DIGITAL REGULATION TIMELINE - EU TRANSPARENCY STANDARDS FOR POLITICAL ADVERTISING

EU – Advertising & Marketing 

The European Commission has taken steps to regulate political advertising by proposing a new regulation on the transparency and targeting of political advertising.

Key date(s)

• 22 January 2021 – 02 April 2021: An open public consultation took place to gather additional evidence and data from stakeholders on any issues which may arise from the implementation of this proposal.
• 26 January 2021: A consultation on the Inception Assessment was published to provide information and develop the problem definition and policy options.
• 25 November 2021 – 31 January 2022: the feedback period in which the European Commission will consider the comments received from the stakeholders.
• 1 April 2023: the date in which the regulation shall be binding and applicable to all Member States.

Status

• On the 25 November 2021, the European Commission (EC) published their proposal for a regulation on the transparency and targeting of political advertising (EU) 2021/0381) (RPA) and sought feedback from interested parties. The feedback period ended on 31 January 2022 and revealed that the respondents (of which were mostly EU citizens) expressed concerns over political advertisement and particularly the ability of "foreign actors being able to sponsor political advertising to increase their influence in the EU" and "political advertising being used to spread misleading information." This feedback has been subsequently used to guide the proposed transparency requirements. The RPA shall come into force on 1 April 2023.

Why the RPA is required 

• The RPA will come into force in response to the growth of political advertising on online services and the fragmentation of national rules on advertising between Member States.
• First, the RPA aims to address the issue of fragmentation of laws at a national level by replacing them with a single set of harmonised rules. The EU have recognised a need for action at a high level as national rules between Member States do not align across borders. Consequently, there is legal uncertainty across jurisdictions which leads to "additional compliance costs with service providers having to invest in determining the applicable standards to political advertising in different jurisdictions". This divergence of laws also "limits the possibility" to political advertising services who will have to navigate different rules and standards to advertise in numerous Member States as such a single set of harmonised shall help to remedy this.
• Second, the RPA intends to create a more secure environment for consumers and the processing of their personal data, particularly sensitive personal data due to the growth of online services which has enabled targeted advertising and political messages to be easily presented to individuals. The processing of personal data (including sensitive data) has been viewed to have a "specific negative effects on citizens' rights including their freedoms of opinion and information, to make political decisions and exercise their voting rights". In addition, given there is already harmonisation across Member States regarding personal data and transferring it, the EU concluded that additional protection is required in the context of political advertising.

What it hopes to achieve 

• The RPA aims to achieve greater transparency by imposing more stringent obligations on the provision of advertising services. For example, each political advertisement must include a statement to the effect that it is a political advertisement, the identity of the sponsor or the entity ultimately controlling the sponsor and a transparency notice (Article 7). This transparency notice must include information such as an indication of elections or referendums the advertising applies to (where applicable) and information on the amount spent or other benefits received in part or full exchange of the relevant advertisement (Article 7).
• As for personal data, Article 12 of the RPA aims to add supplementary protection to targeting and amplification techniques laid down in Regulation (EU) 2016/679 and Regulation (EU) 2018/1725). For instance, controllers must implement an internal policy describing the use of techniques which target individuals or amplify the content, keep records on the use of targeting and amplification and provide additional information to allow the individual concerned to understand the main parameters of the technique, the use of third-party data and additional analytical techniques. And this is set against the fact the RPA will apply to all data controllers i.e. beyond providers of political advertising services making use of such targeting and amplification techniques.

Who does it impact? 

• Inevitably all Member States will be impacted by these rules as they must not only implement these new rules but ensure they do not maintain or introduce provisions or measures diverging from those laid down in the RPA. Ensuring harmony across Member States helps contribute to the proper functioning of the internal market for political advertising and related services. However, the RPA does not regulate other aspects of political ads such as limits on funding, the medium on which political advertisements are delivered, sponsors or substance. Such rules are described by the EU as "intrinsic to national electoral law and do not form part of the functioning of the internal market".  The RPA is therefore limited to the transparency of political advertisements only.
• On the personal data front, all data controllers will be affected by the implementation of the RPA and they should be aware of the additional obligations imposed upon them. This can be achieved by creating additional safeguards such as a policy document detailing the use of targeting techniques for instance.
• The RPA also imposes sanctions including administrative fines and financial penalties to providers of political advertising services who fail to comply with the RPA.

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