ARTICLE 19 has reviewed the proposed EU Political Advertising Regulation (the Proposal) for its compliance with the right to freedom of expression under international and European human rights standards. Although the Proposal pursues important objectives, namely the increase of transparency of political advertising and the limitation of targeting techniques related to online political advertising, it fails to meet freedom of expression standards in its current form and could undermine civic space in the EU.
The Proposal was published by the European Commission in 2021. After consideration by the Council of the European Union and the European Parliament, the trilogues began in March 2023 and are expected to resume in September 2023.
The Proposal lays down transparency obligations in paid political messaging – regarding, for example, the political nature of the advertisement or the identity of the sponsor. These transparency obligations primarily bind providers of political advertising services, including political advertising publishers. It also places disclosure obligations on the sponsors of political advertisements. Finally, it regulates the use of targeting and amplification techniques involving the processing of personal data for political advertising purposes (whether paid or unpaid) and imposes obligations on all data controllers – beyond only providers of political advertising services – using such techniques.
Consequently, the Proposal carries potential implications for the freedom of expression of various parties, such as political advertising publishers, political candidates, or civil society organisations sponsoring advertisements, as well as online users generating unpaid political content that may encounter closer scrutiny from online platforms and regulators. In this analysis, ARTICLE 19 focuses on the most concerning risks to freedom of expression arising from the Proposal, namely its scope and lack of clarity, the potential for excessive removal of political expression online, and the potential for sanctions to be imposed on sponsors.
ARTICLE 19 acknowledges that the Proposal pursues important goals, namely the increase of transparency of political advertising and the limitation of targeting techniques related to online political advertising. These are central to the election processes but also have an impact on people’s fundamental rights, notably freedom of expression, the right to make political decisions, and voting rights. However, as currently drafted, the Proposal is incompatible with international freedom of expression standards:
- The Proposal fails to meet the legality requirement and is poorly drafted. It is unclear which obligations it intends to impose on the different types of sponsors, service providers, and publishers. The Proposal further adopts an overly expansive scope that encompasses issue-based advertising and unpaid messages, thereby risking inconsistent and arbitrary interpretation by public authorities.
- The Proposal falls short of the test of necessity and proportionality. It effectively seeks to regulate all types of content of political or public interest nature and thus poses significant risks to political discourse, although this type of speech enjoys the highest protection under freedom of expression standards.
- The extensive scope of the Proposal grants authorities power to scrutinise public interest messaging and could significantly impact civic space in EU Member States. The Proposal enables authorities to exert pressure on opposition parties and civil society by claiming that they have failed to comply with the obligations in the Proposal.
- The Proposal creates a strong incentive for online platforms to over-remove political and public interest content. This risk is further amplified if platforms are given a mere 48 hours during election periods to act upon user notices alleging that content is in breach of the Proposal provisions. In particular, content from smaller groups that may not hold financial relevance for online platforms could be susceptible to mass-reporting by bad faith actors, threatening the removal of the formers’ perspectives and opinions.
ARTICLE 19 calls upon EU lawmakers to address the concerns outlined in our analysis and bring the Proposal in line with freedom of expression standards.