COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT REPORT Accompanying the document Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the transparency and targeting of political advertising

EN EN
EUROPEAN
COMMISSION
Brussels, 25.11.2021
SWD(2021) 355 final
COMMISSION STAFF WORKING DOCUMENT
IMPACT ASSESSMENT REPORT
Accompanying the document
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the transparency and targeting of political advertising
{COM(2021) 731 final} - {SEC(2021) 575 final} - {SWD(2021) 356 final}
Offentligt
KOM (2021) 0731 - SWD-dokument
Europaudvalget 2021
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Table of contents
1. INTRODUCTION: POLITICAL AND LEGAL CONTEXT................................................................3
2. PROBLEM DEFINITION .....................................................................................................................5
2.1. Scope and context ..............................................................................................5
2.2. What are the problems? .....................................................................................7
2.3. How will the problems evolve? ..........................................................................20
3. WHY SHOULD THE EU ACT? .........................................................................................................22
3.1. Legal basis .......................................................................................................22
3.2. Subsidiarity: Necessity of EU action ...............................................................23
3.3. Subsidiarity: Added value of EU action ..........................................................24
4. OBJECTIVES: WHAT IS TO BE ACHIEVED? ................................................................................25
4.1. General objectives............................................................................................25
4.2. Specific objectives ...........................................................................................25
5. WHAT ARE THE AVAILABLE POLICY OPTIONS.......................................................................26
5.1. What is the baseline from which options are assessed?...................................26
5.2. Description of the policy options.....................................................................28
5.3. Options discarded at an early stage..................................................................35
6. WHAT ARE THE IMPACTS OF THE POLICY OPTIONS?............................................................35
6.1. The baseline scenario.......................................................................................35
6.2. Assessment of the options................................................................................36
6.2.1. Economic impacts............................................................................................36
6.2.2. Social impacts ..................................................................................................42
6.2.3. Fundamental rights impacts .............................................................................43
7. HOW DO THE OPTIONS COMPARE?.............................................................................................46
7.1. Effectiveness....................................................................................................47
7.2. Efficiency.........................................................................................................48
7.3. Coherence with other initiatives ......................................................................49
8. PREFERRED OPTION .......................................................................................................................50
9. HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? ..................................53
ANNEXES ....................................................................................................................................................56
GLOSSARY AND ACRONYMS.................................................................................................................56
ANNEX 1: PROCEDURAL INFORMATION.............................................................................................59
ANNEX 2: STAKEHOLDER CONSULTATION .......................................................................................61
ANNEX 3: WHO IS AFFECTED AND HOW? ...........................................................................................78
ANNEX 4: ANALYTICAL METHODS ......................................................................................................84
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ANNEX 5: CONTEXT, SCOPE OF THE MARKET, AND OTHER ASPECTS RELEVANT TO THE
PROBLEM DEFINITION ...................................................................................................................88
ANNEX 6: INTERVENTION LOGIC........................................................................................................122
ANNEX 7: LEGISLATION ADDRESSING POLITICAL ADVERTISING ACROSS MEMBER
STATES.............................................................................................................................................123
ANNEX 8: PRESENTATION AND ANALYSIS OF EU ACQUIS ..........................................................159
ANNEX 9: ILLUSTRATIVE USE CASES................................................................................................218
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1. INTRODUCTION: POLITICAL AND LEGAL CONTEXT
The President of the European Commission, Ursula von der Leyen, announced in her political
guidelines1
that the European Democracy Action Plan (EDAP)2
‘will include legislative
proposals to ensure greater transparency on paid political advertising and clearer rules on
the financing of European political parties.’ EDAP, presented by the Commission in
December 2020 highlights the ‘clear need for more transparency in political advertising and
communication, and the commercial activities surrounding it’ and announced that ’the
Commission will present a legislative proposal on the transparency of sponsored political
content’, to ‘complement the rules on online advertising in the forthcoming DSA, with the aim
to have dedicated rules in place sufficiently ahead of the May 2024 European Parliament
elections’. To that end, the 2021 Commission work programme includes3
a proposal for
greater transparency in paid political advertising.
The Commission’s initiative on the transparency of political advertising aims to support the
functioning of the single market for political advertising services (‘political ads’) addressing
the growing patchwork of legislation in this area and related barriers including in terms of
compliance cost and lack of legal certainty. It aims to promote high European standards of
transparency in political campaigning and free and fair elections in the EU level, strengthen
the resilience of democratic processes in the EU and combat disinformation, information
manipulation and interference in elections.
Political advertising is a tool in campaigning to convey political messages to voters. It aims to
influence people’s views on political subjects and their voting decisions, and is often
specifically regulated nationally, with a specific focus on transparency.4
The traditional
media for political ads used to be newspapers, posters, radio and television. Today, these
have increasingly been displaced by the digital sphere. Digital technologies have also made
political advertising cheaper and increased the number and types of service available to
support campaigning. The cross-border nature of online political advertising has challenged
the relevance of national rules, which typically included restrictions to ensure democratic
accountability and fairer processes and economic operators face difficulties to determine and
adapt to applicable rules, limiting their ability to offer advertising services.
Online political ads are commonly targeted at groups of users, based on the processing of
personal data5
. Targeting (directing an ad to a specific group of people based on some shared
characteristics) can be very sophisticated. While this can beneficial in addressing political
messages to concerned citizens, the Cambridge Analytica scandal6
revealed a need to address
1
https://www.europarl.europa.eu/resources/library/media/20190716RES57231/20190716RES57231.pdf
2
The EDAP presents measures to protect the integrity of elections, promote democratic participation and address
disinformation https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=COM%3A2020%3A790%3AFIN&qid=1607079662423
3
https://eur-lex.europa.eu/resource.html?uri=cellar%3A91ce5c0f-12b6-11eb-9a54-
01aa75ed71a1.0001.02/DOC_2&format=PDF
4
See Annex 7.
5
While alternatives such as contextual advertising exist, current prevalent practices are based on track-and-target, i.e. on the
processing of personal data. See Panoptykon, “To track or not to track?” (2020).
https://panoptykon.org/sites/default/files/publikacje/panoptykon_to_track_or_not_to_track_final.pdf
6
Personal data belonging to Facebook users were illegally processed. The company developed elaborated psychological
profiles and offered its consulting services to various political campaigns, targeting voters without consent with messages
designed to influence their vote.
4
this phenomenon7
. It brought to light unauthorised interference in elections (including by
foreign state actors), exploitation of online social networks to mislead voters, and
manipulation of the debate and their choices8
, using psychographic profiling and opaque
practices that conceal or misrepresent key information9
. Other techniques are also used to
spread or amplify manipulative political ads. The application of opaque algorithms and the
analysis of personal information allow the tailoring and targeting of political ads, which can
exploit vulnerabilities of voters, including in another Member State. The volumes of data at
stake are important, including data derived from the use of social media and commercial
practices (e.g. consumer profiles), combined with offline data.
This initiative will build on and complement relevant EU law10
, including Regulation
2016/679 (GDPR), the recent proposals for a Digital Services Act (DSA)11
and for a Digital
Markets Act (DMA)12
, addressing economic operators and issues identified for political
advertising13
. It is being complemented by other initiatives including the update of the self-
regulatory Code of Practice on disinformation14
, based on the recently published Commission
guidance15
. This proposal will also be in synergy with the efforts led by the EU externally, in
the field of election observation (EU Election Observation Missions and their follow-up)
Both the European Parliament and the Council have expressed concerns about the lack of
transparency in political advertising and the use of (micro)targeting16
. Different Parliament
committees have engaged on this topic, in particular the Constitutional matters (AFCO), the
Internal Market (IMCO) committees and the Special Committee on Foreign Interference in
Democratic Processes in the EU, including Disinformation (INGE). The Parliament has
called for legislative and non-legislative policy measures. The Council has supported
7
Concerns about the effects of new advertising practices erodes citizens’ trust in online ads and digital markets. See ‘Online
advertising: the impact of targeted advertising on advertisers, market access and consumer choice’ Study for the EP IMCO
committee:
https://www.europarl.europa.eu/RegData/etudes/STUD/2021/662913/IPOL_STU%282021%29662913_EN.pdf.
8
Including via the spreading of disinformation, in which ads can play an important role.
https://www.disinfo.eu/advocacy/open-letter-to-eu-policy-makers-how-the-digital-services-act-dsa-can-tackle-
disinformation/?utm Half of Internet-using Europeans say they have been exposed to or personally witnessed disinformation
on the Internet. https://fronteirasxxi.pt/wp-content/uploads/2021/06/ebs_507_en.pdf
9
In particular, the origin and political intent behind political communications, their sources and funding. See the
Communication from the Commission to the European Parliament, the Council and the European Economic and Social
Committee – Report on the 2019 elections to the European Parliament, COM(2020)252 final.
10
See detailed description and analysis in Annex 8.
11
The DSA proposal includes general transparency obligations on online advertising for online intermediaries, horizontal
due diligence obligations for very large online platforms and a governance framework https://ec.europa.eu/info/law/better-
regulation/have-your-say/initiatives/12418-Digital-Services-Act-package-ex-ante-regulatory-instrument-of-very-large-
online-platforms-acting-as-gatekeepers and https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12417-
Digital-Services-Act-deepening-the-Internal-Market-and-clarifying-responsibilities-for-digital-services.
12
Digital Markets Act proposal: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=COM%3A2020%3A842%3AFIN. This
includes non-binding recommendations on tackling illegal content online https://ec.europa.eu/digital-single-
market/en/news/commission-recommendation-measures-effectively-tackle-illegal-content-online; as well as a voluntary
Code of Conduct against Hate Speech https://ec.europa.eu/newsroom/just/document.cfm?doc_id=42985
13
This initiative addresses all actors involved in financing, preparing, placing and disseminating political advertising (thus
beyond the immediate publishers of ads, political and marketing consultancies, advertising and campaign organisations, and
other relevant service providers). For a description of the articulation between the current initiative and other EU acts (DSA,
Regulation 1141/2014, etc.), see Annex 8.
14
https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_19_6166
15
https://digital-strategy.ec.europa.eu/en/library/guidance-strengthening-code-practice-disinformation
16
Microtargeting and targeting are often used interchangeably – see Glossary.
5
initiatives to promote free and fair elections and democratic resilience, and Member States
have been involved in preparing the EDAP and this initiative17
.
2. PROBLEM DEFINITION
2.1. Scope and context
There is no EU-wide common concept of political advertising and Member States use various
approaches18
. For the purposes of this impact assessment, political advertising19
will be
understood as the promotion of a message, published by any means, and which is being paid
for by, or disseminated by or on behalf of a political actor, or which may be understood as
seeking to influence the outcome of the election or the voting behaviour (especially when
published during an election period). This includes ads on all media platforms (including
online and offline) disseminated in the European Union, ‘issues ads’, and political advertising
which may also have commercial purposes20
. A broad range of service providers is involved
in political ads, online and offline, in their preparation, publication and dissemination.21
Issues with regard to political ads online emerged in the public sphere in March 2018, when it
was revealed that Facebook data, including Like data, on more than 87 million users was
used by political consulting firm Cambridge Analytica to target voters during elections22
.
There are significant differences between political advertising and other forms of advertising
in the single market. Misleading commercial advertising is already forbidden according to
Directive 2006/114/EC. Addressing political advertising as other commercial advertising
would not be possible due the specific context of political advertising and the close
relationship with elections, freedom of expression and political pluralism among others.
Transparency of political advertising is also linked to accountability and democratic
oversight, as an essential democratic principle.
The Commission’s report on the 2019 elections already noted the importance of increased
transparency of political advertising to ensure resilience and integrity of electoral processes in
the EU. It also noted the limited implementation of the 2018 Electoral package
recommendation in this respect and the need for further measures. The report highlighted the
close connection between a lack of transparency in political advertising, the misuse of
algorithmic targeting and the increased risk of interference in and manipulation of democracy
in the EU. The Commission’s joint Communication on tackling COVID disinformation of
June 2020 described the ‘infodemic’ which accompanied the coronavirus pandemic and the
challenges this posed including for democracy and democratic processes, and pointed to
concrete measures at EU level to address these challenges.
17
For more details on the European Parliament and the Council, see Annex 5.
18
National definitions tend to focus on the actors sponsoring ads or on the political intent of the message.
19
’Ads’ is defined variously in existing law - See Glossary in the Annexes.
20
Where this is the case, the rules on commercial communications may also apply. An example is a company promoting its
products through an ad which also promotes certain political views (such as a candidate’s stance on climate change). See
section 6 in Annex 7.
21
For a full description of the relevant service providers and the different value chains involved, see Annexes 3 and 6.
22
Other examples have been documented by the literature.
6
Some Member States have legislated or intend to further legislate in the field of political
advertising for reasons of public interest. As a result, a patchwork of national rules is
emerging and likely to increase. Heterogeneous national specific requirements on political
advertising and related barriers obstruct the exercise of fundamental freedoms with a direct
effect on the functioning of the internal market. Member States’ regulation on transparency of
political advertising goes beyond what applies to other forms of advertising. The aim of such
national regulation is primarily to prevent citizens from being misled in their democratic
choices, support their genuine political participation and accountability of political actors,
contributing to fair and free democratic processes and their oversight, and preventing external
interference23
. Differences concern, for instance, diverse requirements for each media (e.g.
TV and radio and online services), transparency related to the funding of political ads, the
way ads should be labelled or what must be made public during election periods and
oversight. Further, the regulation of issues ads is even more heterogeneous, even as their role
in shaping political campaigns and influencing the outcome of elections is more and more
recognised24
.
The fragmentation leads to impediments for service providers including when providing
cross-border services. It significantly increases compliance costs to adapt to the different
jurisdictions and is a source of legal uncertainty on the applicable transparency requirements.
It further restricts the possibilities and choice for cross-border campaigning for political
actors like European Political Parties.
The heterogonous regulation impacts companies operating in a cross-border context. It
prevents some operators, especially SMEs25
, which could offer their political-ads-related
services in different Member States from entering the market. There are also many economic
actors providing novel ad-related services, such as those providing data-driven analysis and
programmatic ads. It may be unclear whether and how these providers are affected by rules
designed for traditional campaigning. In the cases where service providers are able to offer
cross-border services, the currently heterogeneous legal standards also lead to oversight
related issues as affected citizens, the competent authorities and the advertisers and related
services providers can be located in different Member States. This results in tensions and
barriers in the internal market for services connected to political ads. It also generates poor
regulatory outcomes, which combined with the lack of transparency and other issues related
to the monitoring and enforcement of relevant rules, undermines the integrity of electoral
processes and citizen’s confidence in them. National action to address the situation is not
fully effective and creates further barriers, and the same applies to private sector policies.
23
For instance, the Council of Europe Recommendation No. R (99) 15 of the Committee of Ministers to Member States on
measures concerning media coverage of election campaigns states that, if paid advertising is allowed, it should be subject to
some minimum rules: 1) equal treatment (in terms of access and rates) of all parties requesting airtime, and 2) the public to
be made aware that the message has been paid for,
https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805e3c6b For an analysis of the application of key
principles including transparency in regulating the political process, and an account of the role of transparency in deterring
foreign interference in elections, see Regulating Election Finance, A Review by the Committee on Standards in Public Life
July 2021.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/999636/CSPL_Regulating
_Election_Finance_Review_Final_Web.pdf
24
Guidance on strengthening the Code of Practice on Disinformation, p9 (referred to above).
25
One stakeholder reported that smaller companies may be prevented from entering political advertising markets due to the
costs of complying with the applicable regulations. Legal fragmentation presents a higher burden to SMEs.
7
Although the DSA will strengthen transparency and supervision of online ads, including
political ads, it will not address the specifics of political advertising. The DSA provides a set
of horizontal rules which apply to information society services26
. The transparency
requirements provided by this new framework will complement those foreseen by the DSA
by addressing the entire spectrum of economic actors involved in the preparation, publication
and dissemination of political advertising, following a problem-specific value chain approach
and imposes corresponding obligations on types of actors. While the DSA requires platforms
to disclose the identity of the advertiser (irrespective of whether it refers to political or
commercial ads), the political ads initiative will require them to also provide information
about the political affiliation and on the funding of the ads.
National rules apply to European political parties (EUPPs) on issues not regulated by
Regulation 1141/2014. The Regulation does not address political ads directly – only as
regards the rules on the application of EU funds. Accordingly, campaigns by EUPPs are
potentially subject to different national rules (e.g., rules on what constitutes political
advertising, targeting, and periods in which political ads are restricted), despite the
transnational character of EUPPs and the EU-wide character of the issue they campaign on.
2.2.What are the problems?
Summary of key problems
1 - For cross-border providers of political ads27
2 - For democratic processes and
political parties in the EU, linked to
internal market problems
Related to transparency, targeting, and monitoring and enforcement
a. Additional costs and lack of legal certainty for
economic actors (incl. EU SMEs28
seeking to
offer and scale up their services across borders)
including when providing multi-medium and
multi-Member State campaigns,29
caused by:
i. fragmented rules and definitions;
ii. rules and procedures that are not always clear,
transparent or easily accessible.
Poor national regulatory outcomes caused
by:
a.Insufficient transparency and clarity for
individuals, ‘interested actors’30
and
national authorities, leading to:
i. non-recognisability of political
ads;
ii. reduced accountability;
iii. circumvention of relevant rules.
b.Negative impacts on citizens’ rights and
democratic processes, from the use of
b. Regulatory arbitrage and circumvention of
relevant rules by economic actors offering
political ads services (regulatory failure)31
26
The DSA takes an horizontal approach vis-à-vis online intermediaries (starting from the actors involved) while the
political ads initiative takes an horizontal approach on political ads applying to different actors.
27
Issues under points 1 and 2 are applicable to online and offline services, albeit in different ways/to different extents.
28
Large non-EU platforms have a prominent market position in the EU. They establish their policies (e.g. Facebook rules on
2019 EP elections).
29
As reported in the interviews conducted by the contractor.
30
‘Interested actors’ in this context refers to a subgroup within citizens/individual residing in the EU who play a particular
role in the democratic process in ensuring that political actors are held to account. This includes journalists, researchers,
elections observers, civil society organisations and other actors. This function is understood to be distinct from the
monitoring and enforcement role played by competent authorities, which is treated in another point.
31
For online and broadcast media, internal market principles which enable the provision of relevant services from another
Member State on the basis of that state’s rules can mean that relevant rules in the receiving state might not be taken into
account. In a few Member States, third country providers are barred by national rules from offering such services (e.g. as in
the Irish 2020 proposal for an Electoral Reform Bill). https://www.gov.ie/en/publication/34cf6-general-scheme-of-the-
electoral-reform-bill-2020/
8
driven by differing substantive obligations and
enforcement (costs), and different possibilities
to provide services (obstacles).
targeting and other techniques with
political ads;
c.Insufficient possibility for authorities to
monitor and enforce relevant rules
across borders.
c. Additional regulatory burden for offline actors
in political ads, caused by the differences
between online and offline regulation (itself also
driven by limited regulatory capability).
3 – Political parties in the EU
a. Inconsistent and insufficient transparency of political ads issued by EUPPs, because:
i. The legal framework (Reg. 1141/2014) does not provide for sufficient transparency for
political advertisements disseminated by EUPPs. Divergent national frameworks apply to
their political ads32
;
ii. The regulation at EU level is not consistent (Reg. 1141/2014) with national regulation. It
pursues objectives connected to financial rules, not to ensuring electoral standards33
. Links
between national and EU campaigns are not made clear on the face of the ads34
.
b. Inconsistent and sometime insufficient transparency of political ads issued by national
political parties especially for the context of European elections,35
due to the fragmented
situation.36
2.2.1. Obstacles to the cross-border provision of online political advertising services in the
internal market (Problem 1)
Political ads services in the internal market include political advertising delivered through
broadcast media, various online channels (social media, banner ads, video-sharing spots etc.)
and through other offline means, including billboards, print media and direct mailing. They
can involve a large number of related supporting services, such as data services, copywriting,
analysis and financial services, often provided by SMEs37
.
It is challenging to isolate political advertising from other advertising services in market
statistics38
. The study and consultation did not manage to obtain comparable data on the
offline publishing sector, outside of the disclosures made in the context of national
elections39
. Regarding online advertisement publishing activity, there is a lack of
transparency that makes is almost impossible to obtain accurate, consistent and comparable
data. Nevertheless, it is clear that the size and complexity of the political advertising market
32
Responses to the consultation process did not identify any examples of national rules being enforced in the context of
campaigns sponsored by EUPPs, but this could change.
33
For instance, while political parties make declarations on the money they spent on political advertising, this is not declared
during the elections but only within 6 months of the end of the fiscal year, and not in sufficient detail.
34
This is particularly problematic if EUPPs engage in EU-level campaigning to affect the outcomes of European Parliament
elections. Or, as mentioned in the draft EP report on the application of Regulation 1141/2014, if EUPPs campaign to
influence the outcome of national referenda on European matters, https://www.europarl.europa.eu/doceo/document/AFCO-
PR-692733_EN.pdf
35
In the context of EU elections, candidates and campaigns are mainly sponsored by the national political parties, through
campaigns which may also be run in multiple Member State.
36
This is the case when campaigns target diaspora communities residing in other Member States but who vote in national
elections in their Member State of origin, or in connection with campaigns by multi-Member State political parties during
European elections, such as Diem25 and Volt.
37
For a profile of the market, the service providers and value chains involved, see Annex 5, in particular 2.5.
38
Most agencies providing political ads (including ad tech companies, platforms and marketing consultancies) also work on
other kinds of campaigns. There can be specialisation in certain Member States for certain support services, such as political
campaign and electorate analysis consultancies.
39
Only a few Member States provide for these to be published, such as Latvia, and the former Member State.
9
is increasing both within and outside the EU – particularly online, where the EU market was
estimated to be worth over EUR 100 million in 201940
.
Political advertising services are regulated in diverse ways41
. When offered across borders in
the internal market, certain rules can affect economic actors involved, i.e. those regulating:
1. the availability of political ads (rules banning political ads or banning cross-border
provision of such services, setting prices or other issues determining access to the
debate, and the period/scope of circulation);
2. the advertisements themselves (rules on content and transparency around them –
requiring the publication of logos, sponsor details, spending – as well as prohibiting
certain content, such as hate speech).
This initiative focuses on the second category, and particularly on transparency requirements.
The initiative does not consider interventions regarding prohibitions of content or of political
ads per se, except to the extent that transparency supports oversight of such rules. A key
aspect of the regulation of political advertising is transparency to enable their easy
identification by viewers to prevent manipulation, democratic accountability and oversight by
competent authorities.
Moreover, transparency appears to be the key available area for harmonisation, which de
facto allows for shaping the emerging market for political advertising services in a way that
minimises fragmentation, barriers and costs for economic actors.
Stakeholders’ views: In the consultation process, Member State authorities and civil society
contributions highlighted that the current fragmentation has enabled the circumvention of
transparency requirements and drove some activity to less regulated Member States, also away from
the more strictly regulated offline services. Further, they noted how recent uncoordinated action by
Member States to address these issues has exacerbated rather than corrected this situation42
.
The fragmentation of transparency requirements for political ads, with differences in their
substance, scope, implementation and enforcement between Member States, and between the
policies applied by leading ad publishers, generates various costs and challenges for
economic actors operating across borders or seeking to do so.
2.2.1.1. Additional costs and compliance burden for economic actors (Problem 1.1)
Driven by rules which are not always clear, transparent or publicly available: Reliable
information about applicable requirements (including the procedures to be followed) can be
challenging for service providers to obtain outside their specific jurisdiction, especially as
40
However, the varying definitions applied both by regulators and by the economic actors providing such services means
that reliable figures are difficult to obtain and to compare between Member States, media and sectors. For a description of
the advertising market in the EU with estimated figures, see section 1.2 of the underlying study.
41
In 2013, the European Court of Human Rights (ECHR) observed there was a lack of European consensus on how to
regulate paid political advertising in broadcasting, referring to a patchwork of legislation at national level – as well as a great
variety of approaches and requirements – for online political advertising. It pointed out that this leads to inconsistent – across
national jurisdictions – and unclear obligations especially for actors operating in a cross-border context. ECHR (2013),
Judgement 48876/08, Animal Defenders International v. the United Kingdom. http://hudoc.echr.coe.int/eng?i=001-119244.
42
In the consultation process, CSOs pointed to varying levels of regulation in the Member States as contributing to decisions
about the location of certain service providers. Cf. also Irish Parliamentary Library and Research Service (2021), Note
evaluating the government proposal to regulate online political advertising.
https://data.oireachtas.ie/ie/oireachtas/libraryResearch/2021/2021-02-08_l-rs-note-the-regulation-of-online-political-
advertising-evaluating-the-government-s-proposals_en.pdf.
10
they are not always clear and easily accessible. For instance, in some Member States, they are
provided by standard-setting bodies or national authorities, rather than in law43
.
Driven by fragmented rules, definitions and requirements:
Operators affected by these rules must invest in separate compliance steps and adapt to the
various requirements of the different EU jurisdictions44
to provide services in the internal
market. Fragmentation is exacerbated by the scope of national rules differing, with different
actors being covered, and by varying obligations depending on the period, sponsor, medium,
content and objective of the ad45
. As an example of the potential effect of differing
definitions, online audio-visual ads prepared in the Netherlands with a political aim but
without affiliation to a specific political party would not be subject to the rules applying to
political campaigns if disseminated into Denmark, but would be subject to such rules if they
were disseminated into Ireland or Cyprus46
. Publishers and campaign agencies need to ensure
that ads are adapted to each jurisdiction’s transparency requirements, such as on logos,
affiliation and funding, but also to related obligations e.g. connected to access to the media.
In this respect, political ads offered across borders in the internal market differ from
commercial ads, where such rules are (largely) harmonised47
.
The relevant national rules on transparency of political advertising thus differ depending on
what counts as ‘political advertising’, as per national definitions. This means that what can
count as a political advertisement in one state (and thus also potentially engage other rules),
might not in another, or vice versa, which complicates cross-border campaigns.
They further differ depending on whether they apply to a specific medium: some Member
States have distinct rules for print, radio, television and online media, whereas for others the
rules apply to multiple media at once, or regardless of the medium, or explicitly to traditional
media and implicitly to other media.48
Only four Member States have (or will soon have)
rules specifically for online media. This kind of fragmentation obliges service providers
interested in providing political advertising services to carefully assess the whole legal
framework applicable to each media for each Member State where they want to provide their
services.
Further, even when two Member States have rules in place for the transparency of political
advertising on a given medium, the elements of transparency required to be disclosed may
43
Such as limits to advertising in specific media, on transparency about sources or separation of advertising from editorial
content: these can be found in national law and constitutions as well as in professional standards (for instance among
journalists) and guidelines from regulators, such as media authorities. For an overview see ‘Internal Media Plurality in
Audiovisual Media Services in the EU: Rules & Practices’ (ERGA Report) https://erga-online.eu/wp-
content/uploads/2019/01/ERGA-2018-07-SG1-Report-on-internal-plurality-LQ.pdf, in particular from p 27.
44
This was mentioned in the consultation as a potentially significant additional cost in a campaign preparation process,
involving the investment of time from regulatory compliance officers or external contractors to determine the specific
requirements applicable per jurisdiction in a multi-Member State campaign, as well as the additional work needed from
copywriting, design and translation to implement any required differences to the appearance of material prepared, as well as
further costs to prepare and make any necessary declarations, e.g. regarding sponsors or costs, where needed.
45
See Annex 9, which illustrates the various ways that legal fragmentation increases costs and adds compliance burdens to
the political ads value chain when services are provided across borders.
46
In Ireland, such an ad would not be allowed on broadcast media but could be viewed online, while in Cyprus it would in
principle merely need to be labelled as paid for.
47
See Annex 8, especially internal market and consumer protection rules.
48
For instance, in HU the transparency requirements for political advertising that is allowed only apply to press products and
posters, whereas in SK the rules are framed so as to require disclosure of the identity of the sponsor for “broadcast political
advertising, published paid advertising, published election posters and all other methods of conducting an election
campaign” (emphasis added).
11
still differ strongly, for instance in terms of the amounts paid for the advertisement49
or of the
actors to be identified in the ad50
. Having to disclose different elements across Member States
requires having different versions of the same advertisement ready (or different transparency
notices), and when they are disseminated online it requires controlling carefully the audience
to which each version of the advertisement is shown.
