Nevertheless, it is crucial that thepolitical advertising regulation only addresses politicaladvertising, and leaves the ability of all of us toparticipate in the public debate unaffected. 2021 © studiotennekes

The EU is going too far with political advertising

https://pure.uva.nl/ws/files/147336458/The_EU_is_going_too_far_with_political_advertising_-_DSA_Observatory.pdf

The EU is going too far with political advertising

Abstract

Similar works

Full text

Available Versions

International Migration, Integration and Social Cohesion online publications