2024 is the year of elections. EU citizens recently voted for the European Parliament, while the UK’s general election is scheduled for 4 July. These are just two elections of those in more than 60 countries this year. Still to come is the U.S. presidential election expected in November, which will be closely watched by the entire world.
Past experience and the emergence of increasingly sophisticated artificial intelligence technologies illustrate the threats of undue influence and interference compromising the integrity of democratic electoral processes. It is no surprise then that the issue has attracted the European legislator’s attention leading to the adoption of the new Political Advertising Regulation (PAR) to prevent disinformation and achieve more transparency in the field of political advertising in the EU.
Background and objective
Political ads can be a source of disinformation, particularly if their political nature or the identity of a third party behind the placement is not disclosed. Transparency that counteracts information manipulation and undue influence is crucial for open and fair democratic elections. The Facebook Cambridge Analytica data scandal in 2018 exposed a critical increase in the sophistication of disinformation and the diversification of actors aided by rapidly evolving new technologies.
Political advertising was and still is regulated heterogeneously in the EU Member States, which has led to a fragmentation of the European Single Market and decreased legal certainty for providers of political advertising services.
A first step towards harmonisation can be seen in the EU’s Digital Services Act (DSA), which contains transparency requirements for advertising on online platforms. However, the DSA primarily relates to ads in general and does not specifically cover political disinformation.
The PAR, which came into force on 9 April 2024, seeks to further close the existing gap by establishing an EU-wide regulatory standard to prevent political disinformation, create more transparency in political advertising in the EU and strengthen the integrity of democratic electoral processes.
Scope and application
In a nutshell, the PAR applies to sponsors, providers and publishers of political advertising services, excluding ancillary services that merely complement and depend on political advertising and have no influence on its content or presentation nor control over its processing. Political advertising services therefore comprise a versatile range of providers of services associated with political advertising (such as political consultancies, advertising agencies, ad tech platforms, PR firms, influencers, data analytics and brokerage operators as well as website and app publishers).
The PAR defines political advertising quite widely as “the preparation, placement, promotion, publication, delivery or dissemination, by any means, of a message, normally provided for remuneration or through in-house activities or as part of a political advertising campaign by, for or on behalf of a political actor which is liable and designed to influence the outcome of an election”. Geographically, the PAR only covers political advertising to the extent that it is disseminated in the EU, brought into the public domain in one or several EU Member States or directed to EU citizens, irrespective of the place of establishment of the provider of political advertising services, the sponsor or the means used to display it.
The PAR does not affect the content of political ads itself nor EU or domestic rules, which regulate aspects related to political advertising other than those covered by the PAR. Political opinions expressed in a personal capacity are likewise excluded. Further, political opinions themselves and editorial content subject to editorial responsibility are not considered to be political advertising, unless paid for or otherwise remunerated. Ads falling outside the definition of political advertising are not covered.
So far, the applicable provisions of the PAR are very limited. Apart from its definitions (Article 3 PAR), only the prohibition of discriminatory restrictions based on the place of establishment set out in Article 5(1) PAR is currently applicable. The considerable remainder of the legislation will only become applicable on 10 October 2025, which means it will not catch this year’s wave of elections in the EU.
General requirements
Prohibition on discrimination: one of the PAR’s essential requirements that already applies is that providers of political advertising services must not make the provision of their services subject to discriminatory restrictions solely based on the sponsor’s place of establishment.
Prevention of foreign interference: without prejudice to stricter domestic rules, in the last three months preceding an election organised in the EU or an EU Member State, political advertising services pertaining to such election must only be provided by a sponsor or service provider acting on behalf of a sponsor, who declare themself to be (a) an EU citizen, (b) a third-country national permanently residing in the EU and having the right to vote or (c) a legal person established in the EU that is not owned or controlled by a third-country national or a legal person established in a third country.
Due diligence, transparency and record-keeping: political advertising services must be provided in a transparent and diligent manner. The PAR requires providers to keep records of the political ad or campaign, the specific service(s) provided, the invoiced amounts as well as the sponsor’s identity and contact details in machine readable form for a period of seven years.