Similarly, the few Member States which recently passed or intend to pass rules concerning
the transparency of targeting techniques also require different elements to be disclosed, some
going much further in terms of the explanation of the process behind the targeting
technique51
.
Beyond transparency disclosures in the advertisement itself, some Member States also require
some form of transparency through reporting obligations (either only from political actors, or
also from service providers) concerning the political advertising services contracted and
political advertisements circulated on their behalf52
.
Inconsistent rules not only drive fragmentation in the internal market directly, they also have
an indirect effect through private sector policies and service availability. Economic actors,
including Code of Practice on disinformation signatories, therefore respond to the increased
compliance risk and the uncertainty by applying different commercial strategies in their terms
of service regarding political ads, to adapt to the fragmented regulatory context and to limit
their liability in terms of compliance with different requirements53
. Such existing policies can
include opting not to provide services to actors established in other Member States (including
in the context of EU elections), or not providing services in more than one Member State, for
commercial reasons.
It was in this context that Facebook54
, as of the 2019 European parliamentary elections, took
the decision to require that political ads may only be disseminated in a Member State if the
can advertiser provides identification documentation or a proof of residence issued by the
state in question. This rule meant that for EUPPs to campaign online across the EU through
one of the main social media platforms, they would have had, on the basis of the contractual
49
For instance, an online platform in FR only has to disclose the amount paid for the promotion of an online advertisement if
it is superior to a specific threshold (€100), whereas a similar obligation of the forthcoming IE law foresees no such
threshold for online publishers.
50
A political advertisement (including online) run in in CZ, LT, FR or FI must bear the name of the sponsor and of the
publisher, but in SK their address is also to be disclosed, and the forthcoming IE rules also foresee the disclosure of their
email address and, where applicable, the website address of the buyer.
51
Whereas FI requires information as to why an advertisement is targeted at the person, and the identity of the person
responsible for advertising, FR requires information about the methods of distribution, the existence of financial
compensation, the extent of the distribution (number of views, type of target population, etc.), and whether they were
generated automatically or not. The forthcoming IE rules require the disclosure of information about targeting, including a
description of the criteria used and of the characteristics of the target audience.
52
HR requires political actors to report on donations they received (not only financial, but also in terms of services provided
free of charge) and on election campaign costs, requiring them to retain very specific information for each expenditure on
the purpose of the cost, the number of media services contracted and performed, the name of supplier, the name of the social
network, the OIB of the supplier, the address of the supplier, the date or period of advertising services, the invoice payment
date, the amount paid and the market value of the product or service used. In contrast, in RO the electoral competitors more
simply report on the description of the online electoral propaganda materials, their production, period and broadcasting
space. Moreover, in HR the reporting requirements also apply to providers of media advertising services, which have to
retain information on the contracts they have concluded with electoral participants in relation to their election campaigns.
53
Including Facebook/Instagram, Google/Youtube, Snap, Twitter, and TikTok – see Annex 7.
54
Snapchat and Microsoft imposed the same requirement as Facebook. Google permitted political ads in Europe for entities
established in one Member State. Twitter banned all political advertising. Each large platform applied its own definition of
political ads and its interpretation of the obligations applicable to advertisers seeking to use their services.
12
terms of a company, to be established in each Member State55
and administrate their
campaigns locally. This increased the cost of campaigning and limited the options available
to EUPPs56
and any other actor wishing to campaign on European issues or in more than one
EU Member State.
By taking such actions, private actors – in particular if they are gateway intermediaries – act
as de facto enablers and/or quasi-regulators of political ads57
. Their decisions can have the
effect of further partitioning the internal market or otherwise affecting its functioning58
. This
limits the choice of service providers available to actors wishing to sponsor political ads such
as political parties and candidates59
, including EUPPs.
Consequences: service providers can decide to limit the services they offer in some Member
States, or across borders altogether, because the costs of adapting their services to the
different regulatory requirements makes service provision unattractive.60
Stakeholders’ views: Feedback from stakeholders suggests that fragmentation of conditions for
providing services related to political ads disproportionally affect SMEs61
. SMEs are viewed as being
least able to both resource the legal due diligence necessary to provide services in more than one
Member State62
and comply with the requirement to be established in every Member State where a
political ad campaign is to run (as required by some Member States and certain large platforms).
2.2.1.2 Regulatory arbitrage and circumvention of relevant rules by providers offering
political ads services (regulatory failure) (Problem 1.2)
In the consultation, Member States’ competent authorities indicated that a concern in their
oversight of political ads during national electoral campaigns was the circumvention of
national rules. This happened through the delivery of political ads services, particularly
online, across borders within the internal market63
.
This problem is driven by differences in the:
55
Under Regulation 1141/2014 on the statute and funding of European political parties and foundations, EUPPs are only
required to be established in one Member State, and most are established in Belgium only.
56
Seven EUPPs co-signed a letter (https://europeangreens.eu/news/co-signed-letter-european-political-parties-addressed-
facebook-new-advertising-rules) asking Facebook to drop its advertising policy preventing cross-border advertising. The
conference of presidents of the European Parliament expressed concerns underlining that the measures imposed by the
companies ignore the pan-European nature of the EU institutions, European political groups and parties, which all operate in
the whole EU (see for instance https://www.politico.eu/article/facebook-european-elections-advertising-political-social-
media-europe/).
57
Political advertising is moving increasingly online and handled through services operated by a few very large platforms,
predominately Facebook and Google. This includes the ads published on their social media, video sharing and other services,
as well as programmatic advertising and other up and downstream services that they also provide. The key figures and trends
are presented in Annex 2 and in the underlying study.
58
Indeed, they are implemented on the basis of different private definitions of political ads, and may reduce transparency, as
platforms implementing such bans do not provide transparency about how they apply them, nor about the ads that they do
publish. See e.g. https://privacyinternational.org/long-read/3703/apart-google-facebook-and-twitter-what-are-other-
platforms-doing-about-political-ads as well as Annex 7, table 8.4.
59
Mentioned in the consultations both by political actors wishing to address diaspora communities in national elections, and
by political actors campaigning on the same platform in multiple states in the context of EP elections.
60
As reported in the stakeholder consultations by economic actors and in the interviews conducted by the contractor.
61
Underlying study.
62
This was estimated by industry respondents in the consultation to require at least 1 FTE from an appropriately qualified
legal advisor for each campaign.
63
Such activity was described in the consultation. It has also been reported in connection with specific recent elections, for
instance: https://www.opendemocracy.net/en/dark-money-investigations/did-dark-money-and-dirty-tactics-swing-scottish-
election/.
13
i. cost of complying with the transparency obligations in certain Member States, for instance as
regards specific disclosures, information retention or other steps64
.
ii. monitoring and enforcement of relevant rules. In certain Member States, the relevant rules are
not applicable or are not enforced, either online or outside of electoral periods. Cooperation
mechanisms to support enforcement are limited.
Uncertainty about which rules apply and a lack of information about online activity can also
drive differences in regulatory outcomes and hence the commercial decisions taken by
service providers (including those established outside the internal market) about their
political ad services.
Consequences: This tends to direct cross-border services away from more regulated Member
States65
towards less regulated ones, or where enforcement is limited.
The difficulty for Member State competent authorities to monitor ads in their jurisdiction and
enforce their rules for political ads originating from abroad is felt to be disadvantaging
domestic service providers in some Member States. Restrictions in Member States are being
considered to prevent the circulation of political ads from other Member States or from non-
EU countries66
.
The legal analysis confirms that such circumvention cannot be addressed by Member States
acting individually. While the introduction of the DSA will improve the overall transparency
of advertising and support cross-border oversight of the obligations it imposes, issues specific
to political ads will remain unresolved, including the need to cover the transparency of
programmatic ads, and to provide transparency of political ad spend and financing.
2.2.1.3 Additional regulatory burden for offline operators in political ads (Problem 1.3)
Member States regulate more those political ads which are disseminated through offline
media (radio, TV, print etc.) than those distributed online67
.
Offline operators therefore face a heavier regulatory burden than those working with
online political ads68
. This burden is increased if the services are delivered across borders
because the relative advantage of the lighter requirements of providing ad services online is
multiplied by the fragmentation costs. This also places EU-based service providers at a
64
This can also concern national regulation of other aspects than transparency, but transparency (or a lack thereof) is key to
enabling circumvention. E.g. in Spain, data processing (such as targeting) that attempts to influence [desviar] the will of
voters is prohibited by the DPA; see Annex 7. Political ads could therefore de facto not be targeted online in Spain under
certain conditions (for instance in connection with an election, or otherwise where the aim is influence voters), and
advertisers would have to ensure that ads do not unlawfully process personal data in Spain for this purpose.
65
Or from Member States where obligations are based on the applicability of a national electoral period.
66
E.g. Ireland is considering such a rule – see Annex 7.
67
The absence or weakness of regulation for online political ads contrasts with the regulation offline, given the increasing
shift to online campaigning. In Animal Defenders, the ECtHR reasoned that offline political ads could be subject to a stricter
regime than online ads on account of their specific characteristics, including their strong impact. The situation has evolved
since 2013, and online political ads are becoming more common and sophisticated. Stakeholders reported in the consultation
process that there is no level-playing field between offline (extensively regulated) and online (limited regulation if at all).
See above (footnote 49 on ECHR) and Annex 2 for details. Also, some Member States ban political ads in certain conditions
– see Annex 7. For instance, in Greece and Ireland, the ban is limited to broadcasting services, while political ads in print
and online are allowed.
68
E.g., some Member States regulate the labelling of political ads on broadcast media but do not have, or do not apply such
rules to online ads. See Annexes 6 and 8 for an analysis of the applicable framework, and Annex 9 for examples of how
these differences work in practice. See also points raised by interested industry associations in the consultation.
14
disadvantage to online service providers established outside the EU, who can avoid certain
compliance costs altogether69
.
Consequences: While not the only factor driving political ads online70
, these issues
contribute to the trend for political parties, candidates and groups to use online ads rather than
more strictly regulated offline media. This further distorts competition and favours a limited
number of large online operators.
2.2.2. Problems for democratic processes linked to internal market issues (Problem 2)
There is a substantial body of national regulation applicable to political ads, including
electoral and political party rules, political funding and transparency rules and regarding
relevant audiovisual media and other media services. There are also relevant EU rules. As
described in Section 2.2.1, in the Member States where political ads are permitted, specific
provisions condition the availability of political ads (regarding medium, period, actors etc.)
and their content (transparency and other rules)71
. These rules are specific to each Member
State and reflect their respective democratic traditions72
, which have in common principles
such as addressed by the Council of Europe’s Venice Commission73
. They seek to promote
free and fair elections and accountability in the democratic debate, including by ensuring that:
 a plurality of political actors have access to the means to communicate their message to voters;
 political actors campaign in the open and can be challenged on the claims they make;
 resources are used transparently74
;
 citizens are provided with the information they need to evaluate the political messages they
receive and make their minds up freely; and
 foreign actors and powerful commercial interests are not able to control the political debate.
Citizens, civil society and national authorities have indicated concerns that the monitoring
and enforcement of such rules in political ads is being eroded, especially online and across
borders, threatening the integrity of democratic processes.75
Practical examples of this
situation, such as those mentioned in the problem definition chapter, occur on an increasingly
regular basis. Beyond the EU instruments relevant to the regulation of political ads76
, the
European Commission has issued soft-law measures to help respond77
, but concerns remain.
These concerns are closely linked to the internal market issues related to the regulation of
transparency of political ads. Addressing them in this initiative will improve fundamental
69
Eurobarometer 25/03/2021 showed that eight in ten Europeans consider that online social networks and Internet platforms
should observe the same rules as traditional media in a pre-election period. https://fronteirasxxi.pt/wp-
content/uploads/2021/06/ebs_507_en.pdf
70
The relatively low price and high impact of online political ads, in particular when combined with targeting and other
amplification techniques available in the online context, are the main reason. See for instance EPD: A comprehensive plan to
innovate democracy in Europe. https://epd.eu/wp-content/uploads/2020/09/a-civil-society-vision-for-the-european-
democracy-action-plan-input-paper.pdf
71
See Annex 7 for a presentation of the availability and content of relevant national legislation in this area.
72
In particular, the balance between national institutions, political actors, citizens as voters, and other actors such as
journalists and civil society more broadly, that contributes to the democratic debate and oversight.
73
Cf. Venice Commission code of practice in electoral matters, referred above.
https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2002)023rev2-cor-e
74
This is linked to the fact that access to resources is often regulated.
75
See also Council of Europe ‘Internet And Electoral Campaigns: Study on the use of internet in electoral campaigns’
https://rm.coe.int/use-of-internet-in-electoral-campaigns-/16807c0e24
76
See 2.1 above and Annex 8.
77
Commission 2018 electoral package; Code of Practice on Disinformation.
15
rights (see section 6). They are also relevant for problem 2.3. They are summarised below
and presented in more detail in Annex 5, section 2.
2.2.2.1. Negative impacts of current framework on regulatory outcomes across borders
(Problem 2.1)
The differences and gaps in national regulation and self-regulation (detailed in Annex 7)
result in poor regulatory outcomes for cross-border campaigns, in particular regarding non-
recognisability of political ads by individuals, lack of accountability in the debate and risk
of electorate illicit manipulation.
This problem has the following drivers:
 Societal and political actors lack information to hold political actors and parties
accountable on their online political ads activities and thereby play their role in the
democratic process.
 Political actors are unable to exercise mutual scrutiny and Member States have difficulties
to monitor and enforce relevant rules which they have adopted to protect the public
interest.
 Limited legislation providing insufficient information, especially online.
 Insufficient information provided by the various actors, and ineffective collaboration
between national authorities and economic actors78
.
Consequences: All stakeholder groups underlined the negative impact of the poor regulatory
outcomes on democratic processes and on public trust in political ads. It has prompted some
Member States to unilaterally prepare relevant legislation. These Member States and others
have also indicated that neither national regulation nor self-regulation are likely to be
effective in addressing the cross-border aspect of this problem without a sufficient EU
framework to support them.
2.2.2.2 Targeting techniques in online political ads create problems for citizens and for the
democratic process (Problem 2.2)
Online political advertising are different from traditional political campaigning due to the
actors involved (including foreign-based actors from inside or outside the EU), the type of
media being used (by nature not confined to national border) and the possibility to use
techniques tailoring the information provided to different audiences without the possibility to
consult what other audiences have been exposed to. This allows a political actor to highlight a
different issue for each voter, leading to a different perception of the actor’s priorities79
.
These techniques altering or tailoring the visibility of ads can be very elaborated, and can be
based on extensive knowledge about individuals, including their vulnerabilities, with the aim
to impact voters’ behaviour. Further, the same tools that allow people to be targeted can also
be used to exclude people from messages that, in a democracy, they have a right to hear.
Targeting online greatly differs from targeting offline. While advertisers will aim to promote
their information in specific journals, TV channels, locations etc. based on the categories of
the groups that gather there (which amounts to a certain form of targeting), online advertising
allows for a selection of audience that is both much narrower (to the level of micro-groups, or
78
See Annex 5.
79
The future of online advertising, a study by Duncan Mccann, Will Stronge, Phil Jones. https://www.greens-
efa.eu/en/article/document/the-future-of-online-advertising
16
even individuals) and less evident to those exposed to it – also because the targeted groups
will be ad hoc80
. Beside the level of granularity that can be achieved and the level of
knowledge about each individual targeted, online ads can also be targeted to appear at
specific moments in specific places designed to exploit the moments where they will be most
sensitive to certain kind of information, hence manipulation.
Online advertising and advanced data processing and analysis thus enable a number of
techniques to target and amplify the impact of political ads81
. The personal data can come
from a number of sources, such as online activity, surveys, the electoral roll etc., and is used
for a number of purposes, including to plan campaigns and shape messages, as well as to
establish the criteria for the targeting of programmatic ads, etc.
Recent elections in the EU have shown that the impact and the use of targeting is
increasing82
, and targeted ads account for an increasing proportion of overall political
campaign spending83
. Despite the existence of comprehensive common EU data protection
rules and guidance, transparency on the use of such targeting techniques remains insufficient.
This includes for instance the amounts being spent in such techniques and publically
available information on the techniques used84
. Political ads can avoid scrutiny by being
narrowly targeted to (and hence only visible by) certain audiences or profiles, allowing
political actors to make irreconcilable promises to different segments of the electorate and
manipulate the public85
. The absence of due transparency about the targeting behind a
political ad exposes individuals to a greater risk of being manipulated. More details of such
abusive and sometimes unlawful practices related to these techniques are documented in the
literature86
and public concerns have been expressed87
– with targeting of political ads being
argued to be problematic per se88
, even in the absence of psychographic profiling techniques
such as used by Cambridge Analytica. The use of sensitive categories of personal data is also
considered problematic and liable to misuse; the public in particular is opposed to
microtargeting that is about certain content, including political advertising, or based on
80
While a reader of a left-wing magazine will understand that all readers of this magazine are deemed of interest, and
therefore exposed to the promotional information of specific advertisers because the reader base of this medium, targeting
online focuses on ad-hoc groups which share specific, often apparently unrelated characteristics, and based on (sometimes
extensive amounts of) information about the individual – with ads which may reach (or follow) the individual throughout the
web regardless of the website visited.
81
For a summary, see for instance Council of Europe ‘Internet And Electoral Campaigns: Study on the use of internet in
electoral campaigns’ https://rm.coe.int/use-of-internet-in-electoral-campaigns-/16807c0e24, section 4.
82
IDEA (2020), Online Political Advertising and Microtargeting: the latest legal, ethical, political and technological
evolutions. Webinar Series Report https://www.idea.int/publications/catalogue/online-political-advertising-and-
microtargeting-latest-legal-ethical; and UNESCO report Elections and Media in Digital Times.
https://unesdoc.unesco.org/ark:/48223/pf0000371486/PDF/371486eng.pdf.multi
83
See underlying Study.
84
This is increasingly a focus for standards-setting bodies and civil society. See for instance Council of Europe Toolkit for
Civil Society organisations: Monitoring Of Media Coverage Of Elections’ https://rm.coe.int/monitoring-of-media-coverage-
of-elections-toolkit-for-civil-society-or/1680a06bc6
85
IDEA (2020). Online Political Advertising and Microtargeting: the latest legal, ethical, political and technological
evolutions (referred to above).
86
(Micro)Targeting can easily conceal its intent and nature, making difficult to estimate the size and scale of the problem.
See underlying study.
87
Kozyreva, A., Lorenz-Spreen, P., Hertwig, R. et al., Public attitudes towards algorithmic personalization and use of
personal data online: evidence from Germany, Great Britain, and the United States. Humanit Soc Sci Commun 8, 117
(2021). https://doi.org/10.1057/s41599-021-00787-w
88
Dobber, T. & Ó Fathaigh, R. & Zuiderveen Borgesius, F. J. (2019). The regulation of online political micro-targeting in
Europe. Internet Policy Review, 8(4). https://policyreview.info/articles/analysis/regulation-online-political-micro-targeting-
europe
17
certain sensitive attributes including political affiliation89
. Watchdog organisations and
national authorities appear unable to oversee this activity effectively, and are calling for
action to revise rules on political ads to address the implications of targeting90
. These
practices create particular horizontal problems for citizens and the democratic process.
National rules on political ads can also be engaged by targeting activity, and new national
measures are being considered, but they will not address the cross-border nature of this issue
and are unlikely to be effective. Annexes 7 and 8 present the relevant national and EU
provisions, and point to the gaps and challenges.
Consequences: The way targeting (and amplification) techniques are used with political
advertising, and the limited transparency and control applied to them undermines trust in the
use of such services among citizens and government authorities, and has a knock-on effect on
perceptions of the integrity of elections and the democratic process. Member State and
private sector actions in response have been driven by the association of targeting of political
ads with foreign interference and disinformation. While these actions have limited the
availability of services, they have not provided effective solutions to the problems associated
with using targeted political ads. Proposals in the European Parliament91
, the EDPS92
and at
national level have included banning targeting.
2.2.2.3. Member States are unable to monitor and enforce transparency of political ads, and
other relevant rules (Problem 2.3)
National competent authorities encounter challenges with monitoring and enforcing relevant
rules connected to political ads, particularly online and across borders driven by:
Lack of resources, capacity, competence regarding political ads: The lack of appropriate
powers and resources is raised by both civil society and international organisations93
. The
89
Kozyreva, A., Lorenz-Spreen, P., Hertwig, R., Lewandowsky, S. & Herzog, S. M. Public attitudes towards algorithmic
personalization and use of personal data online: Evidence from Germany, Great Britain, and the United States. Humanit.
Soc. Sci. Commun. 8, 1–11 (2021).
90
See Joint Report of the Venice Commission and of the Directorate of Information Society and Action against Crime of the
Directorate General of Human Rights and Rule of Law (DGI), on Digital Technologies and Elections, adopted by the
Council of Democratic Elections at its 65th meeting (Venice, 20 June 2019) and by the Venice Commission at its 119th
Plenary Session (Venice, 21-22 June 2019) CDL-AD(2019)016-e; and Declaration of the Committee of Ministers of the
Council of Europe. https://ccdcoe.org/uploads/2019/09/CoE-190213-Declaration-on-manipulative-capabilities-of-
algorithmic-processes.pdf
91
European Parliament resolution of 20 October 2020 with recommendations to the Commission on a Digital Services Act:
adapting commercial and civil law rules for commercial entities operating online, paragraph 17
https://www.europarl.europa.eu/doceo/document/TA-9-2020-0273_EN.html
European Parliament resolution of 20 October 2020 with recommendations to the Commission on the Digital Services Act:
Improving the functioning of the Single Market (2020/2018(INL)), paragraph 33
https://www.europarl.europa.eu/doceo/document/TA-9-2020-0272_EN.pdf
92
https://edps.europa.eu/system/files/2021-02/21-02-10-opinion_on_digital_services_act_en.pdf
93
This confirmed by a review of OSCE reports on elections in Member States in the past years. For example, in Italy,
Regional Electoral Guarantee Boards reported a lack of capacity to verify candidate’s campaign finance reports.
Furthermore, it was mentioned that competent bodies lack the power and resources to conduct an efficient supervision,
investigation and enforcement of political finance regulation: OSCE/ODIHR (2018), Italian Republic Parliamentary
elections 4 March 2018 ODIHR Election Assessment Mission Final Report.
https://www.osce.org/files/f/documents/9/5/383589_1.pdf. Similar issues were mentioned for Portugal, Bulgaria, Latvia and
Slovenia: OSCE/ODIHR (2020), Portugal Presidential Election 24 January 2021, ODIHR Needs Assessment Mission
Report. https://www.osce.org/files/f/documents/c/a/473994_1.pdf; OSCE/ODIHR (2021), Republic of Bulgaria
Parliamentary Elections 4 April 2021 ODIHR Needs Assessment Mission Report.
https://www.osce.org/files/f/documents/6/0/476866_0.pdf; OSCE/ODIHR (2019), Republic of Latvia Parliamentary
18
legal mapping in Annexes 8 and in the underlying study shows that only few national
authorities and bodies are empowered to supervise online political ads.
Extraterritorial nature of the enforcement of online political ads: National authorities and
bodies reported insufficient capabilities for oversight of political advertising across borders,
while the market for political ads is becoming increasingly cross-border. National rules
cannot easily be enforced across borders. With the exception of the voluntary exchanges of
information and practices in the European cooperation network on elections (ECNE),
Member States reported little cooperation among authorities on these specific topic. EU law
provides for oversight mechanisms related to specific aspects of activity relevant to political
ads (see Annex 8).
Insufficient coordination on political ads among national authorities: Outside of EU-
coordinated governance, including under the GDPR or as envisaged for the DSA, the legal
mapping describes the diversity of existing authorities and bodies in the different Member
States, all playing a role based on different legal acts. The OSCE reports on EU Member
States’ elections provide various examples of insufficient coordination in this area.
First impact: Fragmented enforcement of rules and fragmentation of sanctions applicable
at national level: The lack of capacity and knowhow by national competent authorities to
properly enforce legislation, as well as the insufficient coordination between these bodies,
affect enforcement at national level.
Second impact: Use of undeclared sources and interference by foreign actors: Difficulties
exist with the lack of transparency including the financing used to conduct political
advertising across borders. This enables foreign state and non-state actors to manipulate and
interfere in the democratic debate and elections in the European Union.
2.2.3. Political parties in the EU: insufficient and inconsistent transparency (Problem 3)
Political parties in the EU do not provide enough information about their advertising for
citizens to recognise them as political advertising, to know how much money was spent on
them, what techniques were used to target and amplify them, or to identify which parties and
campaigns they are affiliated with. Insofar as this problem relates to the activities of national
political parties, it is already discussed in problem 2 (especially on targeting and on the
enforcement of national rules), and the rest of problem 3 will therefore focus on EUPPs.
This issue is relevant for EUPPs as their campaigning activity grows94
and they increasingly
campaign cross borders on ‘European political issues’95
. The main driver for this is that EU
Elections 6 October 2018 ODIHR Election Assessment Mission Final Report.
https://www.osce.org/files/Latvia%202018%20parliamentary_final%20report_17.01.2019.pdf; OSCE/ODIHR (2018),
Republic of Slovenia Early parliamentary elections 3 June 2018 ODIHR Election Assessment Mission Final Report.
https://www.osce.org/files/f/documents/0/d/394106.pdf.
94
Annual funding for EUPPs has increased from under EUR 10 million in 2004 to around EUR 50 million in 2021. Both the
individual party audit reports on the EP’s DG Finance website and the EUPPs’ annual financial statements indicate that
advertising activities of various kinds (on print, audiovisual, telecommunications and online media) account for a significant
part of expenditure. This point was also reflected in the consultation. EUPPs’ expenditure on these various kinds of ads is
compared over time in Annex 5, section 2.6. (referred websites: https://www.europarl.europa.eu/contracts-and-
grants/en/political-parties-and-foundations/audit-reports-and-donations and
https://www.europarl.europa.eu/groups/accounts_en.htm).
95
As reported in the Commission’s 2019 European Parliamentary elections report, p 13.
19
rules applicable to EUPPs do not provide for specific transparency for political ads, when
disclosed to citizens. Further national rules are heterogeneous and generally not enforced for
political advertising sponsored by EUPPs. This may be related to a focus placed by national
oversight bodies on national campaigns. EUPPs and European political foundations are
regulated by Regulation 1141/2014, with national law otherwise being applicable96
. The
Regulation regulates the statutes and funding of EUPPs97
and does not directly address the
transparency of political ads. It obliges European political foundations to use their funding
activities only for a closed list of tasks, which does not include political advertising as such98
.
The Regulation also prohibits EUPPs from (i) directly or indirectly funding other political
parties, and in particular national parties or candidates, and (ii) financing referendum
campaigns99
. The Regulation provides for verification of compliance with certain registration
conditions and requirements100
, and on infringements of rules on the protection of personal
data101
.
Regulation 1141/2014 includes transparency obligations in relation to financing and
expenditure for electoral campaigns, published in annual financial statements102
. It also
requires the Authority competent for EUPPs to provide on its website information about
contributions and donations collected from EUPPs103
. The Authority does provide some non-
binding recommendations104
, however without follow-up monitoring of compliance. Further,
the Recommendation accompanying the Commission’s 2018 Electoral package
recommended that EUPPs take steps to provide a range of information about their
advertising, including about targeting105
.
Consequences: In the 2019 European Parliamentary elections, the EUPPs did not effectively
deliver the level of transparency recommended in the 2018 elections package106
. While most
96
This Regulation is evaluated within the scope of another Commission initiative (https://ec.europa.eu/info/law/better-
regulation/have-your-say/initiatives/12811-European-political-parties-and-foundations-review-of-rules-on-legal-status-and-
funding_en), which also takes into account the European Parliament’s ex-post evaluation of the regulation
(https://www.europarl.europa.eu/RegData/etudes/STUD/2021/662646/EPRS_STU(2021)662646_EN.pdf). Neither consider
the operation of the Regulation from the perspective of political ads, and this aspect is detailed here.
97
This concerns in particular their registration and financing, which are overseen by a specially established Authority and
DG Finance of the European Parliament.
98
In other words, European political foundations are prohibited from running political ads. European political parties,
however, are not.
99
Entities bound by Regulation must observe in their programme the values for which the Union is founded including
democracy and respect for fundamental rights.
100
Article 10 of the Regulation. This includes to observe the values on which the Union is founded.
101
In 2018 the Regulation was amended to include a procedure under Article 10a to enable the Authority to take note of such
violations notified by a national competent authority and refer such case to a committee of independent eminent persons
established by Article 11, for a potential recommendation for the application of sanctions.
102
In which EUPPs usually distinguish between expenditure on print, audiovisual and online ads. They have to be made
available to the public by the European Parliament https://www.europarl.europa.eu/groups/accounts_en.htm.
103
This obligation is provided in Article 32(1)(e) and (f) of the Regulation, and such information is accessible via this
dedicated website: Donations and contributions / Authority for European political parties and European political foundations
– European Parliament http://www.appf.europa.eu/appf/en/donations-and-contributions.
104
The Authority for EUPPs prepared a number of principles for the scope, content and transparency of political campaigns
organised by EUPPs. See for instance the Authority’s 2020 activity report, which sets out these principles, and indicates
them as inspiration for legislative reforms to the current framework.
http://www.appf.europa.eu/cmsdata/238104/2020_AnnualActivityReport_AuthorityEUPPsEUPFs.pdf
105
Which included the labelling of political ads to enable a person to recognise them as such, the publication of their logo or
name in an ad, and information about the amounts spent, the circulation of the ads (impressions, distribution), and
information on the use of targeting or other methods: https://ec.europa.eu/info/sites/default/files/soteu2018-cybersecurity-
elections-recommendation-5949_en.pdf
106
Commission’s 2019 European Parliamentary elections report. Only the logos on online and offline political ads by some
of the larger parties were made accessible to citizens. The Logos project further reports that national member parties largely
20
political advertisements sponsored by the EUPPs merely aimed to raise awareness of the
European elections and promoted electoral participation, the EUPPs did make increased use
of targeted political advertising to cover substance issues like climate change107
.
For the future, the European Parliament has indicated its intention to further strengthen the
European dimension of the European elections. On this basis, it is to be expected that the
proportion of political ads sponsored by EUPPs that address European political themes will
increase. In this context, the need for transparency of political ads to ensure accountability in
the democratic process would increase, which may prompt Member States to seek to enforce
national rules in connection with political ads at European level.
A parallel revision of Regulation 1141/2014 proposes substantive rules to strengthen the
European dimension and protection of rights and values in the European political process,
including issues identified in the overall governance. That initiative and the one considered
for EUPPs in the present impact assessment reinforce each other, with the former clarifying
among other rules on how EUPPS can receive funding, and the latter increasing transparency
and accountability on the origin of the funds and spending in the context of political
advertising.
2.3. How will the problems evolve?
An increasing number of internal market issues are expected to be identified in the provision
of cross-border political ads services. Offline political ads will continue to be seen as more
burdensome and less attractive. The proportion of political ads which will be published online
and which could a priori be provided by cross-border operators is likely to increase. Cross-
border services will continue to be affected by the costs of fragmentation, and this will
continue to further concentrating advertising business towards the limited number of very
large providers able to absorb the compliance costs and/or position themselves to benefit
from the lighter regulation in certain Member States. This, together with the fact that
increased fragmentation and costs will affect the possibilities for SMEs to enter in this
market, was reported by stakeholders as problematic.
The cross-border dimension of political ads should further increase, as the number of mobile
EU citizens exercising their electoral rights across borders is on the rise. Political parties will
increasingly conduct cross-border campaigns, for instance on European themes like climate
change. These trends will make more acute the problematic regulation of political ads
services as well as inconsistencies and gaps in the regulation of ads, especially political
parties. Additional enforcement of national political campaigning rules on political ads
sponsored by political parties, would further increase fragmentation and deter European
political campaigns. In light of the Parliament’s explicit request to strengthen respect for
democratic principles including transparency108
, political parties may act voluntarily to
fail to implement the Regulation’s display requirement and ensuring the necessary visibility of their link to their European
party of affiliation. https://eudemocracy.eu/logos-project
107
See Commission’s 2019 European Parliamentary elections report, p. 13.
https://ec.europa.eu/info/sites/default/files/com_2020_252_en_0.pdf
108
See draft report of the AFCO Committee on the reform of the Electoral Law of the European Union (2020/2220(INL)) at:
https://www.europarl.europa.eu/doceo/document/AFCO-PR-693622_EN.pdf The draft includes a draft recital that ‘the goal
of more transparency in political advertising and communication should also be reflected in the provisions of the Electoral
Law’; see also the European Parliament resolution of 7 October 2020 on the establishment of an EU Mechanism on
Democracy, the Rule of Law and Fundamental Rights https://www.europarl.europa.eu/doceo/document/TA-9-2020-
0251_EN.html
21
implement the 2018 transparency recommendations for their political ads. Efforts could be
made to apply national (in most cases Belgian law109
) provisions to European parties in this
respect, though national provisions would only apply within their national scope.
As political ads move increasingly online, regulatory outcomes from national legislation will
continue to be poor. The disparity of the national requirements in the internal market is likely
to increase110
together with inconsistent across national jurisdictions or ineffective
enforcement. This will add legal uncertainty and costs for service providers.
As indicated in Section 2.1 above, while its scope is different, the DSA will already
significantly enhance the transparency of ads on online platforms111
. The DSA will not,
however, regulate political ads displayed on other services or provided and produced by other
services, nor on offline political ads. The information that it requires to be published with all
ads will not include spending information and other elements identified as relevant to
political ads.
Signatories of the existing Code of Practice on Disinformation provide information on ad
spend in their political ad repositories112
. While it will continue to evolve under the Guidance
of the Commission, the Code needs to be complemented with relevant binding obligations
related to the specific area of political ads to ensure a level playing field in the internal
market, consistent regulation and the protection of rights113
.
While the DSA represents a significant step forward in the governance of many relevant
online activities114
, including the collection of information from online intermediaries115
, the
oversight it establishes is linked to the substantive obligations in the DSA itself and its
addressees, and will thus not cover all the service providers and activities involved in
political ads116
.
Unauthorised actors will continue to interfere in the EU’s democratic debate and manipulate
the information environment, threatening its democratic processes. This is especially harmful
during electoral periods. With rapidly evolving technologies and tools that facilitate the
109
For instance, in this context Belgian law includes a definition of political ads during a pre-election period and certain
limits to its use, supervised by a national authority. This authority does not currently oversee the campaigning activities
conducted by EUPPs.
110
The rapid spread of targeting and its potential to affect democratic discourse have also triggered Member State actions to
complement the existing legal frameworks. Ireland in particular is preparing a law which could impact the cross-border
provision of services, i.e. the placement of ads by non-Irish EU citizens and companies. General Scheme of the Electoral
Reform Bill 2020, pp233-261. The Netherlands is also preparing specific rules focused on transparency in advertising, and
other Member States, such as Sweden, are considering options: see for instance
https://www.academia.edu/37352763/CYBER_SECURITY__How_can_the_Swedish_Government_prevent_Political_Micr
oTargeting_from_threatening_the_Electoral_Process_A_Policy_Memo_Security_Policy_and_Strategy_in_Cyber_Space
Member States are likely to reserve certain activities for national providers or to impose specific national requirements.
111
See section 5.1 on the baseline scenario, and Annex 8 for more details on the DSA, where the overlap and differences
with this initiative are laid out.
112
With the proposed DSA, the Code of Practice will be complemented with regulatory oversight.
113
Assessment of the Code of Practice on Disinformation.
114
The Member State where a service provider is mainly established would be in charge of monitoring and enforcement of
the DSA. Each Member State would designate one or more competent authorities to do this. Designated national authorities
for monitoring and enforcement would be coordinated by an EU level Board. The DSA also provides for joint investigations
and inter-Member State cooperation, as well as corresponding obligations on service providers to provide duly ordered
information to competent authorities.
115
Where they already enjoy a power to order that such information be provided.
116
Notably ad intermediaries involved in programmatic advertising.
22
manipulation of the debate online, in particular artificial amplification and engagement,
increased transparency of political ads is crucial to safeguard the integrity of EU elections.
Finally, competent authorities will have increasing difficulty in exercising oversight due to
the lack of accessible data from service providers, to support their interventions in case of
unlawful behaviours affecting electoral campaigns in their country. Problematic activities will
continue in areas where gaps exist, and the risk of interference in elections through the
misuse of political ads will persist. The existing cooperation structures among competent
authorities at European level on their side will be unable to sufficiently address the problems
identified117
.
What are the consequences of the problem? The above-described issues are crosscutting
and would continue to affect negatively the Internal Market for political ads and fair
democratic processes in Europe.
3. WHY SHOULD THE EU ACT?
3.1. Legal basis
Any legislative intervention at the EU level must relate the competences of the Union
legislator.
Article 114 of the Treaty on the Functioning of the European Union (TFEU) enables
measures for the approximation of the provisions laid down by law, regulation or
administrative action in the Member States which have as their object the establishment and
functioning of the internal market. It is the appropriate legal basis for an intervention
covering service providers in the internal market and address differences between Member
States’ provisions which obstruct the fundamental freedoms and have a direct effect on the
functioning of the internal market118
. Differences in national laws exist and the national laws
develop, given that some Member States have legislated or intend to legislate on political ads.
By harmonising requirements applicable to transparency and the targeting of political ads on
the basis of Article 114 TFEU (approximation of laws for the improvement of the internal
market), the initiative will remove certain existing obstacles and genuinely enhance the
functioning of the internal market.
Article 114 TFEU does not presuppose the existence of a link with the free movement of
services in every situation covered by the measures founded on that basis119
. It permits
additional objectives to be pursued120
. It is logic that measures based on Article 114 TFEU
117
The main available structures are ECNE and ERGA, which provides coordination for the implementation of the AVMSD
– but the authorities composing ERGA may not have been tasked nationally with the oversight of electoral rules, which
means ERGA could be partly useful, but will not assuredly be able to always provide the necessary information. The
coordination mechanism under the GDPR, in turn, includes the One-Stop-Shop and lead authorities, cooperation among
DPAs and under the EDPB, as well as a dispute-resolution mechanism; it is more effective, though it, too, faces structural
issues. Its center of gravity however covers the processing of personal data.
118
See, e.g., Case C-547/14, the Queen, on the application of:Philip Morris Brands SARL,Philip Morris Ltd British
American Tobacco UK Ltd v. The Secretary of State for Health,, EU:C:2016:325, paragraph 58
119
See Joined Cases C-465/00 and C-138/01 Österreichischer Rundfunk and Others, EU:C:2003:294, paragraphs 41 and 42.
In this case, the Court of Justice ruled that the Data Protection Directive 95/46/EC (at that time based on Article 100A of the
Treaty establishing the European Community) could be applied even though it applied to a wholly internal situation. See also
Case C-101/01 Lindqvist EU:C:2003:596 , paragraphs 40 and 41.
120
Case C-158/96 Kohll v. Union des caisses de maladie, EU:C:1998:171; Case C=120/95 Decker v. Caisse de maladie des
employés privés, EU:C:1998:167, Case C-377/98 Netherlands v Parliament, ECLI:EU:C:2001:523, paragraph 27 and Case
C-300/89, Commission v Council, ECLI:EU:C:1991:244, paragraph 13.
23
touch upon many different areas, because the economic and the non-economic aspects are
many times closely intertwined. As confirmed by the Court, the EU legislature cannot be
prevented from relying on that legal basis on the ground that the protection of other policy
objectives is a decisive factor in the choices to be made121
. What is relevant is that the
measures adopted on that basis be actually intended to improve the conditions for
establishment and functioning of the internal market122
. In its settled case law on the use of
Article 114 TFEU123
, the Court does not engage in weighing the importance of the internal
market and the other objectives pursued. What the Court focuses its analysis on is on the
fulfilment of the conditions for the use of Article 114 TFEU, i.e., that the measure in question
effectively pursues the internal market objective. Some examples in the EU acquis in which
Article 114 TFEU has been used as a legal basis for measures that pursue other objectives
apart from the improvement of the internal market include, for instance, Regulation
1007/2009 on trade in seal products124
, Directive 98/44 on the legal protection of
biotechnological inventions125
, and the Consumer Credit Directive 2008/48/EC126
.
Article 114 TFEU is also relevant to provide obligations on service providers established
outside the EU where their service provision affects the internal market, when this is
necessary for the desired internal market goal pursued.
Article 16 TFEU permits the Union legislator to enact rules relating to the protection of
individuals as regards processing personal data by Union institutions, bodies, offices and
agencies, and by the Member States when carrying out activities falling within the scope of
Union law, and rules related to the free movement of such data. As the current initiative seeks
to address problems specific to the use of personal data in political ads (in particular
regarding their targeting), intervention will also be based on this provision.
Article 224 TFEU is also relevant to provide for transparency standards applicable to EUPPs.
On this basis, regulations governing EUPPs at EU level can be laid down
3.2. Subsidiarity: Necessity of EU action
According to the principle of subsidiarity laid down in Article 5(3) of the Treaty on European
Union (TEU), action at EU level should be taken only when the aims envisaged cannot be
achieved sufficiently by Member States alone and can therefore, by reason of the scale or
effects of the proposed action, be better achieved by the EU. Several Member States have
legislated or are about to legislate in the field of transparency of political ads to protect their
electoral processes127
. As these rules diverge in their scope, content and effect, a patchy
framework of national rules is appearing and risks to increase. This jeopardises an effective
exercise of the freedom of establishment and the freedom to provide services in the EU. Only
121
See C-491/01 The Queen v Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and
Imperial Tobacco Ltd. EU:C:2002:741, where the policy objective at hand was public health protection.
122
Ibid, paragraph 60.
123
Ibid.
124
Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal
products (Text with EEA relevance)
125
Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of
biotechnological inventions
126
Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for
consumers and repealing Council Directive 87/102/EEC
127
Ireland, the Netherlands and Sweden in particular (see Annex 7). Further, already today, a number of Member States,
such as Germany, Austria, Denmark or France, have adopted or are in the process of adopting new laws to regulate digital
services in relation to political advertising.
24
intervention at European level can solve this problem, as regulation at national level is aimed
at ensuring transparency and protecting the electoral process, with therefore little concern for
the barriers erected to cross-border political advertising services in this exercise of otherwise
national competence. Furthermore, the cross-border nature of activities, including in the
online environment, creates significant challenges which purely national regulation in this
domain would not be able to address. It is unlikely that Member States acting independently
would be able to effectively address the identified problems, except eventually if they (like
Ireland does) decide to prohibit cross-border political advertising – something which further
fragments the internal market. The Commission already highlighted the need for EU action in
this area ahead of, and following the 2019 European Parliamentary elections, in the
framework of the 2018 elections package.128
This need for EU action was also demonstrated
by the action of certain economic actors providing political ads and related services and of
the political actors making use of them. During the European elections, some large online
platforms took steps to address the challenge presented by legal uncertainty and
fragmentation of the internal market, by only servicing discrete Member State markets,
essentially partitioning it. This proved a significant issue for political parties seeking to
publish political ads EU-wide129
.
The competence to lay down regulations governing EUPPs resides with the EU.
Further, the envisaged policy options do not go beyond what is necessary to achieve the
identified objectives not affecting the competence of Member States to organise elections.
Subsidiarity is not only respected, but proportionality as well.
3.3. Subsidiarity: Added value of EU action
The initiative will only address activities where EU action is necessary for the functioning of
the internal market, for a high standard of data protection in targeting practices, and to
specify the transparency requirements for EUPPs. EU common standards for political ads and
related services would bring enhanced legal certainty especially for service providers. The
incremental compliance costs of delivering a service across borders would be removed, and
the non-compliance risk reduced. This in turn would remove the incentive for economic
actors to partition the internal market, provide a fresh incentive for the provision of cross-
border services and for the development of new ones. EU rights, including fundamental rights
would also be protected more effectively.
In contrast, the effects of any action taken under national law would be limited to a single
Member State and would risk being circumvented or difficult to oversee in relation to service
providers from other Member States, and could conflict with the internal market. This does
not address the EU-wide problems identified, and can also exacerbate the effects of
fragmentation. An EU system would also help competent authorities in their oversight
functions, other stakeholders to exercise their role in the democratic process and increase the
128
https://ec.europa.eu/commission/presscorner/detail/en/IP_18_5681
129
This was reported by economic actors, EUPPs and national political parties which campaigned in more than one Member
State, such as Diem-25 and Volt.
25
overall resilience of the European Union to information manipulation and interference in
electoral processes, including disinformation130
.
4. OBJECTIVES: WHAT IS TO BE ACHIEVED?
4.1.General objectives
There are two general objectives:
1. Facilitate the provision of political advertising and related services in the internal market
while supporting fair democratic processes based on high and harmonised transparency
standards and lawful use of targeting techniques131
.
2. Provide for high transparency standards for political parties in the EU supporting free and
fair elections.
4.2. Specific objectives
General objective 1: Facilitate the provision of political advertising and related services in the internal
market while supporting fair democratic processes based on high transparency standards and lawful use of
targeting techniques
Specific objectives132
:
1) Reduce legal fragmentation, limit circumvention of regulation and regulatory arbitrage and
remove obstacles and reduce costs for the provision of cross-border services;
2) Define high transparency standards for political ads (including issues ads), in particular to ensure that:
i. Individuals are sufficiently aware of the nature of online political ads and can recognise online
political ads and distinguish them from other types of online content;
ii. Interested actors – civil society organisations, academia, elections observers, journalists and
political actors – have sufficient information to hold political actors accountable;
iii. Member States competent authorities and EU authorities133
have sufficient information on
online political ads activities to take informed decisions on online political ads;
iv. Societal trust in the internal market for political ads increases.
3) Address specific data protection risks emerging from the use of some targeting and amplification
techniques, also in order to support fair elections and a fair democratic debate, and to ensure that the
newly harmonised market for political advertising is not fragmented by rules regulating targeting.
4) Ensure the effective oversight of the envisaged obligations and strengthen regulatory outcomes;
General objective 2: Provide for high transparency standards for political parties in the EU, supporting
fair democratic processes
130
The EU could act as a standard-setter for measures to promote democracy as a key value in the EU and the transparency
of political ads globally and improve cooperation with like-minded third countries and international organisations.
131
Standards on the use of targeting will also be coupled to the objective of achieving a high protection of personal data in
political advertising practices.
132
Note that reaching these objectives will also increase resilience against foreign information manipulation and interference.
133
E.g. in the enforcement of the GDPR or the DSA. A lead authority should be designated for the monitoring and
enforcement of the provisions of this initiative where more than one could be competent without prejudice to the provisions
on independent supervisory authorities and cooperation in Chapters VI and VII of the GDPR.
26
Specific objectives:
5) Promote stronger transparency and free and fair elections through compliance with relevant rules
among political parties in the EU, through binding rules, where the EU has competence (i.e. for EUPPs),
in particular to ensure that:
i. transparency and accountability in political campaigning is promoted among political actors;
ii. resilience to manipulation and interference in the democratic debate is strengthened;
iii. the European dimension of European parliamentary elections is supported through the
establishment of clearer rules for cross-border political ads;
iv. public awareness of political ads, of the techniques associated with it and of the applicable rules
governing it, is promoted.
The Intervention Logic (relations between drivers, problems, consequences, general and
specific EU objectives, options and expected impacts) is depicted graphically in Annex 6.
5. WHAT ARE THE AVAILABLE POLICY OPTIONS
5.1. What is the baseline from which options are assessed?134
Under the baseline scenario, the EU regulatory framework will evolve, particularly as regards
information society services, though specific legislation to fully address the issues identified
would not be introduced. Once the DSA enters into application, it will clarify responsibilities
and accountability for providers of intermediary services, and in particular online platforms,
such as social media and marketplaces. Certain intermediary services135
would be subject to
additional due diligence requirements, including notice-and-action procedures for illegal
content – including illegal ads. Online marketplaces would be obliged to collect, store and
partially verify and publish information on traders using their services to ensure a safer and
more transparent online environment for consumers136
. Further, ads published on online
platforms will be clearly distinguished from other content, would directly disclose the
advertiser as well as ‘meaningful information about the main parameters used to determine
the recipient to whom the advertisement is displayed’. VLOPs will also publish ad
repositories, including ‘whether the ad was intended to be displayed specifically to one or
more particular groups of recipients of the service and if so, the main parameters used for that
purpose’, making this information available for e.g. vetted researchers or authorities. Further
access to data by vetted researchers would also be possible. No information will be provided
about the the political affiliation of ads, the money spent on them and its source. The chain of
actors involved in the preparation, placement and dissemination of the ads will remain
obscure, preventing the effective oversight by public interest actors and authorities into the
spending of political actors and other national rules relevant to electoral processes.
Transparency about the more detailed elements on targeting will remain merely implicit (in
the GDPR) or indicated as desirable (in EDPB Guidance). There will not be public scrutiny
of the use of political ads online, except to a limited extent for actors in the DSA’s scope. The
Commission will continue its monitoring of the implementation of the Commission’s
Electoral package recommendation on transparency and combatting disinformation and the
coordination within the framework of ECNE137
. In line with the Guidance on strengthening
134
Based on the public consultations conducted for EDAP and this initiative, the findings of the report on the 2019 European
elections and underlying studies and questionnaire, the underlying study performed to support this initiative, as well as
specific elements from the impact assessment for the DSA and other relevant sources (Annex 8).
135
Including the majority of online service providers in the scope of this initiative, and naturally not offline actors – see
Annex 8 for a description of categories of actors to which measures under the DSA and the current initiative will apply.
136
See Annex 3.
137
https://ec.europa.eu/info/sites/info/files/soteu2018-cybersecurity-elections-recommendation-5949_en.pdf.
27
the Code of Practice of Disinformation the Commission expects the signatories of the Code to
step-up the Code’s measures on the transparency of political and issues ads. The Code will
evolve from a self-regulatory approach to a co-regulatory framework with the adoption of the
DSA138
. While the Code of Practice aims to deliver industry-led solution regarding specific
issues related to the transparency of political ads, it would not address all the specific areas
related to political ads. Monitoring and enforcement of EU data protection rules would
continue, as well as guidance on the consistent application of the GDPR139
.
The baseline would also benefit from measures set out in EDAP. Further, research would
continue to analyse the impact of these voluntary measures and unilateral legislative
measures being adopted by Member States.
The problems identified in this impact assessment would continue to evolve as described in
section 2.3. Political activity will move increasingly online, making cross-border service
provision a developing market, including in the context of European elections. The costs and
obstacles affecting service providers (ad agencies and publishers) when providing their
services across borders or in multiple states will persist. Issues identified for the democratic
process related to the circulation of political ads in the internal market, will remain. Despite
expected improvements, the lighter online regulation140
will continue to contribute to driving
political ads services online. This move online will cause national rules to become
increasingly difficult to monitor and enforce. Member States will continue to respond with
diverging national solutions aiming to increase transparency and the possibility for oversight,
without the coordinated enforcement. Large platforms with a presence across the internal
market will continue to control compliance risks through actions which partition the internal
market. Obstacles will continue to prevent smaller companies from scaling up. The problems
outlined above resulting from the non-transparency in political ads and regulatory failure will
continue to evolve, including as regards the lack of power for citizens to inform themselves
on political ads and hold political actors to account.
In the context of European elections, EUPPs intend to increase their campaign activity, for
instance on transnational issues such as climate change.141
Member States might seek to
enforce national rules in connection with political ads targeting their citizens. This, and
related obstacles to cross-border campaigning may significantly reduce the possibility for
transnational parties and movements to conduct their campaigns. Similar obstacles could
affect the right to campaign in multiple Member States for some national elections in Europe
with diaspora constituencies. The existing, largely ex ante oversight framework will address
138
The proposed DSA will provide a regulatory backstop to the Code, elevating the current self-regulatory regime to a co-
regulatory regime. The Code of Practice on Disinformation is also foreseen to become a Code of Conduct under the DSA,
with a framework for monitoring, oversight and enforcement with respect to very large online platforms.
139
In particular through recent Guidelines of the European Data Protection Board on the targeting of social media users
https://edpb.europa.eu/system/files/2021-04/edpb_guidelines_082020_on_the_targeting_of_social_media_users_en.pdf.
These guidelines expressly refer to targeted political ads (“available online targeting mechanisms enable political parties and
campaigns to target individual voters with tailored messages, specific to the particular needs, interests and values of the
target audience”). See also Commission guidance on the application of Union data protection law in the electoral context.
https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A52018DC0638
140
This light regulation will continue being of concern to citizens. Already four in five Europeans are today in favour of the
rules observed by traditional media before elections being applied to the more lightly-regulated online media.
https://fronteirasxxi.pt/wp-content/uploads/2021/06/ebs_507_en.pdf
141
As reported in the Commission’s 2019 European Parliamentary elections report, p13.
https://ec.europa.eu/info/sites/default/files/com_2020_252_en_0.pdf
28
EUPPs’ transnational campaigning activities, and the proposal to reform the regulatory
framework may expand their scope.
5.2. Description of the policy options
The objectives are addressed by two packages of options, which differ in terms of level of
intervention proposed. The packages differ in their approach to intervention, but share
common elements, especially those soft measures when not replaced in option 2 by binding
measures. They address the problems identified regarding the internal market for political ads
as they concern transparency rules, the use of targeting and manipulative amplification
techniques, oversight, and the problems identified concerning EUPPs and political parties
more generally. They build on the 2018 elections package and the experience gathered from
it, other related EU policymaking, input received in the consultation and the guidelines and
reports published by relevant standard setting bodies. The legislative elements build on the
findings of the mapping of the relevant Member State frameworks (see Annex 7) and are
consistent with the acquis.
Each internal market option aims to complement and not amend existing EU legislation
applicable to offline and online political ads and services, including the DSA, EU consumer
and data protection rules, audiovisual media rules and the digital single market.
In turn, the options concerning EUPPs are prepared in close alignment with the initiative to
reform the regulation on the statute and funding of EUPPs and foundations.
The options addressed to economic actors in the internal market are as follows:
1. Limited binding measures to align certain definitions and provide for information
retention, and soft measures and standards to promote transparency in the use of
political ads online and offline and support further interventions, including self-
regulation. The soft measures also cover the use of targeting techniques.
2. Binding measures to harmonise transparency requirements for political ads
accompanied by soft measures and standards. The binding measures also address the
use of targeting techniques in political ads.
The options addressed to political parties are as follows
1. Limited binding measures to adapt the existing framework on EUPPs to introduce
an obligation for parties to support transparent use of political ads; and
2. Extending the existing framework to introduce complementary obligations on
EUPPs to provide meaningful and transparency obligations for the use of political
ads.
Further non-legislative measures are envisaged to incentivise and promote equivalent
standards nationally in European elections.
Table 1 – Summary of measures addressed to economic actors in the internal market
Option 1: Limited measures to promote
transparency, address issues with
targeting and support oversight
Option 2: Measures to harmonise
transparency, address issues with targeting
and strengthen oversight
29
Obligations on
economic actors
related to
transparency of
political ads
Limited common framing of political ads
based on existing national definitions, to
provide clarity to economic actors,
incentivise compliance with relevant rules,
and facilitate accountability and oversight.
Passive142
obligation on all actors to
retain information about political ads, in
addition to existing EU common
obligations143
(e.g. the amounts spent,
source of funding, the scope of distribution
and period of circulation of the ad).
Soft measures addressed to Member
States and parties to address the provision
of political ads to citizens with tailored and
adequate transparency, to facilitate
accountability and oversight and address
the issues for democratic processes
associated with non-transparent ads.
Obligation on relevant services
providers to cooperate with competent
authorities, within the scope of the
initiative.
Harmonised framing of political ads using a
combined approach based on existing national
definitions as well as self-identified political
and issues ads.
Passive obligation on all actors to retain
information about political ads, in addition to
existing EU common obligations.
Obligations tailored to the relevant actors to
provide citizens, interested actors and public
authorities specific information on political
ads, to clarify obligations, facilitate
accountability and oversight and address the
issues for democratic processes associated with
non-transparent ads.
Obligation on relevant service providers to
cooperate with competent authorities, backed
by provisions to empower authorities within the
scope of the initiative.