Transmission of information: providers of political advertising services must transmit the information relating to political ads and services to political advertising publishers. Upon request, providers of political advertising services must also transmit any necessary information to competent authorities and, where technically possible, some information to independent interested entities (such as vetted researchers, political actors, electoral observers or journalists).
European repository for online political ads: political advertising publishers must provide every online political ad to the repository established by the European Commission. Very large online platforms and very large online search engines (VLOPs/VLOSEs under the DSA) must provide online political ads to the repository from the moment of their publication, while other publishers must do so no later than 72 hours after their first publication. Political advertising publishers must periodically report all information on the amounts or the value of benefits received in exchange for the services to the competent authorities.
Framework to indicate non-compliant political ads: similar to the DSA, the PAR sets up mechanisms that allow flagging of potentially non-compliant political ads. This requires political advertising publishers to take measures to enable and facilitate the submission of detailed third-party notices. Political advertising publishers that qualify as VLOPs must, in addition, process the notices in a diligent, non-arbitrary and objective manner and inform the submitting person of any follow-up. Non-VLOP publishers must use best efforts to process the notices and provide information to the submitting person at least upon request. In the final month preceding an election, political advertising publishers must process any notice they receive about a political ad linked to that election within 48 hours, provided that the notice can be processed completely based on the information provided.
Additional obligations
Identification of political advertising services: providers of political advertising services must identify those services by ensuring that the contractual arrangements concluded for their provision enable compliance with the PAR. This includes the request to the sponsor or the provider of political advertising services acting on behalf of a sponsor to declare whether the requested advertising service constitutes a political advertising service and whether they fulfil any of the requirements for the prevention of foreign interference. To determine whether a communication constitutes political advertising, a variety of aspects must be considered. These include the content and sponsor of the communication, the language used, the context in which it is conveyed, the communication’s objective and target audience as well as the means by which it is prepared and processed.
Labelling and transparency: providers of political advertising services are responsible for labelling and processing political ads in accordance with the PAR’s transparency requirements. Political advertising publishers must ensure that each political ad has a suitable transparency label and is made available together with the required transparency information, such as its identification as a political ad, the sponsor, the election to which the political ad is linked and information about any targeting or ad-delivery techniques used.
Targeting and ad-delivery techniques: specific requirements apply to targeting and ad-delivery techniques in the context of online political advertising. The PAR prohibits targeting or ad-delivery techniques that involve the processing of personal data of a data subject who the controller knows with reasonable certainty to be at least one year under the required voting age. Targeting or ad-delivery techniques that involve the processing of personal data are permitted only to the extent that (a) the controller collected the personal data from the data subject, (b) the data subject has provided explicit consent for the purpose of political advertising and (c) such techniques do not involve profiling based on special categories of personal data (such as data revealing political opinions or ethnic origin).
Such consent must not be requested if the data subject has already indicated by automated means that they do not consent to data processing for political advertising purposes unless such request is justified by a substantial change of circumstances. Further, if consent has not been given, the data subject must be offered an equivalent alternative for using the online service without receiving political advertising.
Additional transparency requirements apply relating to targeting and ad-delivery techniques. Controllers must provide a publicly available internal policy which describes how such techniques are used. The policy must be retained for seven years and the controller must additionally keep records on the use, mechanisms and parameters of such techniques. The controller must also provide additional information together with the political ad indication and prepare annual risk assessments.
Outlook
As only a very limited number of provisions currently apply, the PAR is a look at what the future holds in terms of the EU’s efforts to prevent disinformation in political advertising. It clearly lacks teeth when it comes to enforcement in this important election year. Once the PAR becomes fully applicable, however, violations can be subject to fines of up to 6% of the annual worldwide turnover of the sponsor or provider of the political advertising services.
Political advertising services and their stakeholders should, therefore, start aligning their policies and measures to prevent political disinformation and create more transparency, and begin preparing for compliance.
Only time will tell if the PAR lays the ground for continuing open and fair democratic elections by helping to prevent the dissemination of political disinformation. Whether it comes too late for the elections being held this year in the EU Member States remains to be seen.