Specific measures
on targeting and
manipulative
techniques
Soft measures addressed to Member
States and political parties to ensure that
adequate and specific transparency is
provided about the use of targeting and
other manipulative techniques, so that
voluntary commitments among economic
actors on the points raised in the specific
objectives are tackled including within the
Code of Practice.
Binding EU-wide limits to targeting with two
sub-options detailed below.
Soft measures addressed to Member States
and political parties on further steps to limit
other manipulative techniques, such as buying
of fake engagement and inauthentic
accounts/networks.
Powers of oversight
bodies
Soft measures addressed to further
empower competent bodies to request and
obtain relevant information.
Further support, including for capacity
building, joint action and the exchange of
good practices in particular in the
framework of ECNE.
Powers for competent authorities to request
information and to enable the exchange of
information among competent bodies, within
and across Member States, relying on existing
national and EU governance frameworks.
Further support, including for capacity
building, joint action and exchange of good
practices among authorities in particular in the
framework of ECNE.
Table 2 – summary of measures addressing political parties
Option 1: Limited
amendment to the
Option 2: Extending the Regulation 1141/2014 framework to
introduce complementary obligations on EUPPs and active
142
The relevant information is normally already available as part of the business process. It merely needs to be retained. The
obligation is passive in the sense that economic actors do not have to proactively make that information available to
interested actors – only upon request.
143
This is additional to and without prejudice to harmonised obligations under EU laws such as the GDPR and DSA (see
below). Not all concerned operators will be subject to the DSA, or the AVSMD. The GDPR will not apply to all activities as
the processing of personal data is not per se at stake, even for online ads.
30
Regulation
1141/2014
framework
oversight
European parties Amend the existing
framework to
include the
requirement that
EUPPs take steps to
promote the
transparent use of
political ads and
address targeting as a
condition for
receiving funding.
Elaborated rules for EUPPs to ensure transparent management
and disclosure of political ads, including obligations to ensure
that information is published with the political ads, to limit the
use of targeting techniques, as well as to retain and disclose
further information (including in the repository below) to
provide accountability around the electoral period.
Support an independent platform and party-neutral repository of
information about political ads activity in European elections,
accessible in by all citizens.
National parties Soft measures addressed to Member States and national parties to have high
transparency standards consistent with to those for EUPPs
Political parties in the
EU
Promotion of a fair campaigning pledge among political actors, based in particular on
high transparency standards, including on targeting, and a level playing field in the EU.
Providing identical transparency requirements at EU level is the element available for
harmonisation that would most obviously make the biggest difference for service providers in
the internal market. However, providing identical standards on the use of targeting in the
political ad context is closely linked to this harmonisation objective. Indeed, while the policy
options could be bundled differently, a package combining hard standards on transparency
with soft measures on targeting would not address appropriately the objective of the Article
114 TFEU legal basis that is the primary motive for the proposal aimed at economic actors.
Indeed, efforts to harmonise the market for political advertising by focusing on high
standards of transparency without also harmonising on high standards regarding the use of
targeting would soon be met by new fragmentation from Member States determined to
protect themselves from the risks emerging from the targeting techniques afforded by online
media144
. Further, even in the consultation, no genuine alternatives to a ban capable of
addressing the issues were suggested145
.
Policy option 1 – Limited harmonisation
Transparency: The first option provides for limited mandatory common transparency
requirements for political ads (both online and offline) including on targeting. It relies on
national definitions of political ads,146 which for the most part a priori do not cover
issues ads. This would provide a common reference point for service providers in their
contractual terms, and for competent authorities to exercise their oversight functions as well
as for other stakeholders to play their role. A specific obligation on all economic actors
involved in these political ads to retain relevant information about political ads (and provide
144
E.g. the Netherlands and Sweden, see Annex 7.
145
There are a number of reasons, including limitations of competence for the Commission to intervene, political feasibility,
the political aims expressed in the Democracy Action Plan, and the existing policy initiatives (e.g. the Code of Practice) and
the framing of any approach by the acquis (the DSA, the GDPR, the AVMSD and Regulation 1141/2014).
146
A fuller account of such elements of national definitions is found in Table 8.1. in Annex 7.
31
it upon request) is provided to facilitate the oversight of relevant rules and democratic
accountability147
.
Targeting: Under this option, Member States would be specifically invited to provide for
standards on the use of targeting techniques. This would support voluntary commitments
fostering democratic accountability among economic and political actors, including those
within the Code of Practice. This would be without prejudice to existing legal information
obligations under the GDPR.
Oversight: Option 1 foresees limited measures to support oversight and audit including
soft measures to support cross-border cooperation on these matters and enforcement. It
promotes common standards (e.g. Application Programming Interfaces (‘APIs’), data
retention protocols) for interoperable ad repositories, the ‘know you client’ data for the
disclosures to support interoperable information systems and processes, and allows for the
effective oversight of, and research into, the circulated ads148
.
Stakeholders’ views: Most OPC respondents, across all stakeholders, supported specific measures to
increase oversight of competent authorities (73.7%). Stakeholders with an interest in monitoring
political ads would welcome a system based on interoperability through which data from multiple
platforms could be easily accessed and common tools used across platforms.
Political parties: Option 1 introduces mandatory transparency standards for political ads in
Regulation 1141/2014, building on the recommendations in the Electoral package. EUPPs
would have to provide ex ante to the Authority reassurances that they will take the necessary
measures including through their own websites and via explicit commitments.
Soft measures would be addressed to Member States and political parties to promote high
transparency for national political parties equivalent to those to be introduced for EUPPs.
Political actors would be invited to join, and Member States to support, a fair campaigning
pledge, building on national models, to promote high standards of transparency and
accountability in political ads, in particular on the use of targeting.
Stakeholders’ views: Member States have shown a high interest regarding the creation of soft
measures such as code of conducts, without excluding more binding measures. The Dutch Code of
Conduct established in 2020 between political parties and online platforms is considered a positive
precedent serving as a good example of best practice for other national authorities149
, and will be
complemented by the announced NL Law on Political Parties (discussed in Annex 7). In Germany,
there has been call for a regulation for political actors that ensures the complete transparency of
digital communication150
and, in various Member States, some parties have developed their own code
of conduct in this respect (see Annex 7, section 7). Also, stakeholders consulted as well as some
sources in the literature151
agree that the existence of an ad repository152
could increase the
recognisability of online political ads.
147
They could be required to make this information public or available to public authorities and relevant stakeholders in line
with applicable rules – see below.
148
These standards would be aligned to and as far as possible include standards set by the DSA proposal (Article 34).
149
Drawing on the ECNE meeting on political advertising held on 25 March 2021.
150
D64, the German “center for digital progress” calls for a regulation for political actors that ensures the complete
transparency of digital communication. Until this regulation is in place, D64 urges democratic parties to: commit to fair
dealings online in a common Code of conduct for all democratic parties in view of the election year 2021: https://d-
64.org/themen/code-of-conduct/
151
Such as A comprehensive plan to innovate democracy in Europe. https://www.youthforum.org/comprehensive-plan-
innovate-democracy-europe. See also DisinfoLab and 49 other non-profits’ open letter
32
5.2.2. Policy option 2 – More extensive harmonisation
Transparency: Under policy option 2, a common approach to the concept of political ads
would be defined. It would cover ads connected to a political actor, campaign or aim as
defined nationally, and self-declared political ads153
. This would include issues ads154.
Option 2 includes harmonised transparency requirements. Beyond the transparency
obligations vis-à-vis those directly exposed to the political ad, further requirements (proactive
for VLOPs, upon request for others in the value chain) would apply vis-à-vis interested
actors155
and authorities.
Stakeholders’ views: Stakeholders requested clearer and more uniformed concepts and definitions. In
particular, private sector companies and in particular major online platforms suggest adopting
harmonisation legislation that would define political ads and clarify responsibilities.
The publishers of online and offline political ads would have to make available
information (provided in a transparency notice within or easily retrievable from each
political advertisement) about the amounts spent in an advertising campaign and their source,
any relevant (nationally defined) campaign/party registration information as well as (where
relevant) a link to official information sources about the elections, the sponsor’s identity,
whether and how the advertisement was targeted or amplified, the scope156
and period of
circulation of the advertisement, the data sources, and the criteria used for targeting157
.
VLOPs would also have to proactively provide this information in their publicly accessible
ad repository, in addition to the information they already provide about ads under the DSA158
.
Ad publishers159
would have to issue standardised periodic reports160 on the amounts
received for the services they have provided connected to political advertisements and their
targeting, aggregated to campaign or candidate.
https://www.disinfo.eu/advocacy/open-letter-to-eu-policy-makers-how-the-digital-services-act-dsa-can-tackle-
disinformation/
152
As put forward in the Commission Guidance on strengthening the Code of Practice on Disinformation. Examples of ad
repositories include Google’s: https://transparencyreport.google.com/political-ads/region/EU?hl=en and Facebook’s:
https://www.facebook.com/ads/library/?active_status=all&ad_type=political_and_issue_ads&country=ES
153
National definitions of political party, campaign, campaign period, political aim, or any other relevant definition used to
establish the link with political ads would not be affected.
154
Self-declaration would be incentivised through the legal certainty of inclusion within this EU framework, including the
provisions on targeting. There is also political value in compliance.
155
See specific objective 2ii. ‘Interested actors’ is intended as a privileged category of beneficiary of transparency; it would
include actors playing an important role in the political debate (such as oversight on behalf of the public) and build on the
idea of vetted researchers under Art. 31 DSA.
156
The scope is the demographics (segments and numbers) targeted and expected to be reached.
157
These obligations are in addition to and without prejudice to the obligations under the GDPR and DSA. They would
complement existing legal information obligations under the GDPR, and codify elements of the guidance provided by the
European Data Protection Board by making mandatory in the context of political advertising information to be provided to
the data subject (source of the data and logic involved) to be provided to the data subject. Where there is overlap, the
obligations are complementary: i.e. they make the relevant information available to the public, beyond the individual
exposed to the ad, and they cover either political ads for which the GDPR is not involved (no personal data) or actors not
already covered by the DSA. Under the GDPR, individuals must already know how they have been profiled, what data is
processed (what for, its origin, etc.), who is targeting them, what criteria are being used and what segments they are placed
into (see Annex 8); not all this information currently need to be provided directly with each ad, however, nor is it to be made
available to the wider public.
158
To ensure appropriate oversight and scrutiny of advertising practices, ads that were taken down (because they were
judged unlawful or for other reasons) still need to be retained, although in the repositories this should be made available only
in a distinct space available to the authorities and interested actors.
159
Except those under a defined size (e.g. SMEs).
33
Other economic actors involved in the political advertising value chain would have to
retain (keep record of) information on transactions, including amounts, parties, services
provided and (where applicable) on the use of targeting, the relevant mechanisms, techniques
and parameters used and the source(s) of personal data used. They would also have to provide
this information down the chain toward the eventual ad publishers to support the latter’s
respective proactive obligations, or to provide the information themselves upon request to
interested actors.
Additional measures on transparency could be provided through soft measures.
Stakeholders’ views: The majority of respondents to the OPC supported the retention of information.
On ads repositories, 71% of respondents would like that publishers of political ads retain at least a
minimum of information from those placing the advertisements. 67% considered that service
providers involved in political ads should also have obligations to retain and provide information.
68% stated that beyond competent authorities, all political ads should also be made available to
individuals through a repository.
Targeting: Two sub-options are envisaged in policy option 2 for targeting. Elements of these
two sub-options could be combined. Under sub-option 1, common standards would prohibit
during reference periods161
the use of defined targeting that is based on sensitive data162.
Under sub-option 2, common standards would similarly limit the use of some targeting
techniques such as micro-targeting and targeting based on certain categories of personal
data163
, but also beyond electoral periods. However, the limitation to targeting techniques
would not apply under certain conditions and when ads are clearly labelled as political ads
(thus complying with the other specific transparency requirements above) and when the
service provider implements and publishes a policy for political ads, with specific reporting
in the annual report.
Stakeholders’ views: 57.7% of OPC respondents consider that there should be additional limits on
targeting and amplification methods, besides compliance with existing data protection rules. Among
these 57.7%, respondents favoured either a ban of targeting and amplification (especially offline
publishers, individuals and CSOs), or opt-in by user.
Monitoring and enforcement: Option 2 would build on established European governance
frameworks including those foreseen for the DSA164
and for the GDPR165
. It would provide
for the identification of a specific national contact point on the obligations envisaged by the
160
As a part of annual reporting and to a format developed in cooperation with relevant economic actors and modelled on the
framework provided in the Non-Financial Reporting Directive. http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A32014L0095
161
i.e. the critical period ahead of elections, established nationally or on the basis of common standards. See for instance the
Irish Parliamentary Library and Research Service’s Note evaluating the government proposal to regulate online political
advertising (2021), pp 10-12. https://data.oireachtas.ie/ie/oireachtas/libraryResearch/2021/2021-02-08_l-rs-note-the-
regulation-of-online-political-advertising-evaluating-the-government-s-proposals_en.pdf
162
This EU-wide prohibition would not affect the possibility to target based on broad or non sensitive categories, e.g. on the
approximate place of residence of citizens or the rough age group they belong to, and could be calibrated to the electorate.
Besides targeting based on sensitive data, other techniques with a potential negative impact on democracy, such as the
elaborated psychographic techniques used by Cambridge Analytica, could also be prohibited.
163
This could include the special categories of personal data provided in Article 9 of the GDPR.
164
The DSA governance would apply to actors in its scope for transparency requirements provided by this initiative.
165
The GDPR framework would apply to actors in its scope for requirements under this proposal related to data protection,
and in particular targeting techniques.
34
initiative166
. It would impose specific cooperation obligations to economic actors involved in
the political ads value chain.
With regard to the objective of achieving a ‘clear line of sight’167
and automated reporting in
the monitoring of the political ads value chain, policy option 2 would specify headline
requirements for interoperable information systems based on the required outcome
(established on the basis of the transparency needs). This would enable the transparency
obligations to be delivered efficiently for both their beneficiaries and for the addressees of the
obligations.
Additional measures would support the coordination of oversight of the envisaged measures
at EU level, as well as strengthen national coordination and oversight capability among
competent authorities, and foster pooled resources, joint action and the exchanges of good
practices (including in the framework of the ECNE).
Political parties: Policy option 2 would provide transparency obligations on political ads and
limitations to their use of targeting techniques. EUPPs would be obliged to label their ads and
to publish or otherwise make available additional information168
, including to actively
provide timely disclosures during the electoral campaign period169
. Further obligations would
ensure that parties retain sufficient information to support reporting and oversight functions.
This option would include an independent, platform and party-neutral repository of
information about political ads activity in elections to the European Parliament, accessible in
real time by all individuals and with corresponding obligations on EUPPs to upload their
political ads and provide relevant disclosures170
.
Soft measures would be addressed to Member States and national political parties
recommending introducing equivalent standards for all political actors and to support the
establishment of a fair campaigning pledge.
5.3. Options discarded at an early stage
Some options were discarded at an early stage, especially based on competence (subsidiarity)
and proportionality criteria.
1. Any ban on cross-border political advertising. This was discarded as being likely to
disproportionately restrict legitimate activity and impact on fundamental rights while
being unlikely to effectively address most problems identified.
166
Existing authorities competent under EU law on (at least one aspect of) political ads are described in Annex 8. Option 2
provides additional powers to competent authorities to request relevant information but would not create an additional
governance structure. The increased transparency mandated by the present initiative will enable competent authorities to
exercise their existing powers better and more efficiently, especially in cross-border and/or online cases.
167
To enable information to be provided forward through the value chain to publishers, to support the provision of
meaningful information on the political ads they publish, in particular as regards spend, which needs to be aggregated and
could include information from several sources.
168
Following the requirements in this initiative, i.e. information to be provided on the face of the ad, on the EUPP’s
dedicated space in the repository, and on its website.
169
For elections to the EP. A common campaigning period may need to be provided, it would apply for these purposes.
170
Political ads of all forms should be included in this repository; this means not only ‘visual’ ads, but also paid-for
amplification in news feeds and search rankings, for instance. There the inclusion of a kind of ad is not straightforward due
to its format, the authority in charge of the repository shall decide on the best technical means to include it.
35
2. A general ban on the use of targeting was discarded as likely disproportionate171
. It
would increase the cost of political advertising and may unduly affect lawful
communications outside of electoral periods and during which the main parties affected
would be CSOs. Such a ban would advantage well-resourced parties able to afford
untargeted online campaigns.
Options based on opt-in and opt-out have been discarded on targeting as this is already
largely addressed by the GDPR, does not address the fact that use is made of people’s
vulnerabilities, and that manipulation can be at stake when targeting and amplification
techniques are being used to disseminate political advertising.
3. Extensive harmonisation of essential terms in the electoral process, such as political
party or political actor, or campaign periods versus silence periods. These concepts are
essential parts of the organisation of elections, which remains largely a national
competence172
, raising issues in terms of subsidiarity and proportionality (necessity and
EU added value).
4. Extensive harmonisation of substantial requirements for the electoral process other
than transparency. It would not be possible with this initiative to harmonize all the
requirements applicable to political advertising across EU (e.g. who may sponsor an ad or
how much they may spend), because the organization of elections and of political activity
is a competence of Member States. There are specificities, traditional and historic
characteristics accompanying the advertising in political context that have to be taken into
account and, in contrast, horizontal transparency and measures applicable to economic
operators was indicated as something Member States would be willing to support.
5. Amending the ‘country of origin’ principle for political ads, whereby providers of
online services are subject to the law of the Member State in which they are established,
by creating an horizontal elections-related carve-out to enable the direct application of
national relevant rules on services in the internal market affecting national elections. This
was rejected as being likely to undermine the internal market and its development,
including for services unrelated to political ads, and reducing legal certainty for economic
actors.
6. WHAT ARE THE IMPACTS OF THE POLICY OPTIONS?
6.1. The baseline scenario
The impact of the baseline scenario is assessed under the problem definition.
6.2. Assessment of the options
The policy options were evaluated for the following economic, social, fundamental rights and
other impacts. No environmental impacts are expected and are not considered further.
6.2.1. Economic impacts
6.2.1.1.Functioning of the internal market
Both options would have a positive effect on the functioning of the internal market.
171
However, it was noted that not all forms of a ban would necessarily be disproportionate, as clarified by the ECHR in 2013
regarding the UK ban on political ads on broadcast media previously cited.
172
A uniform procedure or common principles can be established at EU level in the context of European Parliamentary
elections, the procedure provided by Article 223 TFEU. The right of initiative belongs to the European Parliament.
36
Option 1 would partially reduce the costs resulting from legal fragmentation and uncertainty
for economic actors, thereby facilitating the offering of political ad services across borders.
By supporting coordination among competent authorities, it would contribute to improving
regulatory outcomes and reduce the possibility of economic actors obtaining an unfair
advantage by offering services from specific Member States.
Option 2 would further remove costs resulting from the legal fragmentation and
uncertainty173
, also facilitating the offering of services across borders. By clarifying and
harmonising the rules on the retention and provision of information for the purposes of
oversight and accountability, it would remove a key driver of compliance costs in multi-
Member State and cross-border campaigns. In addition, it would add legal predictability for
intermediary services active in several Member States, contributing to the good functioning
of the internal market174
. This option would also improve regulatory outcomes as competent
authorities increasingly struggle to enforce the current legal framework. Competent
authorities from Member States other than the one where the provider is established will be in
an improved position to monitor ads affecting their electoral and democratic process – a
currently complex and costly practice175
. This should in turn improve trust and transparency
in political ads services, removing the justification for national market segmentation, thereby
increasing opportunities for cross-border services to develop.
The measures on targeting would address the most problematic targeting techniques176
while
also providing for the use of targeting in a manner which incentivises good practice. Tailored
restrictions would limit the availability of certain elements of such services. This would be
outweighed by opportunities for economic actors resulting from increased trust among
citizens and regulators in the technique and from greater legal certainty of compliance in its
use in the political context.
In addition, this option would reduce the advantage derived from regulatory fragmentation by
providers of services for online ads compared to offline media177
. It would limit unfair
advantage being derived from offering political ads services from outside the internal market,
and help ensure that all such services comply with norms established to protect the integrity
of democratic processes.
6.2.1.2.Competitiveness, innovation and investment
Both options are expected to have a positive impact on the competitiveness, innovation and
investment in cross-border political ads services. Both are proportionate and neither would
impose dissuasive requirements on service providers. The removal of the obstacles resulting
from legal uncertainty and fragmentation will foster the development of a European industry
of rights-compliant services, and will enable existing national enterprises to scale up.
Option 2 would have a greater positive impact on competitiveness, innovation and
investment. It would reduce legal fragmentation and help create a stable market to support
173
Illustrated in Annex 9.
174
Many consulted stakeholders underline the importance of a common definition and clear rules to foster legal certainty for
both consumers and economic operators.
175
A consulted national authority for example stated that the effective enforcement of transparency obligations is not
possible without common rules. Further illustrated in Annex 9.
176
Using sensitive data, sophisticated profiling and reaching too narrow a proportion of the electorate.
177
A stakeholder representing audio visual media outlets states that there is a need to address the regulatory asymmetry
between online and traditional media services.
37
investment, enable national SMEs to scale up their operations and stimulate the development
of new services offered at EU level. Both sub-option of option 2 could slightly limit the
choice in such services. Both sub-options incentives the development of an accountable and
fair market for political ads targeting services.
Costs and administrative burden on economic and political actors
Both options would add compliance costs for economic actors providing services which are
in scope and not currently regulated (or to be regulated by the DSA) – mainly online adtech
and related service providers, though some smaller online intermediaries could be affected
despite the specific mitigation foreseen for SMEs. These are also expected to be compensated
by the efficiencies realised from the removal of legal fragmentation that facilitate the cross-
border provision of services. The net expected result is a cost reduction against the baseline.
The measures in common to both options on establishing a common framing and passive
transparency for political ads would not involve more than one-off adaptation costs,
especially as the retention of the information can be automated.
Option 2 introduces some additional specific obligations over option 1 and the baseline which
require business process adaptation and technical design costs. However, the provision of
information can for the most part be automated. The costs can be offset against the benefits of
streamlining oversight and compliance and the removal of costs associated with regulatory
fragmentation.
Estimates of costs for obligations addressed to economic actors
Type of
obligation
Option 1: Limited measures
to promote transparency,
address issues with targeting
and support oversight
Option 2: Measures to harmonise transparency,
address targeting and strengthen oversight.
Obligations
on economic
actors
related to
transparency
of political
ads
Common framing of political ads
All economic actors are expected to derive cost efficiencies when offering
services through a common framing of political ads, with online intermediaries
each saving around EUR 400,000 per annum178
. This is expected to
proportionately benefit SMEs more than VLOPs, as they will be enabled to offer
their services in the internal market.
Passive obligation to retain information relevant to political ads oversight
All economic actors would be required to retain transaction data on political
advertising from existing business process and management information
systems, to enable reporting and disclosures, and compliance with the obligation
to cooperate with competent authorities. Additional ongoing costs are not
expected, but limited one-off costs may result to adapt information systems,
including for SMEs.
Obligation to cooperate with competent authorities
All economic actors would be expected to have an officer179
(or legal
representative) responsible for interaction with national authorities. SMEs would
not need to recruit additional staff and their costs are expected to be absorbed.
178
Estimation for companies present in three Member States, assessment based on the comparable DSA impact assessment
SWD(2020) 348 final. See Annex 4.4 for details.
179
Based on the feedback from stakeholders.
38
Online intermediary services will already have a single point of contact for
authorities under the DSA, and VLOPs in particular will also under the DSA
already require a compliance and engagement officer. Data protection officers
will already been designated under the GDPR as required by it. Costs would vary
according to the number of requests – potentially 0.5-1 FTE (full-time
equivalent) per political ad campaign180
.
Soft measures to introduce
national rules on
transparency
Ad publishers would incur
one-off data handling and
process adaptation costs
where national rules change
between EUR 3,000 to 5,000
per enterprise181
, but these
would only be offset by
fragmentation reduction if
all Member States
implemented the soft
measures fully and in an
aligned way.
Obligations to publish and otherwise provide
information
All actors would incur costs of providing
information to interested actors, depending on the
number of requests. Ad publishers would have to
make one-off data handling and process
adaptation costs to obtain and publish the
necessary data on the face of the advertisements.
These costs may be comparable to costs currently
incurred by companies that voluntarily disclose
information, estimated at around EUR 10,000 to
15,000 per annum182
. VLOPs may need to make
additional costs to adapt their ad repositories
(provided under the DSA).
These costs would be offset by the fragmentation
reduction savings.
Specific
measures on
targeting
Transparency on targeting
Soft measures (option 1) and binding measures (option 2) would imply limited
additional cost as they complement other transparency requirements. VLOPs and
other operators are expected to incur costs to implement national measures in the
absence of harmonisation183
.
Limits to targeting of political ads
Suboption 1: ban during reference period
It is unclear whether the estimated increase in the
cost of running online political ads campaigns
would result in a reduction in overall activity, or
drive activity to different media184
.
VLOPs would incur some compliance cost and
potentially foregone revenue. Adtech companies
would be limited in their possibilities to provide
sophisticated political ads services in the EU
180
Due to the limited data available for this market, it is currently not possible to estimate how many economic operators
would be affected. Further information in Annex 5.
181
The underlying study bases this estimation on stakeholder consultations.
182
This estimation is based on the feedback from stakeholders and refers to costs incurred by an average company based on
the AdChoices self-regulatory program.
183
It is challenging to estimate these. No information was provided on costs of the steps taken (if any) to adapt processes to
the French requirements, currently the only national provisions to have specifically addressed this point. No estimate of costs
has been published for the Irish bill that would introduce some obligations in this area. See Annex 7 for details. In France for
example, online platforms must provide users with information on the identity of promotion sponsors and the remuneration
received for such content. This information must be publicly available in a register.
184
The underlying study estimates that equivalent online advertising would be almost 3 times as expensive as current
targeted online ads.
39
during elections periods. This would affect SMEs
involved in this aspect of the market (data
brokers, consultancies and other intermediaries
etc.).
Suboption 2: conditional limits at all times
VLOPS and ad tech companies administrating the
conditional restrictions would make one-off
process adaptation costs.
Costs under this sub-option would be
significantly compensated through the
establishment of a common approach185
.
Powers of
oversight
bodies
Powers for national authorities to request
information
All economic actors could bear some
administrative costs, depending on the scope of
the powers required and the number of requests.
This may be offset against the streamlining of the
applicable regimes, and is mitigated by reliance
on existing frameworks.
Framework to enable the exchange of
information
The costs of designing and implementing
necessary APIs and adapting business processes
can be absorbed into the general IT maintenance
cycle.
SME test186
It is not possible to fully exempt SMEs from the transparency requirements as they are
important actors in political ads. However, some support measures are foreseen187
, as well as
an exemption. SMEs would have the possibility to appoint an external person as contact
point. On the basis of a de mimimis threshold, enterprises would not have to conduct annual
public reporting.
Legal fragmentation in the internal market for political ads services is a significant barrier for
SMEs, amounting to prohibitive legal and costs obstacles to such enterprises188
. SMEs are
also more affected by policies established by private sector actors and some Member States
185
It would have a greater positive impact on competitiveness, innovation and investment. It will reduce legal fragmentation
and help create a stable market to support investment, enable national SMEs to scale up their operations and stimulate the
development of new services offered at EU level.
186
SMEs are usually technological service providers, engaged in analysis and planning of political campaigns, the provision
of ‘amplification and targeting services’ or ‘financial support services’ connected to the publication of political ads. SMEs
raised certain concerns in the consultation, incl. the need to make sure that what is forbidden offline is also forbidden online,
the need to define “political ads”, and some concerns on targeting and the use of political data.
187
Incl. with potentially EU supportive intervention to co-fund public authorities and CSOs via financing programmes.
188
Adapting to multiple regulatory regimes was described as requiring 1 FTE for a compliance officer merely to determine
the relevant obligations, in addition to making any necessary changes.
40
which limit the possibility to run campaigns to entities which are established in the Member
State where the political ads would be published.
Both options foresee changes that would impose one-off costs. The obligation to provide
information to the authorities and specific actors (including other enterprises in the value
chain) involve an ongoing compliance cost. Support to compliance to transparency
requirements should be offered by Member States, professional associations and external
consultancies. While the ongoing costs depend on the volume of requests, the one-off costs
described affect SMEs proportionately more than other actors.
Option 2 offers more opportunities for such costs to be offset by savings resulting from
simplification of the rules and the elimination of the need for multiple adaptations when
offering services across borders. This would increase cross-border activity in particular for
SMEs, which could offer their services to clients outside their Member State of establishment
and would have the opportunity to scale up to operate at EU level.
The ban on targeting based on sensitive data or specific techniques during reference periods
under suboption 1 of option 2 would affect SMEs which process data for political ads
purposes just like other economic actors. Suboption 2 is designed to rebalance the impact of
limiting targeting for political ads by incentivising high standards of transparency and
accountability, also demonstrable to the wider public. Providing a common framework for the
legitimate use of targeting in political ads could increase opportunities for SMEs to introduce
new services and enter the market.
Estimates of costs for obligations addressed to political actors
6.2.1.3.Costs for public authorities of measures addressed to economic actors
Both options would aim to streamline oversight, providing better access to needed
information, more opportunities for coordinated action and resource-sharing and clarity about
189
The underlying study estimates this aspect of compliance costs to amount to around 5% of the overall audit.
Option 1: Limited
amendment to the
Regulation
1141/2014
framework
Option 2: Extending the Regulation 1141/2014 framework to
introduce complementary obligations on EUPPs
European
parties
Obligations on political parties to ensure that political ads are published transparently.
The changes in campaigning processes are expected to be offset against reduced
compliance risk and increased certainty and possibilities to campaign resulting from
greater clarity about obligations similar to audit requirements estimated at around
EUR 75,000 to 150,000 annually189
.
National
parties
Should political parties follow similar transparency obligations to EUPPs’ (following
the soft measures), the relevant parties could incur similar costs to the ones described
above, proportionate to their own size.
Political
parties in
the EU
All parties in the EU are expected to face small additional recurring administrative
costs related to complying with the obligations voluntarily acquired through
participation in a fair campaigning pledge. There would be respective one-off costs to
elaborating the fair campaigning pledge should they wish to make their own.
41
the responsible authority. This would result in more effective regulatory outcomes, especially
between online and offline political ads.
Option 2 would harmonise transparency requirements for all political ads and establish
certain limits to how online political ads may be targeted. It also provides support to Member
State authorities to request information to support their tasks,190
to facilitate cross-border
oversight. It could result in some costs for national authorities: one-off costs for training
administrative staff and ongoing costs of monitoring compliance transparency and targeting
obligations. These costs are expected to be offset against the efficiency savings expected
from the harmonised obligations and streamlined and strengthened oversight process, but
given the low levels of current enforcement, particularly online, they may not yield a net
saving in this respect.
Costs for public authorities of measures addressed to political actors: Given the low level of
oversight currently reported, impacts would be modest. Option 1 is not expected to require
significant investment by the Authority, except for one-off training costs following a change
in the scope of conditions considered.
Option 2 would require the Authority to ensure the technical design, operation and
maintenance of a suitable platform for the submission of these disclosures and the publication
of relevant information for individuals.191
Considering that the Authority was reinforced in
2019, the mentioned tasks could be integrated into current workflows and this option does not
propose a drastic change to the Authority’s tasks.
Costs similar to those in option 1 or 2 (depending on which is adopted) would be incurred by
national parties and national authorities in the Member States that align national political
parties’ transparency obligations to those introduced for EUPPs. These costs would be similar
in kind, but proportionate to the parties’ size192
.
6.2.2. Social impacts
6.2.2.1.Stronger transparency for economic actors
Both options enhance transparency in the use of political advertising and hence their
recognisability, with a likely reduction of disinformation and other manipulations. This would
make it harder for unauthorised actors to use tactics such as the inauthentic amplification of
certain advertisements (or other tactics uncovered in the Cambridge Analytica scandal). Such
activities, conducted with or without the knowledge of the sponsor of the ad, have the
potential to unduly influence democratic debates and elections within the EU.
Transparency of political ads would improve under both options above the expected levels
compared to the baseline scenario. Increased transparency and accountability of involved
actors should foster a culture of open and honest political campaigning. There would be
equally a small positive reputational impact for economic actors resulting from facilitating
transparency. Providing identical transparency requirements at EU level on the basis of
harmonised standards would make the biggest difference for service providers in the internal
market.
190
Especially the DSA, the GDPR and the AVSMD.
191
The study estimates this as requiring between 2 FTE, potentially up to 7 FTE during the period around elections (three
months), see underlying study.
192
This reasoning also applies to the social and fundamental rights impacts discussed below (insofar as the impact involves
political parties and authorities), and hence will not be repeated
42
Option 2 increases the scope of the measures and includes further harmonisation of the
transparency requirements which should make it easier for citizens to recognise more
political advertisements, and support oversight by competent authorities as well as scrutiny
from interested actors (including CSOs, political actors, researchers, elections observers and
journalists) to monitor online political ads in the EU and hold their sponsors to account. The
strengthening of the quality of information available to interested actors can help enrich the
political debate too,193
and the possibility for NGOs to sponsor informational ads is being
preserved.
By fostering a culture of open and fair political campaigning, these measures should enhance
trust in the use of political ads, and more generally in the political debate and the integrity of
the electoral process. It would contribute to a higher resilience of the EU electoral system to
information manipulation and interference.
6.2.2.2.Stronger transparency for political parties
Both options would complement the impact of the measures addressed to economic actors,
and increase the transparency provided by political actors as sponsors of political ads. This
would be achieved at EU level by introducing concrete elements that EUPPs should ensure
that are included in their political ads, replacing the existing and rarely applied patchwork of
national rules with a common standard. At national level, political actors would be
encouraged to comply through peer and political pressure, as well as through potential future
national legislation to make best use of the strengthened EU-level framework.
Under option 2 the likely impact of information standards in EUPPs’ political ads will be
reinforced by the strengthening of the governance framework to provide ongoing, active
supervision, as well as through the provision of an independent platform and party-neutral
repository of information about political ads activity in European elections, accessible in real
time by all individuals.
6.2.2.3.Enforcement and supervision by authorities
Both options entail improvements over the baseline, in strengthening regulatory coordination
among competent authorities especially via the designation of contact points as well as via
more operational coordination in this area making best use of existing frameworks. This
would ensure that oversight building on a common set of transparency requirements is better
coordinated among national authorities.
Option 2 introduces specific powers for competent authorities to request the rapid
transmission of additional information from economic actors and provides for monitoring
and enforcement structures, building on existing oversight frameworks. This should improve
the effectiveness and consistency of the oversight among Member States. Enabling the
exchange of information among market actors to ensure that transparency is meaningful and
conducive to compliance with relevant electoral rules also supports effective oversight.
6.2.2.4. Address abusive use of targeting
193
It was observed in the national elections in the Netherlands in 2020 that the provision of information about political ads
stimulated awareness on them and a national debate on their use.
43
Both options would lead to improvement in the use of targeting in online political
advertising, which would be more transparent and accountable. Improved transparency
measures in coordination with existing self-regulation would be expected to increase
awareness, and potentially trust. More transparency around currently opaque targeting
techniques is likely to indirectly limit targeting or make it more accountable.
Option 2 on targeting and its suboptions introduces restrictions and conditions on the use of
targeting (at all times or during specific critical periods).
While a certain level of transparency on targeting practices is already provided under EU law,
the increased mandatory level of transparency and accountability toward individuals and
toward society at large is likely to produce greater awareness among citizens of different
techniques used to target and amplify the effectiveness of political messaging they see. It will
allow for greater public scrutiny of differentiated political campaign messaging and will
empower citizens to hold political actors more accountable for their different messages and
promises.
The proposed regulation could also reduce the perceived and actual legal and reputational
risk for political actors of cross-border campaigning, increasing opportunities for campaigns
to reach diaspora communities and mobile citizens, as well as for transnational campaigns in
the European elections. By clarifying the obligations of EUPPs, this option strengthens the
EU dimension of the European Parliamentary elections.
6.2.3. Fundamental rights impacts
All options have a positive impact on fundamental rights, and are not expected to have
significant negative impact on fundamental rights.
6.2.3.1.Freedom of expression and information194
Both options enhance transparency and hence accountability195
and a priori do not negatively
affect freedom of expression196
. The issuance and disclosure of political ads as such, and their
content, remain regulated on the basis of relevant national and EU law. The initiative does
not interfere with the content of political messages. Option 2 could cover issues ads disclosed
by CSOs or individuals. This could impact such actors which could become more reluctant to
intervene in the political debate if their anonymity is affected. However, this should be
balanced with the importance for citizens to get a fair access to information, understand
where information comes from and not be subject of manipulative anonymous content. Both
options positively impact such access to information with a more beneficial impact for option
2. Such transparent and accountable disclosure of political ads also has spill-overs on users’
freedom of assembly and association, as well as on the protection of vulnerable groups from
manipulation.
194
Article 11 of the Charter of Fundamental Rights.
195
Current fragmentation and additional registration requirements currently imposed by private companies can limit freedom
of expression and access to information by citizens.
196
See European Court of Human Rights’ judgment Animal Defenders International v. the United Kingdom cited previously.
In that case, the ECHR ruled in 2013 that the UK ban of political advertising on broadcast media did not violate Article 10
(freedom of expression) of the European Convention on Human Rights. The court weighed the right to impart information
and ideas of general interest which the public is entitled to receive, against the protection of the democratic debate and
political process from distortion by powerful financial groups with advantageous access to influential media. One of the
main considerations in determining that the ban did not go too far was that the applicant had access to alternative media.
This applies here too, as advertisers will retain access to alternatives.
44
A limitation of targeting techniques under sub-option 1 could impact on freedom of
expression. This impact would be proportionate if limited in scope and balanced with impact
to other fundamental rights. This option would significantly address the risk of manipulation
of the democratic debate while respecting the freedom and pluralism of the media.
6.2.3.2.Private life, secrecy of communications and data protection197
Both options are expected to impact the rights to the secrecy of communications and to
private life set in EU legislation. This is balanced by an overall positive effect on democracy
and electoral rights. Measures which would identify the sponsor of a political ad and the
amount of money spent on an ad impact the protection of personal data and have to be
proportionate to the policy aim sought: to ensure that individuals engaged in the political
debate use political ads in a transparent manner198
. The enhanced transparency, conditions
and restrictions on targeting should also benefit the right to data protection.
Where option 2 requires from large online platforms facilitating data access for audits and
investigations by interested actors (furthering the freedom of the arts and sciences)199
, such
measures would not provide for any derogations from the EU data protection acquis. Only the
relevant data should be made accessible to stakeholders including to conduct research on
practices affecting the democratic debate and elections. Access would be designed in a non-
invasive way (e.g. through the use of anonymized data when feasible, and secure or protected
access)200
.
Similarly, where option 2 requires further reporting to national authorities, this can entail
communication of personal data of users of platforms placing the ads (and of users flagging
the ads). This is a necessary measure for protecting the public interest at stake201
and would
respect proportionality requirements by limiting it to data already collected by the platform. It
would imply in any way requirements for citizens using online services to identify
themselves.
6.2.3.3.Right to property and freedom to conduct a business
Option 1 does not affect these rights.
In providing for obligatory limitations to the possibility to provide targeting of political ads
on the basis of certain data or techniques, option 2 could limit the freedom to conduct a
business. This impact is mitigated using two approaches detailed in the suboptions, which
narrow the effect of the proposed limits to the most problematic targeting.
6.2.3.4.EU electoral rights
197
Respectively Articles 7 and 8 of the Charter of Fundamental Rights.
198
This issue has been considered in comparable national legislation: The Joint Committee on Housing and Local
Government of Ireland, which examined the Irish draft Elections reform bill, requested the national deputy Data Protection
Commissioner’s view on the definitions for political ads and transparency obligations provided in that bill, and the latter
indicated they were proportionate:
https://www.oireachtas.ie/en/debates/debate/joint_committee_on_housing_local_government_and_heritage/2021-03-30/2/
199
EUCHR Article 13.
200
See the European Digital Media Observatory Working Group on ‘Access to Data Held by Digital Platforms for the
Purposes of Social Scientific Research’: https://edmo.eu/2020/11/24/call-for-comment-on-gdpr-article-40-working-group/
Further, the access should be direct, real-time, both granular and in aggregated/bulk form, and the data should not be
‘doctored’ or modified (except to the extent necessary for pseudonymisation / anonymisation).
201
If personal data is part of the data, processing would be under Article 6(1)c and e) of the GDPR. This provision requires
Member States to specify in their national framework the conditions for data processing by the requesting authorities.
45
Both options will support the exercise of electoral rights202
, They will also support free and
fair elections and a fair democratic debate, by facilitating transparent cross-border political
ads achieving a high level of rights protection, including as regards the protection of personal
data and ensuring that citizens are able to make informed political choices without
manipulation or coercion. The options addressed to political actors are expected to have a
positive impact on fundamental rights including electoral rights, access to information and
data protection. Furthermore, the limitations to targeting practices of policy option 2 are
coherent with, and have a positive impact on electoral rights as protected under international
standards203
.
Table 1: Summary of Internal Market impacts for each option considered (compared to the baseline)
Impact assessed Baseline Option 1 Option 2
Limited measures to
promote transparency,
address issues with
targeting and support
oversight
Measures to harmonise
transparency, address
issues with targeting and
strengthen oversight
Economic impacts ~ + ++
Functioning of the internal market ~ + ++
Competitiveness, innovation and
investment
~ + ++
Costs and administrative burdens on
economic operators (+SMEs)
~ > >>
Costs for public authorities ~ > >>
Social impacts ~ + ++
Enforcement and supervision ~ + ++
Fundamental rights impacts
Freedom of expression and information
Private life and privacy of
communications and data protection
Right to property and freedom to
conduct a business
EU electoral rights
~
~
~
~
~
+
+
++
~
+
++
++
++
+
+
Other impacts (coherence, etc.) ~ + ++
Overall ~ + ++
Table 2: Summary of Political parties’ impacts for each option considered (compared to the baseline)
Impact assessed Baseline Option 1 Option 2
Limited amendment to
the Regulation
1141/2014 framework
Extending the
Regulation 1141/2014
framework
Economic impacts ~ + ++
Functioning of the internal market ~ + ++
202
Article 39 of the Charter of Fundamental Rights. EU electoral rights include the right for every citizen of the Union to
vote and to stand as a candidate at elections to municipal and EU elections in the Member State in which he or she resides,
under the same conditions as nationals of that State.
203
The International Standards of Elections of the UN Committee on Human Rights, ratified by all EU Member States,
entitle citizens to “be able to form opinions independently, free of […] compulsion, inducement or manipulative interference
of any kind,” as well as to vote “without undue influence or coercion of any kind which may distort or inhibit the free
expression of the elector's will”. See UN Committee on Human Rights, General Comment 25, "The Right to Participate in
Public Affairs, Voting Rights and the Right to Equal Access to Public Service," 1510th meeting (fiftyseventh session).
https://www.osce.org/files/f/documents/4/a/19154.pdf
46
Competitiveness, innovation and
investment
~ + +
Costs and administrative burdens on
economic operators (+SMEs)
~ > >>
Costs for public authorities ~ > >>
Social impacts ~ + ++
Enforcement and supervision ~ + ++
Fundamental rights impacts
Freedom of expression and information
Private life and privacy of
communications and personal data
protection
Right to property and freedom to
conduct a business
EU electoral rights
~
~
~
~
~
+
+
++
~
+
++
++
++
+
++
Other impacts (coherence, etc.) ~ + ++
Overall ~ + ++
The tables above should be read in vertical: ‘~’ means 0 for the baseline. ‘+’ pointing to a better performance of the
option than the baseline, and ‘++’ to the best performance among the options; the ‘>’ symbol is used to indicate
higher costs than the baseline, and ‘>>’ the highest cost among the options. See Annex 4 for a detailed description.
7. HOW DO THE OPTIONS COMPARE?
The options were compared on the basis of the following four criteria:
 Effectiveness, including to:
1. Reduce legal fragmentation, limit circumvention of regulation and regulatory
arbitrage and remove obstacles and reduce costs for the provision of cross-border
political ads services in the internal market;
2. Increase transparency in political ads;
3. Regulate the use of targeting and other manipulative techniques;
4. Ensure the effective oversight of the implementation of envisaged obligations and
strengthen regulatory outcomes; and
5. Promote stronger transparency and free and fair elections through compliance with
relevant rules among political parties in the EU.
 Efficiency: relating the anticipated costs of the measures against the expected benefits of
increased effectiveness.
 Coherence with existing and planned initiatives.
 Proportionality: relating effectiveness against efficiency and any negative impacts.
Table 3: Comparison of options against baseline
Option Effectiveness Efficiency Coherence Proportionality
1 2 3 4 5
Baseline ≈ ≈ ≈ ≈ ≈ ≈ ≈ ≈
Option 1 + + + + + + + +
Option 2 ++ ++ ++ ++ ++ ++ ++ ++
7.1. Effectiveness
47
1. Reduce legal fragmentation, limit circumvention of regulation and regulatory arbitrage
and remove obstacles and reduce costs for the provision of cross-border political ads
services in the internal market;
Both options would increase legal certainty over the baseline. Option 1 would be a partial
step towards reducing fragmentation, but it would leave the majority of the substantive
changes needed to convergent Member State regulation and self-regulation. Option 2 would
increase legal certainty and reduce the scope for divergent regulation. It would provide a clear
basis for effective oversight, increasing incentives for legitimate market entry and reducing
the incentives for circumventing relevant rules.
With the soft measures proposed by some stakeholders and taken into account in option 1, no
tools sufficient for effective oversight are provided, and further fragmentation will a priori
not be preventable. Large platforms typically call for self-regulation and soft measures, and
participate in self- and co-regulation such as the Code of Practice on Disinformation;
however, as discussed in the annex, their efforts (e.g. to label political ads) are done
inconsistently. In particular, in the case of providing researchers with access to their data,
their measures are indicated to be insufficient, inconsistent and non-transparent.
2. Increase transparency in political ads
Both options increase transparency over the baseline. Option 1 is less likely to be effective:
experience with the Electoral package recommendation and current national legislative plans
do not suggest that convergent regulation is likely. Option 2 would ensure that relevant
advertisers provide with all political ads the information necessary for them to be recognised
as such, for their sponsors to be held to account in the political process, and for competent
national authorities to carry out their oversight functions to ensure that rights are protected
and the democratic processes are not undermined.
3. Regulate the use of targeting and other manipulative techniques
Both options will support self-regulation aiming to ensure more transparent targeting and the
existing transparency and personal data protection framework. Option 2 aims to introduce
restrictions to how and when targeting can be used. Suboption 1 would prioritise legal
certainty and the effectiveness of protection during nationally established reference periods.
Suboption 2 would promote transparency and accountability toward society at large and
would address further the (e.g. sensitive) data types and limit the scope of misuse. Both
suboptions of option 2 would include common rules on transparency around targeting
practices regardless of the targeting limitations.
4. Ensure the effective oversight of the implementation of envisaged obligations and
strengthen regulatory outcomes
Both options aim to support capacity building, cooperation and the strengthening of the
existing and planned governance frameworks at EU and national levels. Option 1 focuses on
supporting with soft measures the best use of these frameworks where they provide for cross-
border enforcement. Option 2 would also aim to ensure that the gaps in these governance
frameworks204
are closed by providing powers for national authorities to request the
204
Relevant economic actors and services are outside the scope of the e-Commerce Directive/DSA and the AVMSD – see
Annex 8 for details on the existing relevant governance frameworks and where activities are beyond their scope.
48
information necessary for their oversight activities for political ads, and to be enabled to
cooperate in investigation and enforcement action. Economic actors would be supported to
enable oversight by ensuring interoperability of information system in the political ads value
chain through the development of common APIs and automation in the provision of the data
needed by publishers to comply with transparency obligations.
5. Promote stronger transparency and free and fair elections through compliance with
relevant rules among political parties in the EU
Both options aim to ensure that EUPPs use political ads transparently and to support all
political actors in achieving high standards of compliance in political campaigning. Option 1
relies on the existing Regulation 1141/2014: supervision would be passive after the moment
of registration and application for funding, and review would be conducted significantly after
campaigning ends. Option 2 would provide obligations for active and timely disclosures for
EUPPs.
In parallel to both options is the soft measures to Member States to align transparency
standards for their national parties to those introduced for EUPPs, which would have a
similar impact on free and fair European elections nationally.
7.2. Efficiency
The efficiency of the options weighs the qualitative cost-benefit analysis described in Annex
3, as well as in the description of the impacts in section 6 above.
For both options, online service providers would face non-negligible but variable compliance
costs for the obligations related to the retention of information and its supply to competent
authorities, with the highest likely exposure being for ad publishers.
Option 1 would impose fewer direct costs on economic actors and national authorities.
Economic actors would continue to be exposed to many of the indirect costs of fragmentation
described in the baseline scenario.
Option 2 brings with it additional compliance costs for economic actors to implement the
specific transparency and oversight related obligations, with both one-off adaptation costs
and ongoing compliance administrative costs. Overall costs on service providers are expected
to be lower, however, as reduced fragmentation yields efficiency gains.
7.3. Coherence with other initiatives205
Both options are complementary to the objectives of the horizontal instruments establishing
the single market for digital services, and align with the objective of empowering users and
improving the opportunities for innovation and the supervision over digital services. Option 2
would in particular strengthen opportunities for the development of an EU political services
market, especially for online services.
Option 2 also supports EU and Member State policies to combat interference and strengthen
the resilience of democratic processes. Both options apply to the offline context in addition to
online political ads. Member States already regulate offline political ads strictly on the basis
of the UCPD and on the basis of their respective electoral and media regulation. Online
205
The coherence of the present initiative with each relevant EU legislation and forthcoming initiative is described
individually in greater detail in Annex 8, under ‘space for action’ subheadings.
49
advertising is addressed to an extent by the ECD, and more so by the DSA proposal. The
measures considered in this proposal will therefore close gaps of substance and scope and
ensure coherence in the approach between media to addressing the specific issues raised by
political ads.
Similarly, targeting activities206
are already regulated by data protection rules (the GDPR and
the ePrivacy Directive207
), both online and offline.208
The measures assessed would frame the
use of targeting for political advertising purposes, by mandating specific additional
transparency obligations around its use and by banning certain forms of political ad targeting.
Another initiative coherent with, and relevant for the present initiative is the DMA (Digital
Markets Act), which would apply to Core Platform Services designated by the Commission
as gatekeepers, including their ad services.
Proportionality: Both options apply the principle of proportionality and necessity. This is
based on the assessment that the fragmentation of the relevant regulatory framework cannot
be addressed by independent action and requires intervention at EU level. All proposed
measures are proportionate to the objectives set, though the first suboption of option 2
regarding targeting goes further in restricting economic activity to protect rights. A
fragmented approach across Member States is unable to ensure an appropriate level of
protection to citizens across the Union, and the supervision of services would remain
inconsistent. However, the effectiveness and proportionality of the second option in reaching
the objectives is superior, not least in preventing future re-fragmentation of rules (something
which no other option is able to do).
8. PREFERRED OPTION
Against this assessment, the preferred option is a package comprising option 2 for the internal
market with suboption 2 on targeting, and option 2 for political parties (see table under point
5.2 above.). This preferred set of options would best meet the general objectives of the
intervention and would mutually establish a coherent and proportionate framework for
political ads in the EU. Further, the preferred option limits the impact on the electoral
systems as established by Member States in line with their respective traditions, focusing on
the cross-border dimension of the transparency of political ads. The limitations on the
targeting of political advertising are proportionate because they are strictly limited in scope to
the specific targeting activities in the political context that have been identified as posing a
significant risk to individual’s fundamental rights.
The choice of legal basis is justified by the need for a uniform application of the new rules,
such as the definition of political advertising and the transparency obligations that economic
operator must fulfil when preparing or disseminating political advertisement. It will reduce
legal fragmentation and provide greater legal certainty by introducing a harmonised set of
206
See also Blasi and Vermeulen, “Reflections on the murky legal practices of political micro-targeting from a GDPR
perspective,” International Data Privacy Law, 2021. https://doi.org/10.1093/idpl/ipab018 On offline activities, cf. also the
UK Information Commissioner’s Office (ICO) decision in the “Emma’s Diary” case, where the Labour Party profiled and
sent targeted direct mail to mums living in areas with marginal seats –which was incompatible with the purpose for which
personal data had initially been collected https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2018/08/emma-s-
diary-fined-140-000-for-selling-personal-information-for-political-campaigning/
207
Targeting often requires tracking individuals’ online activities, which in turn often implies processing information on the
individuals’ terminal – e.g. with cookies. This implies requiring prior consent. A proposal for an ePrivacy Regulation is
being negotiated. Its content is consistent with the transparency in political ads initiative.
208
See the guidance issued by the Commission in 2018 as part of the elections package, referred to above.
50
key elements for the provision high transparency standards for political advertising, which
will provide legal certainty for economic operators and prevent divergences hampering the
free provision of the relevant services within the internal market.
Specific objective Preferred option
Measures addressed to economic actors in the internal market
Transparency
Establish clear common standards in
political ads which provide market actors:
 clear common framing for political
advertising;
 Clear, proportionate specific obligations
for each category of actor and defined
conditions under which obligations are
incurred, on the basis of clearly defined
key terms;
 streamlined and proportionate reporting
and oversight requirements and support
for collaboration in the establishment of
technical interoperability standards;
Ensure common obligations and clear
common framing at EU level to provide:
1. Viewers of political ads with sufficient
transparency to enable them to:
 recognise a political advertisement as
such,
 understand the wider context of the
political advertisement and its aims,
 know the identity of the actors and
interests which have sponsored the
advertisement, and the other information
such as period of dissemination or
amounts spent.
2. ‘Interested actors’ of political ads with
sufficient transparency to enable them
to further determine:
 the chain of actors involved, including
the sponsor’s identity, the amounts of
money spent on the advertising and its
sources, linked to any wider associated
campaign or interest group;
3. Member States with sufficient
information (through enhanced
transparency) to enable the
monitoring and enforcement of
relevant rules on the financing,
preparation, placement and
dissemination of political advertising,
including those which regulate:
 expenditure;
 financial or material political
Common framing of political ads using
combined approach, building on existing
national definitions as well as self-identified
political and issues ads.
Passive obligation to retain information,
without prejudice to the proactive information
obligations toward targeted data subjects under
the GDPR and DSA. All economic actors in
scope retain relevant information regarding
transactions, including amounts, parties and the
use of targeting, where relevant. All economic
actors in scope provide extracted information
forward through the value chain to the eventual
ad publishers.
Obligations tailored to the relevant actors to
(proactively) provide citizens, and (upon
request) interested actors and public authorities
with adequate information on political ads
(this, in order to clarify obligations, facilitate
accountability and oversight and address the
issues associated with non-transparent ads).
These are considered to include:
 Ad publishers label political ads as such on
the face of the ad (regardless of medium),
and information to enable the wider context
of the political advertisement and its aims to
be understood (or clear indication as to
where this may be found), including on the
identity of the sponsor, the period of
dissemination, the amounts spent, or
meaningful detail about the targeting or
amplification techniques used where
applicable;
 Ad publishers which are VLOPS under DSA
provide the relevant additional information
in ad repositories, and include on the face of
the ad a link to its location in the repository;
 Ad publishers provide additional relevant
information in a suitably aggregated form, to
interested actors on request (e.g. on the
value chain, or aggregated information on a
specific advertisement campaigns).
 Online ad publishers enable access to
51
contributions;
 equality between candidates (e.g.
regarding parity of resources and airtime
during election campaigns);
 silence periods and the periods during
which ads are permitted;
 the nature of participants (e.g. third-
country corporate entities);
 the profiling and targeting of voters,
including through the use of personal
data;
information regarding relevant elections
(link to official site).
 Ad publishers disclose to the wider public
ex ante information on processing of
personal data involved in the service of an
ad by the ad publisher, other relevant
intermediaries or the entity on whose
interface the ad appears.
 Ad publishers publish information in their
periodic reports on the services provided, for
whom and for how much, including on
targeting services, aggregated to campaign
or candidate.
 Obligation to cooperate with competent
authorities, backed by provisions to
empower relevant authorities to support the
implementation of the initiative.
Targeting and other manipulative techniques
Establish common rules which impose
proportionate limits on the use of targeting
techniques for political ads, including
 enhanced transparency requirements;
 framing their use.
Recommend standards for specific
manipulative techniques, e.g. unlawful
amplification.
Establish common rules for political ads which:
- limit some targeting techniques – targeting
based on the special categories of personal
data provided in Art. 9 GDPR – unless
specific conditions are met, including:
 implementing and publishing a policy for
the targeting of political ads; and that
 keeping records on the use of targeting
(the relevant mechanisms, techniques and
parameters used and the source(s) of
personal data used).
Promote common standards to limit the use of
manipulative techniques.
Powers of oversight bodies
Common standards should support
oversight and audit, and the application of
sanctions.
Adequate powers to enable public authorities
to monitor and enforce the measures
envisaged in this initiative
Framework to enable the exchange of
information among economic actors in the ad
value chain to facilitate transparency
Powers for national competent authorities to
request information and to enable the exchange
of information among competent bodies within
and across Member States, to oversee the
compliance with this regulation.
Framework to enable the exchange of
information among authorities and market actors
in the ad value chain to ensure that transparency
is meaningful.
Further support, including for capacity
building, joint action and the exchange of good
practice
Measures addressed to political parties
Establish rules for EUPPs which promote the
fair and transparent use of political ads,
including:
 real time and meaningful provision of
information on expenditure;
Elaborated rules for EUPPs to ensure
transparent management and disclosure of
political ads, including obligations to publish
information with the political ads, to limit the
use of targeting techniques, as well as to retain
52
 meaningful ad labelling and the
provision of information about the use
of targeting techniques;
 limitations to the use of certain
characteristics or levels of granularity of
targeting.
Participation in ‘clear line of sight’ initiative
to support transparency in the political ads
industry.
Preparation of and/or commitment to a ‘fair
campaigning pledge’.
Promote awareness about the Commission’s
transparent political ads policies.
and disclose further information (including in
the repository below) to provide accountability
around the electoral period.
Support an independent platform and party-
neutral repository of information about political
ads activity in European elections, accessible in
real time by all citizens.
Soft measures addressed Member States to adopt standards for their national political parties
aligned to those for EUPPs, and to support fair campaigning pledges based on transparency,
open information and level playing field.
9. HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED?
The table below summarises tentative indicators proposed to monitor the achievement of the
operational objectives209
. An evaluation of the new legislative proposal should be conducted
within two years after the coming elections to the European Parliament, based on the
proposed indicators, and every five years thereafter. Dedicated reports and surveys launched
by the Commission including Eurostat and other entities will be used to monitor the situation.
Data on the following items will be collected through Eurobarometer and other surveys
directed to citizens. The existing oversight coordination mechanisms under the GDPR, the
AVSMD, and as foreseen for the DSA will be used to collect data. This will also be
addressed specifically in the work programme for the ECNE. The implementation of the
elements of the initiative will be assessed following each European Parliamentary election on
the basis of specific data collection conducted with the support of external contractors.
Operational objectives Proposed indicators Data sources
Establish common
transparency
standards in
political
advertising which
provide economic
actors with:
 Clear common framing for
political ads
 Clear and proportionate
specific obligations for each
category of actor and defined
conditions under which
obligations are incurred, on
the basis of clearly defined
key terms;
 Streamlined and proportionate
reporting and oversight
requirements and support for
collaboration in the
establishment of technical
interoperability standards;
 Reduced costs and risk for
 Access to the cross-
border political ads
market (the baseline
being the evaluation
and figures reported
in this impact
assessment).
 Increase in the
completeness of
information provided
on political
advertising (e.g.
labelling, targeting
techniques, paid
content, funding);
inclusion of such
Data shared
by Member
States
Stakeholders’
reports
Eurostat
(market
trends)
209
From the underlying study.
53
providing political advertising
services in the EU;
 A level playing field for all
relevant economic operators.
information in the
relevant publicly
available tools
including ad
repositories (textual
analysis, media
monitoring and
survey).
Ensure that the
common standards
established at EU
level provide
individuals with
sufficient
transparency to
enable them to:
 Recognise a political ad as
such;
 Know the identity of the
actors and interests which
have sponsored the political ad
and;
 Where relevant and in addition
to the transparency obligations
under the GDPR, know that
the political ads was targeted
to them and have access to
meaningful information the
targeting or other technique
being used and its democratic
impact210.
 Estimates of political
ads labelled as such
(baseline unknown);
 Percentage of users
that interacted with
labelled political
advertisement and/or
read the disclaimer
accompanying
political ads.
Data shared
by Member
States or by
publishers.
Surveys (the
baseline is
the
respondents’
response to
the OPC Q4).
Ensure that the
common standards
established at EU
level provide
‘interested users’
(researchers,
journalists and
other interested
actors in the
political process)
of political
advertising with
sufficient
transparency to
enable them to
determine:
 The full chain of actors
involved;
 The amounts of money spent
on the advertising and its
sources, and link this to any
wider associated campaign or
interest group;
 Meaningful and precise details
about the targeting used
(where relevant), including the
amounts spent on it, and the
sources of data used;
 The scope and period of
circulation of an advert,
including meaningful
information about variants and
organic distribution.
 Compliance with the
transparency
standards as reported
by interested
stakeholders (mainly
qualitative).
Stakeholders’
reports
Surveys (the
baseline is
the
respondents’
response to
the OPC Q4)
Establish common
standards to limit
the use of
targeting
techniques for
political ads during
certain periods or
for certain actors;
 Enhanced transparency
requirements would permit the
precise characteristics used to
be understood as well as the
role played by the platform’s
prioritisation algorithms, and;
 Demonstration to the wider
public of the measures taken
 Level of compliance
with EU standards
based on feedback
from Member States
including data
protection authorities
and citizens.
 Amounts and quality
Data shared
by Member
States
Surveys (the
baseline is
the
respondents’
210
To be interpreted as an obligation in addition and cumulative to the obligations under Articles 13 and 14 GDPR.
54
unless certain
conditions are met.
Recommend
standards for
specific
manipulative
techniques, e.g.
unlawful
amplification.
to minimise the risks posed by
targeting practices to
individuals’ rights and to
democratic societies at large.
of policies and other
information made
available by
companies and parties
on targeting and
manipulative
techniques.
response to
the OPC Q4)
Stakeholders’
reports
Ensure that the
common standards
established at EU
level provide
Member States
with sufficient
transparency to
enable oversight
and enforcement
of relevant rules as
regards the
financing,
preparation,
placement and
dissemination of
political
advertising, and to
support oversight,
and the application
of sanctions.
Including rules that regulate:
 Expenditure;
 Financial or material political
contributions;
 Equality between candidates
(e.g. regarding parity of
resources and airtime during
election campaigns);
 Silence periods and the
periods during which ads are
permitted;
 The nature of participants (e.g.
third-country corporate
entities);
 The processing of personal
data, including the profiling
and targeting of voters.
 Change in political
advertising:
completeness of such
information provision
(e.g. labelling,
targeting techniques,
paid content ranking).
 Compliance with the
EU level standards.
 User interaction with
targeted
advertisement; key
characteristics used
for targeted
advertisement;
compliance with
transparency
principles of political
advertisement;
existence of standards
aligned with the EU
level ones.
Data shared
by Member
States
Surveys
Stakeholders’
reports
(including
EUPP annual
reports,
where the
baseline the
current level
of
expenditure
on online
ads)
Establish rules for
EUPPs which
promote the
transparent use of
political
advertising,
including:
Promote
transparent
political ads
policies.
Soft measures
addressed to
Member States to
adopt standards for
their national
political parties
aligned to those for
EUPPs.
 Real time and meaningful
provision of information on
expenditure;
 Meaningful ad labelling and
the provision of information
about the use of targeting
techniques;
 Limitations to the use of
certain characteristics or levels
of granularity of targeting;
 Participation in ‘clear line of
sight’ initiative to support
transparency in the political
ads industry;
 Preparation of and
commitment to a ‘fair
campaigning pledge’.
 Compliance with EU
standards based on
feedback in particular
from the Authority for
political parties.
 Self-reporting of
compliance with EU
rules by the EUPPs
(based on
questionnaire).
Data shared
by Authority
Data
available in
the
Authority’s
ad repository
for EUPPs
Survey for
EUPPs
55
Annexes
Glossary and acronyms
Term or acronym Meaning or definition
Ad /
advertisement211
‘Advertisement’ (or ‘ad’) means – for the purpose of this impact assessment –
information designed to promote the message of a legal or natural person, irrespective
of whether to achieve commercial or non-commercial purposes, and generally
displayed against a form of remuneration specifically for promoting that information.
Advertising can take many forms on any medium, including but not limited to,
sponsored targeted messages, sponsored content, sponsored search results, paid-for
amplification in news feed or through relevance algorithms, promotion in rankings,
promotion of something/someone integrated into content (such as product placement),
‘influencers’ and other endorsements. The term is defined and applied variously in EU
and national law in a political context (see Annex 8), and these definitions and national
definitions of political party, campaign, campaign period, political aim, or any other
relevant definition used to establish the link with political ads would not be affected.
Ad library / ad
repository
Searchable database of advertising made available through application programming
interfaces and contains information about each advertisement, which can include212
the
content of the advertisement, the natural or legal person on whose behalf the
advertisement is displayed, the period during which the advertising was displayed,
whether the advertisement was intended to be displayed specifically to one or more
particular groups of recipients, and, if so, the main parameters used for that purpose,
the total number of recipients of the advertisement, and the amount spent.
Ad publisher213
Entity publishing a political ad:
 Offline, the entity which broadcasts, publishes or otherwise disseminates the ad to
the public;
 Online, the entity which makes an ad available on its own online interface, or via
an interface provided by another214
, where the ultimate interface of publication
merely displays content served by an intermediary, which is to be considered the
effective publisher.
Competent
authorities
Authorities designated by Member States to carry out enforcement tasks in line with
applicable law.
Disinformation False or misleading content that is spread with an intention to deceive or secure
economic or political gain and which may cause public harm215
.
European
political parties
(EUPPs)216
Political alliance which pursues political objectives and is registered with the Authority
for EUPPs and foundations.
211
Based on Article 2(n) of the proposal for a Digital Services Act (DSA).
212
The DSA includes specifications for the information to be retained by ad repositories maintained by very large online
platforms. Currently various platforms maintain repositories including different information.
213
See Article 2(n) DSA proposal:
https://eur-lex.europa.eu/legal-content/en/TXT/?qid=1608117147218&uri=COM%3A2020%3A825%3AFIN
214
Thus including including ad networks and exchanges which place ads programmatically on third party interfaces.
215
Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions on the European Democracy Action Plan – COM/2020/790 final – 3/12/2020:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2020%3A790%3AFIN (‘EDAP’).
56
ECNE European Cooperation Network on Elections
Misinformation217
False or misleading content shared without harmful intent though the effects can still
be harmful, e.g. when people share false information with friends and family in good
faith.
Online
platforms218
A provider of a hosting service which, at the request of a recipient of a service, stores
and disseminates to the public information, unless that activity is a minor and purely
ancillary feature of another service and, for objective and technical reasons cannot be
used without that other service, and the integration of the feature into the other service
is not a means to circumvent the applicability of EU rules applicable to online
platforms.
Political ad
(political
advertising)
Information designed to promote a message, published by any means, and which fulfils
at least one of the following conditions:
- being paid for by, or circulated on behalf of a political actor or;
- being published in a Member State during the period of three months before
European parliamentary elections, or during a nationally established reference period
which may reasonably be believed as seeking to influence the outcome of the election
or the voting behaviour of an individual or a group of individuals or;
- being published in a Member State outside a nationally established election
period and manifestly seeking to directly impact the outcome of an election, or the
voting behaviour of an individual or a group of individuals.
Such ads219
include ‘issues ads’, and are ads disseminated in the European Union
regardless of the medium (offline or online).
Programmatic
advertising
Process of automatically buying and selling digital advertising space on the basis of
pre-established criteria.
Profiling220
Any form of automated processing of personal data consisting of the use of personal
data to evaluate certain personal aspects relating to a natural person, in particular to
analyse or predict aspects concerning that natural person’s performance at work,
economic situation, health, personal preferences, interests, reliability, behaviour,
location or movements.
Recommender
system221
A fully or partially automated system used (for instance by an online platform) to
suggest in an online interface specific information to recipients of the service,
including as a result of a search initiated by the recipient or otherwise determining the
relative order or prominence of information displayed.
Targeting222
Directing an ad to a particular audience on the basis of certain shared characteristics.
216
Based on Article 2(3) to Regulation (EU, Euratom) No 1141/2014 of the European Parliament and of the Council of 22
October 2014 on the statute and funding of European political parties and European political foundations. Available over:
https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32014R1141
217
Definition from the European Democracy Action Plan (‘EDAP’).
218
Based on Article 2(h) DSA proposal.
219
Defined variously in EU and national law (see Annex 8), but for current purposes to include any form of communication
or representation on any medium disseminated in exchange for remuneration.
220
Based on Article 4(4) of Regulation 2016/679 of the European Parliament and of the Council on the protection of natural
persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive
94/46/EC (hereafter “GDPR”).
221
Based on Article 2(o) DSA proposal. See also the European Data Protection Board (hereafter ‘EPDB’) guidelines 8/2020.
Recommender systems follow a variety of criteria and designs, sometimes personalised for the users. This personalisation is
based on, i.e., a user's navigation history, profiles, or ratings they have provided other products, services or businesses
they’ve interacted with in the past on the platform. The prominence of information on a recommender system (news feed,
search engine, etc.) can be influenced by payment; this ‘amplification’ amounts to advertising – possibly political, depending
on what or whom is being amplified.
57
Targeting can use personal data which is obtained directly from a user, or observed or
inferred from the user’s online behaviour – about what they like, who they are
connected to, what their demographics are, what they have purchased, and more — to
tailor the recipients of a message to its intended audience, with the aim of increasing its
impact. Targeting is also described as microtargeting, to emphasise the perceived
granularity and accuracy of tailoring which can be achieved.
Very large online
platforms223
(VLOPs)
Online platforms which provide their services to a number of average monthly active
recipients of the service in the Union equal to or higher than 45 million. Designated by
authorities once they reach a user-base of over 10% of the EU population, entailing
significant societal risks in the EU. See respectively Articles 24 and 30 of the DSA
proposal
222
EDPB guidelines 8/2020. See also https://blog.mozilla.org/internetcitizen/2018/10/04/microtargeting-dipayan-ghosh/,
quoted in Election-Watch-EU and OSCE Policy Paper of April 2021 on Artificial Intelligence’s (AI) Impact on Freedom of
Expression in Political Campaign and Elections.
223
Based on Article 25 DSA proposal. The DSA foresees that VLOPs will be designated as such by the competent authority
provided under the DSA.
58
Annex 1: Procedural information
1. Lead DG, DEcide Planning/CWP references
The Staff Working Paper was prepared by the Directorate-General for Justice and
Consumers.
The Decide reference of this initiative is PLAN/2020/8647.
2. Organisation and timing
The Impact Assessment was prepared by DG JUST as the lead Directorate-General.
The Inter-Service Steering Group established for this initiative was associated and
consulted several times in the process with meetings on 30 April, 7 June, 30 June and
finally on 25 August 2021, under the coordination of the Secretariat-General. It included
the following services: DG COMP (DG Competition), DG COMM (DG
Communication), DG CNECT (DG Communications Networks, Content and
Technology), DG EAC (DG Education and culture), DG FISMA (DG Financial Stability,
Financial Services and Capital Markets Union), DG GROW (DG Internal Market,
Industry, Entrepreneurship and SME), DG JUST (DG Justice and Consumers), JRC
(Joint Research Centre), DG RTD (DG Research and Innovation), SJ (Legal Service), SG
(Secretariat-General), EEAS (European External Action Service).
The last meeting of the ISSG, chaired by the Secretariat-General of the European
Commission was held on 25 August 2021 (minutes attached).
3. Consultation of the RSB
An upstream meeting took place on 11 February 2021 and the recommendations of the
Regulatory Scrutiny Board were duly taken into account. The Regulatory Scrutiny Board
discussed the draft impact assessment in the hearing that took place on 29 September
2021.
4. Evidence, sources and quality
The evidence base is drawn in particular from the following:
 The implementation of the Commission’s September 2018 electoral package224
,
as described in the Commission’s report on the 2019 elections225
;
 The experience combatting disinformation and other forms of information
manipulation and interference in democracy guided by the Action Plan against
disinformation226
, most recently reported on in the Commission and High
Representative’s joint Communication, “tackling COVID disinformation”227
;
224
https://ec.europa.eu/commission/presscorner/detail/en/IP_18_5681
225
https://ec.europa.eu/info/sites/info/files/com_2020_252_en_0.pdf and
https://ec.europa.eu/info/sites/info/files/swd_2020_113_en.pdf
226
https://eeas.europa.eu/headquarters/headquarters-
homepage_en/54866/Action%20Plan%20against%20Disinformation
227
https://ec.europa.eu/info/sites/info/files/communication-tackling-covid-19-disinformation-getting-facts-right_en.pdf
59
 The Commission’s assessment of the first year of operation of the self-regulatory
Code of Practice on Disinformation228
;
 The preparatory studies and open consultation for the European Democracy
Action Plan229
, the 2020 EU Citizenship Report230
and the Digital Services Act231
,
as well as an ongoing study on the use of digital tools in elections;
 Standard Eurobarometer 94.1 (the fieldwork for which was conducted in
December 2020), which included five specific questions on elections relevant to
this initiative, and other relevant Eurobarometers232
;
 Other material as necessary, including the substantial research performed by the
Joint Research Centre within the Enlightenment 2.0 research programme233
;
 The work of the European Cooperation Network on Elections, including its
mapping of relevant national laws and procedures;
 An open public consultation on the present initiative and bilateral meetings with
stakeholders (see Annex 2); and
 A dedicated study from VVA with a backward-looking baseline description of the
status quo and analysis, including a comprehensive legal and policy mapping of
relevant national provisions determining political advertising in general,
advertising in political campaigns, as well as the conduct and financing of
political campaigning (“the underlying study”)234
.
5. Implementation plan
An implementation plan will be prepared, tailored to the policy option pursued.
Evaluation of implementation of measures before, during and following the elections will
be conducted as a part of the usual reporting process (would be included in the legislative
proposal).
228
https://ec.europa.eu/digital-single-market/en/news/assessment-code-practice-disinformation-achievements-and-
areas-further-improvement - Staff Working Document (SWD(2020)180)
229
https://ec.europa.eu/info/sites/info/files/report_edap_public_consultation_final.pdf
230
https://ec.europa.eu/info/files/report-public-consultation-eu-citizenship-rights-2020_en
231
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12418-Digital-Services-Act-package-ex-
ante-regulatory-instrument-of-very-large-online-platforms-acting-as-gatekeepers and
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12417-Digital-Services-Act-deepening-the-
Internal-Market-and-clarifying-responsibilities-for-digital-services
232
Flash Eurobarometer 485 on EU Citizenship and Democracy
https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/survey/getsurveydetail/instruments/flash/surveyky/2260
; The 2019 post-electoral survey https://www.europarl.europa.eu/at-your-service/files/be-
heard/eurobarometer/2019/post-election-survey-2019-complete-results/report/en-post-election-survey-2019-report.pdf;
Standard Eurobarometer 90 – Media use in the European Union, December 2018
https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/ResultDoc/download/DocumentKy/86432; Special
Eurobarometer 477 Democracy and elections
https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/search/477/surveyKy/2198;
Flash Eurobarometer 469 Illegal content online
https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/search/online/surveyKy/2201;
Flash Eurobarometer 464 Fake News and Disinformation Online
https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/search/online/surveyKy/2183;
Special Eurobarometer 447 Online Platforms
https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/search/online/surveyKy/2183.
Special Eurobarometer 507 Democracy in the EU https://fronteirasxxi.pt/wp-content/uploads/2021/06/ebs_507_en.pdf
233
https://ec.europa.eu/jrc/en/enlightenment-research-programme
234
For the underlying study see https://ec.europa.eu/info/files/study-preparation-impact-assessment-political-
advertising_en; and for it annexes https://ec.europa.eu/info/files/annexes-study-preparation-impact-assessment-
political-advertising_en
60
Annex 2: Stakeholder consultation
1. THE STAKEHOLDER ENGAGEMENT STRATEGY
The Commission conducted wide consultations on issues related to political advertising,
digital services and online platforms between January and May 2021. The consultation
process built upon other consultation, which helped identify the key issues at stake as
well as options and their assessment. An open public consultation (“OPC”) from 22
January to 2 April 2021 and a consultation on the inception impact assessment published
on 26 January 2021 provided information to develop the problem definition and policy
options. The OPC was promoted through the Commission’s website, as well as through
specific networks. Broad outreach to the wider stakeholder community was organised by
Communication services of the European Commission (notably via social media).
The Commission organised meetings with key stakeholders to gather additional evidence
and data on the specific problems addressed by the initiative, as well as on the policy
approach and its impacts. It also conducted targeted bilateral consultations and analysed
numerous position and analytical papers received especially in the context of the
preparation of the initiative. The preparation of this impact assessment was also
supported by an external study. The contractor also conducted a series of individual
consultations with key stakeholders (see section 4 below).
Relevant work in the Council (including in the relevant working parties) and in the
European Parliament (including in the Committees in charge of Constitutional Affairs,
Legal Affairs; Civil Liberties, Internal Market and Consumer Protection, Justice and
Home Affairs and the Special Committee on Foreign Interference) has provided
significant input to this process235
.
The stakeholder engagement strategy aimed at gathering the input of the following
actors:
1. Private sector. The Commission collected the input of businesses involved in the
value chain of political advertising:
a. Online intermediaries, including internet service providers;
b. Advertisers, which constitute the link between political actors and service
providers;
c. Telecommunication services;
d. Publishers Trade and business associations representing the different
interests of the businesses of the above categories, as well as SMEs.
2. National authorities including through the European Cooperation Network on
Elections;
3. Political parties at EU level;
4. Civil society organisations advocating for fundamental and democratic rights (such
as digital rights) and representing the interests of vulnerable groups;
5. Journalists and media organisations;
6. Academia and information technology communities;
235
For example, the INGE and IMCO Committees of the European Parliament had specific meetings on political
advertising.
61
7. International organisations working on democratic issues such as IDEA
International236
and the Council of Europe237
;
8. General public including citizens themselves through the OPC of which a thorough
data analysis has been conducted.
The different consultation tools and an overview of the results are described below.
2. OPEN PUBLIC CONSULTATION (OPC) – 22 January to 2 April 2021
In total 137 responses were received in the context of the OPC. Most feedback was
received from citizens (EU citizens 48%, and non-EU citizens 1.4%), NGOs (20.4%),
and business associations (9.5%). There were followed by ‘Other’ (6.5%), private
companies (5.8%), public authorities (4.3%), academia (2.1%), consumer organisations
(0.7%), and trade unions (0.7%).
The majority of respondents were from the EU. Their six main countries of origin were
Belgium (21.1%), Germany (10.9%), Italy (9.4%), France (8.7%), Czech Republic
(6.5%) and Spain (6.5%). In addition, 12 position papers were submitted (see point 3.6
below).
2.1 Definition of political advertising
On defining political advertising, the only item that respondents did not consider part of
the definition of political advertising was essential information about an election.
Respondents were split as to “get out to vote” campaigns should be also covered. A small
majority considered issue based ads as political advertising (61.3%).
58.3% of respondents considered that the definition of political ads should be set in law,
while 27% deem that it should be dynamically adaptable. The former state that a legal
definition is required to (a) provide legal certainty, (b) prevent grey areas and loopholes,
(c) have a strong framework to prevent electoral manipulation and (d) to clearly frame
restriction on freedom of expression. The arguments for a dynamic definition are to (a)
236
https://www.idea.int/
237
https://www.coe.int/en/web/portal
62
allow quick modifications due to rapid evolutions in technology, (b) ensure fair
competition and (c) that many political contents would not clearly be included in a fixed
definition. Some advocated for a legal definition, which should be dynamically
adaptable.
2.2 Prior experience with political advertising
Most respondents had encountered political advertising before, mostly in the form of
posters (32.2%), online (26.3%), and on TV (10.9%). 77.4% have seen online political
advertising.
Respondents were asked if they consider they can easily retrieve pieces of information in
current online political advertisements. The responses clearly indicate a lack of, or
unequal transparency in many different categories. The most striking missing items are
- a) information about who is sponsoring the ad;
- b) information about the amount paid;
- c) information regarding the use of targeting.
The majority of business associations and companies did not provide answers to these
questions.
Respondents largely indicated being unable to identify information about the sponsor of
political advertising they had encountered. A large majority of them would favour the
disclosure of this information in the ad itself.
63
EC public consultation on political advertising – improving transparency: respondents’
views on the need to disclose the sponsor of political advertising in the ad itself
2.3 Potential legislation on online political advertising at EU level
The majority of respondents (62%) were in favour of a legislative action at EU level on
the funding of political advertising. It is worth noting that there is a significant number of
respondents (29%) who did not position themselves on this issue (11.7% maybe, 5.8%
don’t know, 11.7% blank), mainly among business associations and companies.
In their comments, several underlined the diversity of legislation across Member States
as an issue. Some respondents wrote that harmonised EU legislation would prevent
national authorities to circumvent their own rules. For the ones favouring legislation
action at EU level, they suggested focusing on transparency of funding of political parties
and foreign donations.
For the ones against an EU legislative intervention, the most commonly used argument
was that electoral matters is a national prerogative. However, they would support the
exchange of best practices and the adoption of guiding principles.
On the sources of funding, the table below clearly shows a trend towards a citizen and
participatory approach with preferences for political advertising being funded through
crowdfunding and by EU citizens. Most respondents voted against anonymous donations
and funding from foreign sources, underlining a will to keep political campaigns outside
the reach of external actors. This is confirmed by the fact that 70.1% of respondents are
concerned with the influence of foreign actors. In general, business associations,
companies, and public authorities did not position themselves on this issue.
64
Specific questions required the respondents to give their opinion on certain limitations at
EU level. 43.8% of respondents (mostly citizens) indicated that the EU should limit the
amount of money allocated to political advertising per campaign. All business
associations, companies, and public authorities disagreed or did not answer.
46% agreed with the statement that the EU should limit the amount of money that a
party, candidate, or campaign can receive from a single source. Again, this is supported
mostly by EU citizens, while business associations, companies, and public authorities
disagreed or did not reply.
Subsequent questions required respondents to state the desirability of several disclosure
requirements. 80.3% agreed that there should be EU rules requiring all political
advertising to be clearly and specifically labelled. 72.3% indicated that all sponsors of
political ads should be disclosed within the ad itself and 64.2% that there should be rules
requiring political ads to be truthful and not misleading. While positive replies were
equally spread across stakeholders for the two first questions, business associations and
companies showed more reluctance regarding truthfulness requirements.
There was more uncertainty with regard to the need to regulate the allocation of online
advertising space during election times (47.4% yes, 13.9% no, 19% maybe, 9.5% don’t
know, 10.2% blank). Positive replies came from EU citizens, public authorities,
academia, and NGOs.
2.4 European Elections & online political advertising
Several questions specifically zoomed in on the aspect of European elections. A majority
of respondents (68%) voiced their support for common political advertising rules for
European elections. Some of them argued that as Members of the European Parliament
are all elected to the same body, they should run under the same conditions. Others
reiterated the importance of transparency requirements to ensure the quality of European
elections. A majority of respondents, across all stakeholders support specific measures to
increase oversight of competent authorities (73.7%).
On the identity of ad placers, a small majority (57%) of respondents favoured residence
in a Member State, although disagreeing as to whether it should be limited physical
persons or not. A fair share (25%) would prefer to set the Member State where the ad
will circulate as the criterion. Most business associations and companies did not reply.
65
The table below shows that there is a high demand for transparency when it comes to
online political advertising sponsored by European political parties (EUPPs) as well as a
certain distrust towards certain amplification and data-driven techniques such as
targeting. However, political advertising should not be restricted for EUPPs. While again
the ‘yes’ responses come primarily from EU citizens, NGOs have joined the former
while major platforms and some business associations have refrained to vote.
2.5
Transparency
requirements
and
advertisement
repositories
On ads
repositories, 71%
of respondents
would like that
publishers of
political ads retain at least basic information from those placing the ads. 67% responded
that service providers involved in political ads should also have obligations to retain and
provide information. 68% of the respondents stated that beyond competent authorities, all
political ads should also be available to citizens. The specific content that should be
retained can be found in figure 5. The majority of respondents has shown its support for
retaining extensive information. Around 35% left a blank answer for each option, most
notably companies, including online platforms and business associations.
2.6 Targeting and amplification methods
57.7% of respondents, mostly EU citizens, NGOs, and public authorities, favoured
additional limits on targeting and amplification methods, besides compliance with data
protection rules. Few respondents submitted additional comments, proposing limits
ranging from stricter data protection rules, stricter transparency requirements, to rules
diminish the misleading potential of such techniques. Among these 57.7%, respondents
66
favoured either a ban of targeting and amplification, or an opt-in by the user. While most
business associations and companies did not reply, EU citizens, NGOs, academia, and
public authorities further considered that the EU should regulate the following
amplification methods: paid for likes, bot software and paid for influencers. 41.6% of
respondents, spread across stakeholders, replied that the targeting of political ads could
be allowed for certain criteria if relevant data protection rules are complied with.
2.7 Positions of European political parties (EUPPs) and national parties
EUPPs were invited by letter to provide their input on the initiative. Five EUPPs
submitted a contribution, the European People’s Party (EPP), the Alliance for Liberals
and Democrats for Europe (ALDE), the European Green Party (EGP), the Party of
European Socialists (PES) and the European Free Alliance (EFA).
All five parties support common rules at EU level. EFA highlighted that if the EU wants
to create a stronger European-level democracy, EUPPs must be allowed to operate on a
European level. The four other parties mentioned that this is particularly needed because
they are concerned by the practice of very large platforms to limit the placement of
online ads to the country in which they have a registered office, limiting their ability to
reach out to citizens across the whole EU. Consequently, these four parties were in
favour of allowing any person or legal person residing in any Member State to place an
ad. Specifically, ALDE proposed to establish ‘election labels’ for political advertising of
EUPP in the context of European elections. Regarding definition, PES and EPP
supported an extensive definition, which includes ‘get out to vote’ campaigns, while the
EGP preferred to exclude them. Both PES and EGP would set such definition in law. The
same two parties agreed that civil society actors should be subject to the same rules as
political parties when placing political ads.
PES, EPP, EFA and EGP agreed that there should be rules at EU level regarding how
political ads are funded, with the PES only accepting crowdfunding as a valid source.
Not all parties agreed that disclosing all sponsors of an ad was necessary - PES and EGP
and EFA did. EPP and PES consider that European parties should disclose their ad
expenditures in real time. EFA supported the creation of a common database of political
advertisements to be kept, with relevant information on who is paying for the ad, the
amount spent, target audience, etc. PES, EFA and EGP agreed that such ad repositories
should be made available to citizens, while EPP suggested that only competent
authorities should have this access. They had different views regarding transparency
disclosure. EFA indicated that levels and limits of spending for national elections should
be set at national level, and that an EU approach as to how these ads can be funded would
be beneficial.
On targeting and amplification techniques, four parties (the fifth one did not take a
stance) considered that EU data protection rules would be sufficient to protect EU
citizens. EGP was open to a limit the processing of personal data for targeting and
amplification, namely via an opt-out for users. EUPPs had different views regarding
transparency disclosure on targeting: ALDE and EGP agreed that European parties
should maintain examples of ads; ALDE and EPP were in favour of disclosing the
targeting services used. .
Furthermore, national political parties were consulted too, albeit indirectly: Member
States were requested to transmit the consultation letter to their national parties and
consult them, in order that Member States’ position in the consultation reflect the
national views on the initiative. Very few replies were received from national political
parties and could not be considered as representative.
67
2.8 Position of other stakeholders
Below are the results of the consultation, broken down by category of respondents
Civil society organizations support high transparency around political ads including
which adds are shown to whom, why, and who has paid for them238
. They referred to the
fact that the EU Code of Practice against Disinformation (soft measures) was not
sufficient in this perspective as information for instance on targeting criteria was missing
and many false positive and negatives occurred. They also requested the issue of
targeting to be addressed beyond transparency239
. Some have asked for a ban of targeting
techniques for political ads (foreseen, during reference periods, under sub-option 2 of
policy option 2)240
. Some CSOs advocated for an obligation to set up ad repositories
(interoperable at EU level)241
, and also underlined that ads that are removed should
remain visible in ads repositories242
, as envisaged in policy option 2 for very large online
platforms.
Member States welcomed the initiative and agreed with the need to regulate at EU level
(online) political advertising243
. Member States also repetitively supported measures that
will enhance the cooperation from platforms (foreseen in both policy options) including
access by researchers to more information on political ads (addressed in policy option 2).
Certain have highlighted the limits of non-binding measures, the importance of
transparency (binding) requirements on funding244
and support establishing a common
definition of political advertising245
- which is envisaged in policy option 2.
Industry stakeholders have asked for a common EU definition that allow them to
determine which ads are political ads246
and a common approach to provide for
proportionate requirements to label sponsored political ads247
, including as regards the
identity of the sponsor of the ad. Both the establishment of an EU definition of political
ads and the introduction of labeling requirements are measures included in policy option
2. Industry “offline” stakeholders strongly requested a level playing field with online
stakeholders248
. Broadcasters asked for binding minimum standards for political ads on
online platforms and supported a ban on online targeting for political purposes –
envisaged under suboption 2 of policy option 2249
. At a stakeholder meeting on 11 May
238
See, for instance, contribution by Who targets me (NGO) to the OPC, the statement issued by a coalition of 31 civil
society organisations and experts (European Partnership for democracy), the position of Transparency international.
239
For instance, the Association for International Affairs in Prague stated in its contribution to the OPC that targeting
should be fundamentally regulated to avoid cases of election manipulations such as Cambridge Analytica.
240
See, e.g. the contribution to the OPC of Centro per la Cooperazione Internazionale (NGO).
241
Highlighted by the European Partnership for democracy in its contribution to the OPC.
242
Dedicated meeting of 31 March 2021 with civil society organisations.
243
See for instance, discussion in EUROPEAN COOPERATION NETWORK ON ELECTIONS on 25 March 2021.
244
See contributions of media regulators (ERGA) in the OPC.
245
See, e.g., German Media Authority (DLM) in the OPC.
246
E.g. Facebook, Google and Tiktok, among others.
247
E.g. Tiktok.
248
E.g. the European Publishers Council and the Association of Commercial Television in Europe. Mediaset (off line
operator) stated, for instance, that compliance with all its obligations related to political advertising requires 10 full
time employees, which contrasts with the less regulated sector of online ads
249
Written contribution of EGTA - association of television and radio sales houses
68
2021, small tech providers requested a clear set of rules clarifying what is political ads,
who can sponsor them and applicable transparency requirements.
EUPPs have pointed out that labelling measures that help citizens to identify when they
are being exposed to a political ad will contribute to strengthen European democracy250
.
They were particularly concerned about how the policy implemented by Facebook
negatively affected their activities at EU/cross border level251
.
For citizens, the OPC shows that when it comes to targeting a majority supports a ban of
targeting and or amplification or an opt-in. A minority could accept targeting if framed
by criteria and data protection compliance. Besides, most citizens believe that publishers
of political ads should retain certain basic information from those placing such ads,
something addressed by both policy options.
Other stakeholders: The supporting study by the contractor integrates a literature review
in section 2.1. There is an emerging academic consensus on the need for specific
transparency for political ads and controls on the use of personal data in connection with
political ads online. Guidance from international standard setting bodies such as the
Council of Europe also call for specific transparency of political advertising, including in
particular on sponsor and funding, and where online, on the mechanism for delivery
(algorithms, data).
3. DEDICATED STAKEHOLDER MEETINGS
Stakeholders meetings were conducted with preparatory work ahead of each meeting,
including providing stakeholders with guiding questions structured to cover key aspects
of the IA, namely: scope and definition, the use of targeting and data-driven
technologies, the legal and regulatory framework, and solutions and options. Each group
of stakeholders received tailored questions aimed at taking into account their
specificities. Meetings were moderated in a way, which allowed each stakeholder, to
voice his and her position beyond the questions being transmitted and make comments
on the envisaged initiative.
Meetings with private sector actors and civil society organisations were composed 15
stakeholders.
3.1 Dedicated meeting of the Rapid Alert System (RAS)
On 18 March 2021, the Commission presented the state of play of the initiative and
called for contributions during a dedicated meeting of the Rapid Alert System.
Representatives of Member States were present as well as the European Regulators
Group for Audiovisual Media Services. This meeting provided the opportunity to
Member States to share their views and raise relevant points for discussion.
3.2 Ninth meeting of the European Cooperation Network on Elections (ECNE)
On 25 March 2021, Member States’ experts were consulted in the framework of the
European Cooperation Network on Elections. The Commission outlined envisaged
250
E.g. ALDE.
251
E.g. the Greens and the EPP.
69
options for measures as set out in the inception impact assessment.252
The Commission
has shared the legal mapping to the membership of the network beforehand. Each
Member State then had the opportunity to complete the mapping as well as present its
legal context at the meeting.
Most Member States’ experts indicated that political advertising is regulated at national
level through legislation on political party financing, broadcasting and print media, and
electoral and campaign rules. The discussion showed that there is no uniform approach as
to how to define political advertising, which authority is competent, and how to further
regulate. Some Member States provide for extensive regulation while others regulate less
and emphasise monitoring and oversight. Some noted insufficient cooperation from
platforms with national authorities as well as limitations of existing ad repositories. Other
underlined the insufficient enforcement of the Code of Practice on disinformation.
Experts suggested to limit microtargeting. Online advertising brings some benefits as it is
increasingly shifting to the online environment, partly due to the pandemic of Covid-19.
Experts underlined the need for complementarity between legislative instruments such as
the DSA, the GDPR, the Code of Practice on disinformation, and the envisaged initiative.
3.3 Dedicated meeting with signatories of the Code of practice on disinformation
and private sector industry associations
On 26 March 2021, the Commission has organised a dedicated meeting to collect the
input of the key stakeholders, signatories of the Code of Practice on disinformation and
representatives of industry associations, mainly from the advertising and
telecommunications fields. Overall, participants largely welcomed the initiative. There
was a general call for clear and long-lasting definitions. Participants underlined that
national legislations widely vary across the EU and platforms have different policies for
political advertising. Participants supported harmonised legislation across the EU, with
platforms emphasising the need to adopt rules, which fit each platform’s specificities.
Twitter and TikTok indicated that they do not allow political advertising on their
platforms. The issue of influencers has been raised as a tricky evolution, which makes
proper monitoring of political advertising difficult. Snapchat insisted on the importance
of human review of ads as well as the need to provide for regular updates of ad
repositories, of which the access should be granted both to researchers and citizens.
On targeting, Google indicated having introduced limitations regarding allowed criteria,
being limited to age, gender, location, and general interest. Mozilla and the Association
of Commercial Televisions (ACT) called for a limitation of targeting, notably drawing on
data protection rules.
ACT suggested that the priority of regulation should be to increase safeguards for
citizens rather than facilitating business activities of platforms. ACT also called for
standards, which apply offline, to apply to the online environment. Google and ACT had
different view as to whether ads that were taken down for policy violation should be
disclosed in ad repositories.
3.4 Dedicated meeting with civil society organisations
On 31 March 2021, the Commission held a dedicated discussion with civil society
organisations involved in the defence of digital rights and the representation of
vulnerable groups’ interests. The following international organisations -IDEA
252
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12826-Political-advertising-improving-
transparency_en
70
International and the Council of Europe- also took part. Overall, the Commission’s
initiative was largely welcomed by the participants.
As other stakeholders, participants underlined the importance of articulating the initiative
with other legislative instruments. Some participants stressed that it might be efficient to
address on ad buyers and political parties when it comes to facilitating the enforcement
of obligations. Common points with the ECNE meeting were shared such as the need for
a stronger cooperation between Member States as well as increased communication
between national regulators and online platforms. Participants pointed at weaknesses in
the regulatory framework of Member States. Only 5 of them have monitoring
mechanisms for online expenditures of political parties during online campaigns.
On targeting and other techniques, several issues were highlighted by participants.
Firstly, political parties are increasingly dependent on targeting to compete, and it
favours more the affluent parties. Secondly, targeting lacks a clear definition. Thirdly, it
is very difficult to know how algorithms work. Lastly, major platforms do not respect
data protection rules. Participants largely agreed that users should explicitly allow their
data to be used. Ad quotas can help increase accountability of political parties.
Regarding policy options, addressing political party financing was mentioned as a way to
increase transparency that would allow to tackle the issue of influencer marketing, which
is not covered by the DSA. Most participants agreed with the fact that ads that are
removed should remain visible in ads repositories to allow researchers to work, and
authorities to make parties accountable. Increasing national authorities’ capacities and
resources was deemed to be crucial to enforce regulations.
3.5 Private sector
On 12 May, the Commission met with the representatives of the broadcasting sector and
SMEs (ACT, AER, EGTA, Schibsted, FEDMA, AIB Europe, News Media Europe,
European Newspaper Publishers Association, EASA, EACA, DOT Europe, DDMA,
EDAA) where the envisaged initiative was presented with its context, issues addressed
and possible options. Most participants mentioned the need to make sure that what is
forbidden offline is also forbidden online and that a common “political advertisement”
definition is needed. Some concerns on microtargeting and the use of political data were
expressed.
3.6 Written contributions and papers253
The following stakeholders have submitted, through or outside the OPC, a position or
policy paper, shared significant material, or held bilateral meetings with the Commission:
1. ALDE - Alliance of Liberals and Democrats for Europe
2. EGP - European Green Party
3. EPP - European People's Party
4. PES - Party of European Socialists
5. EFA - European Free Alliance
6. AMO - Association for International Affairs
7. ACT - Association of Commercial Televisions
8. Avaaz Foundation
9. Belgian Association for Human Rights and Development
10. CCIA - Computer and Communications Industry Associations
253
We have received more documents than the number of stakeholders.
71
11. DLM - The Directors’ Conference of the State Media Authorities (Die Medienanstalten -
German Media Authority)
12. EACA - European Association of Communication Agencies
13. EDRi - European Digital Rights
14. Election.Watch.eu
15. EPC - European Publishers Council
16. EPD - European Partnership for Democracy
17. EU Disinfo Lab
18. Facebook
19. GISAD - Global Institute for Structure Relevance, Anonymity and Decentralisation
20. Google
21. IAB - Interactive Advertising Bureau
22. IDEA International
23. Institute for Information Law University of Amsterdam
24. Ireland’s Department of Housing, Local Government and Heritage
25. Lithuania’s Electoral Commission
26. National Electronic Mass Media Council (Latvia)
27. ALIA - Autorité Luxembourgeoise Indépendante de l'Audiovisuel
28. Oana Goga Univ. Grenoble Alpes, CNRS
29. Panoptykon Foundation
30. Newsguard
31. CDT - Centre for Democracy & Technology
32. ERGA - European Regulators Group for Audiovisual Media Services
33. PROVIDUS
34. RESET.tech
35. Snapchat
36. TikTok
37. Twitter
38. Who Targets Me
4. SPECIFIC CONSULTATION CONDUCTED BY VVA
The contractor VVA has been commissioned to provide a study to support the
preparation of the initiative. Supported by targeted questionnaires, VVA has conducted
an extensive range of individual interviews with a total of 67 stakeholders coming from
all relevant categories, indicated in the table below. These interviews and the insights
shared therein gave access to VVA to data otherwise inaccessible publicly, and allowed
VVA to draw pertinent conclusions or simply to confirm arguments made in the
literature.
Type of stakeholder Number of interviews conducted per stakeholder
type254
International organisations or EU
Institutions
13
Member States Administrations 9
Political parties and candidates 7
Other political actors255
3
254
Some stakeholders were consulted twice on different aspects. Different departments of some organisations were
contacted too.
72
Civil society organisations256
7
Academia 4
Service Providers257
23
TOTAL 67
5. OPEN PUBLIC CONSULTATION on EDAP
In the public consultation on the European Democracy Action Plan258
, respondents were
asked whether they have been targeted259
with online content that related to political or
social issues, political parties (either European or national), political programmes,
candidates or ideas within or outside electoral periods [referred to as ‘targeted political
content’]. They have also been asked whether this has occurred only ones or several
times.
Out of 269 respondents including individuals, NGO/academia as well as business
associations and organisations, 71% have been targeted with such content several times.
More specifically, as regards individuals, 72% (out of n=205) were targeted with such
content once or several times. Similarly, the majority of companies/business
organisations responding to this question were also targeted more than once (9 out of
n=10). NGOs/academia also expressed similar experience and the percentage for this
category of respondents amounts to 86% (out of n=43) for those targeted ones or several
times. The responses received to this question show that most respondents (n=269),
whether citizens, NGO/academia or company/business association) answering this
question were targeted and the majority of these were targeted several times.
255
Political actors other than political parties that seek online political advertising services active in issue-based
advertisement.
256
Civil society organisations whose activity revolves around online political advertising.
257
Including umbrella organisations that represent at least 9000 organisations and 131 000 employers from the digital
advertising sector and approximately 5000 broadcasting organisations
258
Report on the Public Consultation for the European Democracy Action Plan (EDAP) – September 2020, not
published yet.
259
‘Targeted’ referring to any paid-for advertisements and any form of personalised content promoted to the user.
73
Similar rules for offline and online political ads: Also, In the public consultation on the
European Democracy Action Plan, 83% (from n=280) of respondents including civil
society organisations, national authorities, different associations and some platforms
agree that similar rules should apply for offline and online-targeted political content to
ensure a certain level-playing field with broadcasters, radios for which the political
advertising is strictly regulated.
At EU level the proposed initiatives aimed to strengthen the enforcement of rules
relevant to the electoral context receiving most support – during the EDAP public
consultation – included: European-level obligations on political advertising service
providers (supported by 79% n=271), European-level shared online monitoring and
analysis capability being made available to national authorities (73% n=271) and
strengthened the exchange of information and monitoring activity across borders
and between authorities (67%). Cross-border recognition of certain national provisions
received the lowest percentage (41%).
Issue-based advertising and sponsored content of political context
In the public consultation on EDAP, there was broad agreement by respondents,
including platforms, civil society organisations and other stakeholders to label sponsored
issue-based advertisement (92% support from n=263).
74
The public consultation revealed some divergence of views on the issue whether issue-
based advertisement should be treated the same way as political advertisement, but
several stakeholders pointed to the difficulties to distinguish between the different
categories of advertisement.
81% (from n= 254) also support mandatory advertisement repositories/libraries for issue-
based advertisement.
More specifically, the NGOs responding to the public consultation on EDAP were almost
unanimously supporting labelling of issue-based advertising, and almost all the
respondents either fully agreed or somewhat agreed that issue based-advertising should
be subject to similar transparency requirements as political advertising (see Figure 3:
EDAP public consultation civil society responses). All the NGOs disagreed, that issue-
based advertising should be left unregulated.
Figure 1: EDAP public consultation civil society responses
In the public consultation on the European Democracy Action Plan260
, initiatives that
received the strongest support by civil society organisations, stakeholders as well as
individuals include:
(i) disclosure rules supported by 96% (from n=279) of respondents (supporting
‘absolutely’ or ‘a lot’) including civil society organisations, stakeholders and
individuals.
260
Report on the Public Consultation for the European Democracy Action Plan (EDAP) – September 2020, not
published yet.
75
(ii) creation of open and transparent political advertisements archives and registries
supported by 91% (from n= 273) (supporting ‘absolutely’ or ‘a lot’)
(iii) political parties to disclose their campaign finances broken down by media outlet
supported by 90% (from n=276).
(iv) limitation of micro-targeting of political content supported by 83% (from n=
277) (‘absolutely’ or ‘a lot’)
Significant support was also received for limiting targeted political content on the
election day/just before (supported by 67% ‘absolutely’ or ‘a lot’ from n=273) and
prohibiting foreign online targeted political content (supported by 60% ‘absolutely’ or ‘a
lot’ from n=273). The views of respondents were rather mixed with respect to prohibiting
targeted political content altogether, which is the option receiving the lowest supporting
rate, with 29% in favour (from n= 272).
In addition, still in the public consultation on EDAP; 69% agree that microtargeting
should be strictly limited:
76
Finally, in the 2020 public consultation of the European Democracy Action Plan, 38 out
of 43 NGOs responding to the question fully agreed that micro-targeting criteria of
political advertisement should be disclosed in advertisements.
Figure 2: EDAP public consultation civil society responses
77
Annex 3: Who is affected and how?
1. Practical implications of the initiative
Actor categories
The following table presents a summary description of the categories of actors
considered in the political ads initiative, including examples where relevant, a description
of their activities, and a sketch analysis of how they might be practically distinguished
for the purposes of defining tailored obligations under the options considered.
Category Example and comments
Very large online
platform (in short:
VLOPs)
Facebook, Twitter, Amazon, Google, etc. (includes some alternative
platforms such as Quora and Reddit). Defined in DSA (Article 25 -
>= 45 million monthly users).
From the perspective of the measures envisaged, these large (social)
media platforms act as publishers of political ads published through
their services (e.g. content sharing, search engine, online retail
services). They also provide distribution services for advertising
published by ad networks (e.g. display advertising and banner ads
incorporated into the online interfaces). They have come to play a
gatekeeper role over political campaigning online.
Political advertising on these platforms is targeted either through
services offered by these platforms directly or via an intermediary
(and on the basis of data they provide or via an intermediary), and it
is also subject to recommender algorithms.
They are signatories of the Code of Practice on disinformation, and
will be addressed in their advertising activity by the Digital Services
Act. VLOPS have various policies with respect to political ads
(based on various definitions) and some maintain ad repositories.
Other online platforms News websites, alternative media platforms, forums etc. Defined in
the DSA (Article 2 – hosting service which stores and disseminates
public information).
Perform the same roles as VLOPs from the perspective of the
measures envisaged, but to a smaller scale. Publish and host ads
directly to users, offer targeting and hosting ad network content.
Ad exchanges, ad
networks, ad platforms
Ad networks/exchanges/platforms (e.g. Adcash, Adform, AdTaily,
Criteo, Exoclick) fall under “intermediary services” within the DSA
(Article 2(f)). Act as intermediaries between a public facing service
which also hosts ads (such as a mobile app, webmail service, search
engine, website etc.) and advertisers. Often use central web servers
and offer targeting, tracking and varying degrees of control to
advertisers over where their ads will appear.
The transaction can be quite complex – supply side platforms
intermediate between a website offering advertising space for sale in
combination with a specific user (identified on the basis of an
aggregation of personal data obtained directly from the user’s
transactions with the site itself, and her behaviour as monitored
78
online via cookies, beacons, browser fingerprinting, etc. and by
other websites), and an ad exchange, which will offer the supply-
user package for sale to the highest bidder via a demand side
platform which intermediates on behalf of advertisers looking for
specific user-types with a specific budget.
Ad platforms are often used to generate revenue from leftover ad
space on websites which platforms have not sold to specific
campaigns. Ad platforms can then sell an advertiser specific access
to such space – usually for a higher price – or sell access to the
network as a whole.
While they fall within the overall scope of the DSA, as bare
“intermediaries” they have few obligations of relevance to political
ads (obligation to cooperate with national authorities and offer some
very limited reporting of interactions with national authorities).
Other online ad services Includes intermediary services which do not involve the hosting and
serving of ads – e.g. supply-side and demand-side platforms. Handle
personal data but do not host content. Also required to comply with
the GDPR.
Other ad services Includes services which are not specific to the online environment:
ad agencies, design agencies, campaign management, and
promotional, advertising and marketing consultancies. Are involved
in the value chain, and create, plan and finance political ads.
Offline ad publishers Broadcasters, newspapers and periodicals, billboards and other
physical media. Partly covered by the AVMSD. In the context of
political advertising, strictly regulated nationally.
Concretely, this means that:
Publishers of online political ads (platforms and in the case of banner ads, the relevant
agency)
Required to provide additional information to individuals in the ad itself (e.g. on political links)
and obtain additional information to support audit and oversight. Ex ante transparency for
publishers could be envisaged, partly to address the issue of banner ad providers, requiring
websites to include information about the advertising brokers they contract with, enabling users
to assure themselves that only standards-compliant brokers are used261
. Programmatic advertising
would be subject to limits on targeting and the conditions for its use.
Very large platforms
Specific reporting obligations regarding their actions in relation to political advertising and would
have to include specific additional information in the online repositories of political ads (specific
financial information). They would also need to include political ads and the activities within the
scope of this initiative in their systemic risk assessment to be conducted under the DSA, and
publish the parts thereof that relate to targeting and amplification. VLOPS would be subject to
the targeting and amplification measures.
Offline actors disseminating or broadcasting ads to individuals (not covered by the DSA)
261
What this means in practice is that when visiting a site, app, platform or service which uses banner ads, you would
be able to easily see (for instance in the browser address bar, as is the case now with certificates compliance) which
banner ad providers (ad brokers) are contracted to provider advertising on the site. Such providers could themselves be
required to provider transparency and certification of their compliance with relevant rules, such as the GDPR.
79
Transparency requirements in their communications to individuals (to make certain information
public in the ad itself) and to keep certain records to support audit and oversight.
Entities providing financing in the context of the political ads
Keep records and provide this information in the context of the due diligence requirements,
audits and to competent authorities.
Design and ad agencies (online and offline), ad-tech companies (ad brokers, data brokers
etc.), and campaign organisers
Keep records in the context of the due diligence requirements and to support reporting, audit and
oversight by competent authorities. Programmatic advertising would be subject to limits on
targeting and the conditions for its use.
SMEs
Particular attention will be paid not to overburden SMEs262
which are usually technological
service providers, engaged in the provision of ‘amplification and targeting services’ or ‘financial
support services’ connected to the publication of political ads. Such activities need to be taken
into account, proportionately, and this category of addressee cannot be immediately excluded.
EUPPs
They should be covered by specific binding obligations for political ads and regarding keeping
records. The information will be attached to the ads or accessible from their website and include
the following: name of the party, logo, disclosure of the amount of money being used and
information, where relevant, on the targeting techniques being used.
262
SMEs’ were at stake in the Cambridge Analytica case.
80
2. Summary of costs and benefits
I. Overview of Benefits (total for all provisions) – Preferred Option
Description Amount Comments
Direct benefits
Reduced legal fragmentation costs Removal of barriers and obstacles
Increased legal certainty Cost reductions of around 1 FTE per
economic actor per cross-border campaign.
Applies to agencies and ad
publishers when providing
political ads across borders or
in more than one Member State.
More transparency in political ads Increased accountability and improved
oversight. Reduced opportunities to mislead
citizens
Improved trust in political ads
More uniform and effective monitoring and
enforcement of regulation of political ads
Simplification of regulatory oversight
Reduced circumvention of rules and
reduced non-regulated political ads in
circulation
Reduced impact on fundamental rights and
democratic processes of the use of targeting in
political ads
Reduced opportunities to mislead citizens
Improved trust in political ads
Dissuades misuse of targeting and of
personal data in targeting
Increased transparency in the use of political
ads by national political parties
Political parties have greater certainty and
clarity about their use of political ads
Improved opportunities for multinational
campaigning on European issues
Reduction of incentives for restrictive
private sector policies
Better regulation of campaigning organised by
European political parties
Indirect benefits
Increased opportunities for cross-border
political ads services
Reduced opportunities for interference in
elections
Improved protection of democratic principles
and more resilient democratic processes
II. Overview of costs – Preferred option
Citizens/Consumers Businesses Administrations
One-off Recurrent One-off Recurrent One-off Recurrent
Common
framing of
political ads
Direct costs
Adaptation
of ad
purchasing
policies for
political
actors
Training and
process
adjustment to
adapt to
common
framing
Training
and capacity
building
Indirect costs
Passive
obligation to
Direct costs
Training and
process
81
retain
information
about
political ads
adjustment to
adapt to
common
framing
Indirect costs
Obligation to
provide
adequate
information
Direct costs
Data handling
and process
adaptation.
Costs may be
comparable to
costs currently
incurred by
companies that
voluntarily
disclose
information,
estimated at
around EUR
10,000 to
15,000 per
annum.
Variable costs
of data
acquisition and
publication.
Repository
adaptation costs
Indirect costs
Obligation to
cooperate
with
competent
authorities
Direct costs
Provision
against
information
requests, and
upstream where
not automated
Costs would
vary according
to the number
of requests –
potentially 0.5-
1 FTE per
political ad
campaign.
Indirect costs
Conditional
limits to
targeting
Direct costs
Training and
process
adaptation.
GDPR
certification
costs
Indirect costs
Powers for
national
authorities to
request
information
Direct costs
Indirect costs
Framework
to enable
exchange of
information
Direct costs
Developing
necessary APIs
and other
technical
solutions
82
Indirect costs
Further
support for
capacity
building
Direct costs
Indirect costs
Elaborated
rules for
EUPPS
Direct costs
Data
handling
and process
adaptation
Additional audit
requirements
estimated at
around EUR
75,000 to
150,000
annually
Training for
EP staff to
oversee
additional
audit
Indirect costs
Support for
repository of
information
about
political ads
for EUPPs
Direct costs
0.5 FTE per
party for ~6
months
campaign
period to make
disclosures
Staff
training
Disclosure
platform
design/proc
urement
Monitoring
compliance
transparency
and targeting
obligations
Indirect costs
Recommend
ations to
Member
States for
their national
political
parties
Direct costs
Indirect costs
83
Annex 4: Analytical methods
1. Analytical framework
The impact assessment is prepared on the basis of a supporting study, an open public
consultation and intensive direct stakeholder consultation and the relevant literature and
recent EU publications (reports, studies and policy documents). It includes a full analysis
of the status quo as a dynamic context, including:
 The relevant legal framework and anticipated legislative changes, at EU and
national level, including a qualitative description of gaps, overlaps and conflicts,
as well as common elements.
 A summary of the scope and context for the impact assessment is provided in the
annexes, including a market analysis drawn from the supporting study, use cases
to illustrate the various processes involved and to highlight where difficulties lie.
The objectives, options and assessment of their various impacts were prepared on this
basis. Quantitative data on the specific political ads markets investigated were
challenging to obtain, as were quantitative data on the businesses and business processes
affected.
2. Definition of political advertising and main addresses
For the purposes of the overall impact assessment, a broad, inclusive approach was taken
to political advertising (political ads throughout the text), which was taken to include the
various national definitions based on partisan content, campaign periods, affiliation with
political parties and actors, links to political funding, and to political themes. As such, it
was intended to include issues based advertising, while acknowledging that beyond
objective and nationally established criteria, the limits of concepts such as “issues based”
or “politically themed” advertising would necessarily be contingent, involve a degree of
subjectivity and judgement, and could overlap with advertising that also pursued
commercial or public informational aims. Specific questions in the open public
consultation and in the supporting study sought to obtain stakeholder input for the scope
of political advertising. Further input was obtained from the assessment of the national
legal and policy framework, which established common characteristics of political
advertising and related definitions (including parties and campaign periods), as well as
diverging and potentially conflicting terms.
A corresponding approach was also applied to establishing the scope of economic actors
potentially affected by relevant rules applied to political ads and the issues subsequently
identified specific to this sector. Online and offline actors were considered, and the
potential contribution to issues, as well as the extent that actors are currently addressed
by relevant rules, was extensively assessed in the various value chains identified. These
are described in greater detail in Annexes 2 and 5.
3. Assessment of fragmentation
On the basis of extensive consultation with the Member States, including the preparation
of a mapping of relevant rules and policies, as well as the research conducted for the
supporting study, the national frameworks applicable to political ads were described and
84
an analysis of the fragmentation in the internal market of rules applicable to the various
categories of economic actor identified which are potentially addressed by such rule
when offering services was prepared. National rules and policies are analysed to present
gaps, conflicts and measures in common from the perspective of rules which condition
the availability of political advertising, which determine its content (except regulation on
illegal content, which is out of scope of this initiative)
4. Estimates for costs for economic actors
The economic costs for the economic actors have been based on the consultation.
Specific figures for costs are included where possible, and are qualitatively estimated
where not.
Assumptions for estimations based on the DSA impact assessment SWD(2020) 348 final:
 Estimates are based on averages established based on data reported by companies
for the notice and action and transparency obligations in the German law over a
period of 6 months.
 As there are significant differences in the scale of notices received and resources
invested by different companies, estimates were corrected based on simulated
data from a model built by the JRC for a full content moderation process a
company could put in place.
 To estimate the duplication of costs across Member States, the indicators for the
legal distance were also used to correct coefficients for the duplication of costs in
scenarios of the evolving legal fragmentation. For the additional costs on very
large platforms, estimates are based on an average FTE costs of EUR 110.000,
benchmarks of risk assessments in the financial sector and estimated costs of
technical audits, reported data from stakeholders for maintenance of databases.
5. Comparison of options and proportionality
The tables in section 6 and 7 of the Impact Assessment should be read in vertical: ‘~’
indicates no change in performance compared to the baseline. ‘+’ pointing to a better
performance of the option than the baseline, and ‘++’ to the best performance among the
options; the ‘>’ symbol is used to indicate higher costs than the baseline, and ‘>>’ the
highest cost among the options.
Table 1 summarizes the impacts of the options with regard to the measures addressing
internal market issues and based on Article 114 TFEU. Table 2 summarizes the impacts
of the options with regard to the measures addressing European political parties and
based on Article 224 TFEU. The tables provide an overview of how the options compare.
The corresponding narrative sections provide explanations as to why which option is
considered better for each category.
85
Annex 5: Context, scope of the market, and other aspects
relevant to the problem definition
This Annex provides additional information on the context of the initiative, on the market
for political ads (size, scope, etc.), and develops further aspects related to the problems
identified with political advertising which could not be addressed at length in the Impact
Assessment (for instance because not directly related to the 114 legal basis).
1. Context
1.1 Political context
In the run up to the March 2019 European elections, the Parliament recommended that
transparency of political advertising be based on effective due diligence checks of the
identity of sponsors263
. In a resolution of October 2019264
the Parliament recognised the
risks of foreign interference in elections, including through advertising. The subsequently
formed Special Committee on Foreign Interference in all Democratic Processes in the
European Union, including Disinformation noted that political advertisements on the
internet are not subject to the same disclosure rules and restrictions as regards foreign
funding for those on television, radio and in print, and that this exposes democratic
processes to increased risk.265
In its draft report on its proposal to reform the 1976
Electoral Act266
the European Parliament's Committee on Constitutional Affairs (AFCO)
underlines the importance of ensuring a high standard of transparency in political
advertising. Responding to private sector policies that tended to divide the internal
market for political ads, the Presidents of the European political groups also wrote to
Vice President Jourová asking for the Commission to ensure pan-European political
communications.
Before the last European elections, the Council and the Member States267
underlined the
need to foster and facilitate the transparency of paid political advertisements and
communication (including on their advertising purpose, the methods by which they are
targeted to citizens, and their funding). In October 2019268
the Council recognised the
many challenges confronting democracies, and agreed to develop a common and
practical response including emphasis on promoting greater transparency of democratic
processes, particularly of the financing of political and issue-based campaigning, as well
263
See in particular points (p) and (aj) of European Parliament recommendation of 13 March 2019 to the Council and
the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy
concerning taking stock of the follow-up taken by the EEAS two years after the EP report on EU strategic
communication to counteract propaganda against it by third parties (2018/2115(INI))
https://www.europarl.europa.eu/doceo/document/TA-8-2019-0187_EN.html
264
https://www.europarl.europa.eu/doceo/document/TA-9-2019-0031_EN.html
265
Working Document on covert funding of political activities by foreign donors of 22 April 2021
https://www.europarl.europa.eu/doceo/document/INGE-DT-689654_EN.pdf.
266
https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2020/2220(INL)&l=en
267
Conclusions of the Council and of the Member States on securing free and fair European elections.
https://www.consilium.europa.eu/en/press/press-releases/2019/02/19/securing-free-and-fair-european-elections-
council-adopts-conclusions/
268
Council conclusions on Democracy of 14/10/2019 https://data.consilium.europa.eu/doc/document/ST-12836-2019-
INIT/en/pdf
86
as to ensure that the rules governing elections and democracy offline can be applied
effectively online. Finally, in February 2021, Ministers in the Council expressed
appreciation and overall support for the Commission’s work for the EDAP.
1.2 Commission policies
The Commission has engaged more and more with Member States in policymaking
linked to political ads, in particular to address the new challenges of the digital
transformation. This includes the proposed Digital Service Act, EU data protection
legislation269
, initiatives to support the efficient conduct of the European Parliamentary
elections270
, and the initiatives combating disinformation and other forms of information
manipulation and interference271
.
In light of the 2019 elections, the Commission adopted a package of measures to support
free and fair elections, with recommendations addressed to Member States and national
and European political parties, which included measures to address disinformation272
. As
part of the implementation of these recommendations, the Commission organised back
then three meetings of a specially created European Cooperation Network on Elections
(ECNE) to exchange good practice and information among Member States’ competent
authorities.
The Electoral Package recommendation
The Recommendation recognised that election periods have proven to be particularly
strategic and sensitive for online circumvention of conventional (“off-line”) safeguards
such as the rules applicable to political communication during election periods,
transparency of and limits to electoral spending, silence periods and equal treatment of
candidates, as well as for the prevention of cyber-enabled attacks. It noted that in light of
the targeting of Union citizens by political advertisements which were not transparent
about their source and purpose or were represented as something else, such as new
editorial or social media posts, the transparency of political advertisements should be
enhanced. To that end, Member States were asked to promote transparency of political
advertising in line with their applicable rules. This was to include the active disclosure to
citizens of the Union of information on:
 the political party, political campaign or political support group behind paid online
political advertisements and communications;
 on campaign expenditure for online activities, including paid online political
advertisements and communications, and
269
Including the GDPR and the e-Privacy Directive.
270
2013/142/EU: Commission Recommendation of 12 March 2013 on enhancing the democratic and efficient conduct
of the elections to the European Parliament; Commission Recommendation (EU) 2018/234 of 14 February 2018 on
enhancing the European nature and efficient conduct of the 2019 elections to the European Parliament
271
Guided by the Action Plan against disinformation (https://eeas.europa.eu/headquarters/headquarters-
homepage_en/54866/Action%20Plan%20against%20Disinformation) reported on in the Commission and High
Representative’s joint Communication, “tackling COVID disinformation.”
272
https://ec.europa.eu/info/sites/info/files/soteu2018-cybersecurity-elections-recommendation-5949_en.pdf; Reported
in https://ec.europa.eu/info/files/com_2020_252_en.pdf_en
87
 any targeting criteria used in the dissemination of such advertisements and
communications273
.
Such rules were to be backed by sanctions. National and European political parties were
asked to conduct their campaign activities transparently and to support the
implementation of the recommendations on Member States’ authorities through the
provision of pro-active transparency on the parties websites and in their advertising
activity.
The implementation of these recommendations was described in the Commission report
on the 2019 elections274
. While the recommendations on establishing national and
European coordination networks could be implemented promptly and showed good
results, there were significant challenges for Member States to take action on the
transparency of political advertising.
It emerged from the mapping of relevant national regulations and processes which was
facilitated by the ECNE (elements of which are presented and summarized in Annex 8)
and from the subsequent discussions in the network itself275
, that there are very few
examples of jurisdictions where transparency of political advertising is required, fewer
still where such a requirement would apply online, and even where this is to be provided,
there is no possibility to provide for enforceable transparency with a cross-border
dimension276
.
The impact assessment accompanying the DSA proposal characterises online advertising
services as an area of particular evolution, and which, as digital services often delivered
through online platforms, are inherently cross-border and associated with a number of
new risks and challenges. Its assessment of the baseline scenario noted that in “the
absence of further EU legislation and subject to enforcement of the current legal
framework, legal fragmentation in areas not yet subject to sector specific legislation is
likely to increase. Already today, a number of Member States, such as Germany, Austria,
Denmark or France, have adopted or are in the process of adopting new laws to regulate
digital services. A patchwork of national measures would not effectively protect citizens,
given the cross-border and international dimension of the issues”.277
To the extent that the present initiative addresses online political advertising, it largely
comprises a specific subset of the elements addressed by the DSA proposal, for which
additional and specific problems and solutions are identified here, alongside data and
elements addressing certain further elements regarding offline political advertising,
certain additional related services, and the part played by EUPPs and European political
foundations. All these elements are described in the study and data prepared in support of
273
At the time that the recommendations were prepared, these criteria represented a necessary first step to ensure that
citizens could be sufficiently informed about the political adverts they encountered. The current initiative builds and
elaborates on this initial position.
274
In particular through the implementation of the Commission’s September 2018 electoral package
(https://ec.europa.eu/commission/presscorner/detail/en/IP_18_5681) which is described in the Commission’s report on
the 2019 elections https://ec.europa.eu/info/sites/info/files/com_2020_252_en_0.pdf and
https://ec.europa.eu/info/sites/info/files/swd_2020_113_en.pdf
275
https://ec.europa.eu/info/policies/justice-and-fundamental-rights/eu-citizenship/electoral-rights/european-
cooperation-network-elections_en
276
Outsides the specific requirements for transparency to be provided to data subjects by data controllers
foreseen by the GDPR.
277
https://ec.europa.eu/newsroom/dae/document.cfm?doc_id=72160
88
this impact assessment, which also presents how the political advertising market, the
relevant current regulation at national and EU level function and are likely to evolve. The
backward-looking aspects of the public consultation and the findings of the report on the
2019 European elections complement the conclusions of the underlying study. That
report concludes that the political advertising market in the EU is growing and becoming
ever more complex, online and cross-border, and its impact on electoral outcomes and
the democratic debate is strengthening the trends towards polarisation, as well as
increased susceptibility to interference. At the same time, the regulatory context remains
fragmented and will become increasingly so, despite the impact of the DSA on the online
advertising market as a whole, as Member States continue in the efforts to control these
cross-border activities nationally.
1.2. The specificities of the political advertising market
Transparency is particularly needed for political ads. It is a principle of a democratic
process, as noted by relevant international standards setting body. The EDAP explains
that “Citizens, civil society and responsible authorities must be able to see clearly the
source and purpose of such advertising. In the online environment, it is often difficult to
recognise paid-for political material and distinguish it from other political content,278
not
least because it can often appear as ‘organic’ content shared or created by other users.
This creates legal uncertainties for service providers and other operators, in particular
online intermediaries, political consultancies and related firms, but also for political
parties, campaign organisations, candidates and for the public more widely, and affects
accountability and oversight.”
1.3. Different definitions and national rules
Partisan or political advertising is defined in different ways in the Member States279
. In
some Member States, political advertising may only be placed by certain actors (e.g.
political parties and candidates) and is strictly regulated, for instance as regards the
period during which they may be disseminated. Other advertising with more general
political messages, aims or effects (i.e. regarding more general political issues such as the
environment or migration – issues ads) is also placed, including by other actors (such as
interest groups, companies, civil society, citizens but also political parties) and during
other periods than in the context of an election. Some Member States ban such
advertising, or seek to impose limits to it through media regulation, other Member States
do not, or rely on controls on political parties and in particular their fundraising and
spending to control such activities.
The lack of a single harmonised definition at EU-level for ‘political advertising’ is
frequently highlighted in the literature and in the public consultation280
. The differing
278
In contrast, a 2021 Eurobarometer found that nearly four in ten Europeans using the Internet (37%) have been
exposed to content which they could not easily determine whether it was a political advertisement or not.
https://fronteirasxxi.pt/wp-content/uploads/2021/06/ebs_507_en.pdf
279
See Annex 8 on legal mapping
280
See for instance, ERGA. 2019. Report of the activities carried out to assist the European Commission in the
intermediate monitoring of the Code of practice on disinformation (See: Annex I, Ref. No. 04); European Commission.
2020. Assessment of the Code of Practice on Disinformation – Achievements and areas for further improvement (See:
Annex I, Ref. No. 109); European Economic and Social Committee. 2020. The effects of campaigns on participation in
89
approaches to the concept in Member States emerges from different national political
traditions. Concretely, what is a political advert in one Member State might not be in
another, and may be regulated very differently. Complying with different rules across
Member States when providing services relevant to political advertising (e.g. support
fundraising for a campaign, provide design, strategy and copy for adverts, and organise
their dissemination) can be legally complex. It can discourage smaller enterprises. It has
resulted in larger economic actors seeking to limit their exposure to compliance risk by
limiting access to services to a national territory, regardless of applicable rules281
.
Regulatory gaps and conflicts, and in particular decreased transparency of political
advertising, is regarded as creating risks for fair and free elections. In particular, in the
online environment it may be difficult to distinguish between paid-for political ads from
other type of political ads or organic content created by users of platforms, which affects
a number of actors in the electoral process.282
1.4. Political Ads market and fast evolving landscape
The market for political advertising, understood broadly, has developed greatly in recent
years, globally, and in the EU. The amounts being spent have steadily risen283
. The
digital transformation has had a particularly significant effect on the number of actors
and services in this market, while previously political advertising campaigns in the EU
would have been comparatively modest and would have centred on a few traditional
forms and during relatively limited periods before elections. These included print
campaign adverts carried in newspapers and periodicals, party political broadcasts on
television and radio (often strictly time-limited), and leaflets, billboards and direct
mailings, all of which would have been clearly identifiable as political adverts. The
publishers and the parties behind them were also identifiable, and there were a limited
number of usually domestic advertising and campaign agencies providing the copy,
design, distribution and sometimes some ‘marketing’ advice.
More recent elections have provided examples of how this market has changed, and how
new actors have entered to enable new kinds of advertising and related services to
support political campaigns and the communication of political messages. Besides
publishers and advertising agencies, political advertising involves a large number of
services, in addition to those already mentioned for conventional political advertising,
including:
 in financing: microfunding, crowdfunding and other online donation platforms,
banking finance (loans etc.), ad revenue generated from party and campaign websites;
 in preparation: copywriters, design agencies, message design and marketing
agencies, focus group and other research companies, political consultancies and
political analysts (including those using personal data harvested from online activity);
political decision-making (See: Annex I, Ref. No. 116); Hegelich, Serrano. 2019. Microtargeting in Germany for the
2019 European Elections (See: Annex I, Ref. No. 107) and Who Targets Me. 2020. How to take a “gold standard”
approach to political transparency and policy. (See Annex I, Ref. No. 184).
281
Study on the impact of new technologies on free and fair elections (March 2021 – not yet published).
282
See European Democracy Action Plan, page 4 (See: Annex I, Ref. No. 181).
283
See the data on spending in the underlying study.
90
 in placement: online platforms, websites (including news sites and political party
sites), forums and blogs, video sharing sites, influencers;
 in dissemination: ad platforms/networks/brokers (banner ad publishers), targeting
and media consultancies, data brokers;
2. Scope
2.1. Estimate on the size of the Political Ads market284
Estimates of the size of the EU online political advertising market ranged from EUR 43
million to almost EUR 100 million in 2019. Google’s transparency report, which
records data from 20 March 2019 to 20 April 2021, reported that EUR 16,029,000 were
spent in political advertising in the EU. Even though the EU online political advertising
market has been steadily growing in the past years, it continues to be relatively small
when compared with the market in the United States or Canada. The total amount spent
on Google political advertising in these two years in the EU is on par with the amount
spent in the state of Ohio for only a slightly longer period (30 May 2018 – 20 April
2021). The total spent on political advertising in the USA in the period 30 May 2018-20
April 2021 reached EUR 622 million (USD 751 million). Note that this spending
coincides with the 2020 US Presidential election.
The European Parliament spent EUR 3.3 million in Facebook ads, whereas the European
Commission spent EUR 105,000 in the same period (beginning of March to the end of
May 2019). The Parliament spending was fairly uneven across the EU Member States.
Out of the 28 Member States back then, 13 represented more than 20% of the total
invested in political ads on Facebook. It is worth noting that the European Parliament did
not post any advert in Latvia, according to Google Transparency.
Pan-European parties spent EUR 449,000 in total on Facebook advertising; a figure close
to the budget of some national parties. The European Greens invested EUR 272,440 (plus
EUR 20,951 by the European Free Alliance and EUR 2,065 spent on the Facebook page
of the Europeans), totalling EUR 295,456. Volt and DiEM25 also spent a significant
amount. ALDE expenditure was almost inexistent.
Drawing on examples from recent national elections in the US, UK, and the Netherlands,
the local elections in France as well as the European parliamentary elections in 2019, we
can see that the overall spending on political advertising has increased, and moved
online285
.
In the 2019 European Parliament elections, the expenditure in online political advertising
reached EUR 23 million286
(figures vary according to sources). Most of the budget was
spent in Facebook ads, with a significant cross border component. The figures are only
expected to increase over time.
Even as estimates put the size of the online political advertising market in Europe up to
over EUR 100 million287
, an ever-greater share of political advertising is shifting away
284
See annex 6 of the underlying study supporting this impact assessment for more complete data and figures.
285
See data from underlying study.
286
https://adtransparency.mozilla.org/eu/2019-05-17/eu/
287
According to analysis by the political tech firm, Worldacquire, political parties and organisations across Europe
spent at least €100 million to advertise on Facebook and Google for their election campaigns in 2019
91
from traditional media and into the online environment. This is due to factors including
the relatively low cost of advertising online, the ease with which online advertisements
can be produced and disseminated, and the anonymity of the online environment, in
comparison to advertising through traditional media. Stakeholders interviewed for this
study suggest that the shift towards online advertising has accelerated as a result of the
COVID-19 pandemic.
In terms of the problem’s temporal scope, the shift to online means that political
advertising occurs throughout the entire legislative cycle and is not restricted to
election campaigns288
. This presents new challenges for policymakers and regulators
compared to the traditional journalistic media space. The period during which political
adverts are circulated is long, and has likely increased, as can be observed from the
periods during which unique ads appeared on Facebook platforms promoting messages
from political parties contesting the recent (March 2021) national elections in the
Netherlands in the chart below.
Figure 1: Number of ads on Facebook run by Dutch political parties before the General elections (15-17
March 2021)289
https://worldacquire.com/2019/12/30/which-political-parties-in-europe-spent-the-most-on-online-political-advertising-
in-2019/
288
How Difficulties in Delineating Paid Political Communication Can Be Addressed? Available at:
https://www.stiftung-nv.de/sites/default/files/snv_definingpoliticalads.pdf
289
Source: https://dashboard.politieke-advertenties.nl/dashboard/en/index.html (accessed 30 March 2021).
92
As the variety of services available to political advertising have increased, especially in
the data-driven targeting and message-shaping domain, so have the amounts spent on
them. The recent US elections provide an indication of trends in this respect, and while
the particular financing arrangements available in US presidential elections enable vastly
larger sums to be spent in political advertising and related services there, this trend, and
the technologies applied, are observed in the EU too.
2.2. Spending on the previous elections for the European Parliament (2019)
Germany (EUR 5.5 million) and Spain (EUR 4.4. million) were the countries that spent
the most in online political advertising during 2019290
. Ten EU countries (AT, BE, DK,
FR, DE, EL, IT, NL, ES and SE) saw spending on political ads in the excess of EUR 1
million. Finland almost reaches this mark too. Conversely, six countries appear to have a
smaller market during this period of under EUR 150,000 (BG, CY, EE, LV, LT, and SI).
Considering only Facebook (1 March to 26 May 2019), Germany spent EUR 3.46
million and Spain EUR 2.72 million. Covering a longer period of time, Google
Transparency shows that the country with the most spending was Romania (EUR 2.7
million), followed by Germany (EUR1.5 million) and the Netherlands (EUR 1.3 million).
This is likely to reflect the electoral cycle, since Romania, the Netherlands and Germany
all oversaw elections during this period, in addition to the 2019 European elections
(presidential and legislative elections, general election in 2021, and elections in eight out
of the 16 federated states (Länder) respectively).
Except for the European Parliament, Unidas Podemos (ES), Vlaams Belang (BE) and
Ciudadanos (ES) ranked first in terms of total spending in Facebook. All three parties are
rather new, which may support the literature arguing for the potential of targeted online
advertising for disruptive political parties to reach audiences.
A number of well-known NGOs such as Greenpeace or Save the Children also appear
among the top advertisers. This is relevant to the issue-based advertising trends discussed
as part of political advertising.
2.3. Cross-border aspect of the Political Ads market
Based on the analysis of the information available in Google Transparency the total
amount of cross border online political advertising reached EUR 6,193,950.00
approximately. Most of the cross-border flows of money happened between
neighbouring countries. One of two exceptions is Slovakia and the United Kingdom. In
total volume of bilateral expenditure, the Netherlands tops the list with EUR 462,000
spent in Belgium, Germany, and Ireland. Slovakia follows with EUR 259,850 spread in
Czechia, Greece, Hungary and Poland. Sweden ranks third with EUR 239,400, all spent
in Denmark.
The case of Romania is relevant. National advertisers spent € 164,100 across nine
Member States, namely: Bulgaria, Germany, Spain, United Kingdom, Greece, Croatia,
Hungary, Italy, and the Netherlands. The receipt countries are a mix of neighbours and
Member States where there is a big community of nationals from Romania. Reaching
potential voters living abroad seems to be one of the main drivers explaining these
290
Also the UK spent EUR 11.5 million (of which EUR 3.31 million on Facebook), which participated in the European
Parliamentary elections
93
expenses. In this respect, Romania and Slovakia were the two Member States with the
most companies among political advertisers. However, since the Slovakian diaspora is
not as prominent as the Romanian one, the price of Facebook ads or even the service
providers can explain this.
Although the total expenditure is not as high, most likely due to the lower costs of
advertising, it is worth mentioning the flows registered in the Baltic countries. Latvia
posted advertising in Estonia (EUR 1,250) and Lithuania (EUR 13,750), but none of
these seem to have spent anything in political advertising in Latvia nor between
themselves. The Visegrad Group (Poland, Czechia, Hungary and Slovakia) also
registered a significant amount of cross border money flows.
Luxembourg seems to be the only Member State where actors did not engage in
cross border activity in any direction. Of similar interest is the fact that no adverts
were posted in Latvia, Romania, Sweden, Slovenia and Slovakia from other Member
States.
As regards as political candidates, it is relevant to mention the European wide coverage
of the Polish political campaign. The current president of Poland is Andrzeja Duda
(Komitet Wyborczy Kandydata na Prezydenta Rzeczypospolitej Polskiej Andrzeja
Dudy), who spent EUR 212,100 in 10,918 ads across 23 Member States, namely: AT,
BE, BG, CZ, DE, DK, ES, FI, FR, GB, GR, HR, HU, IE, IT, LT, LU, NL, PL, PT, RO,
SE, SK. No ads were published in CY, EE, LV, and SI. The coalition in the opposition
(Koalicyjny Komitet Wyborczy Koalicja Obywatelska PO. N iPL Zieloni) spent
approximately half of the money EUR 109,750 in double of the ads, 22,787 in 19
Member States: AT, BE, CY, CZ, DE, DK, ES, FR, GB, GR, HR, IE, IT, NL, PL, PT,
RO, SE, SK.
2.4. Cross-border spending on political ads
The figure below illustrates the expenditure on political advertising within the Member
States and political advertising with a cross-border component from 19 March 2019 to 19
April 2021291
. As reported earlier, the total amount of cross-border online political
advertising reached EUR 6,193,950292
.
291
The analysis is based on the data extracted from Google. The data can be divided into political ads posted in a
Member State (e.g., AT), and political ads that seem to be posted from a different Member State (e.g., AT, DE). In
many cases the political ad seems to be simultaneously available in various Member States (e.g., AT, HU, SK) and its
origin is difficult to track.
292
This figure excludes pan-European political parties, the European Parliament, and other sources in Member States
which could not be clearly identified.
94
Figure 2: Cross-border political advertising293
Source: underlying study’s author’s elaboration based on Google Transparency
The cross-border activity is conducted by political parties, political candidates, civil
society organisations and companies. Among the latter, there are communication
agencies, advertising and marketing agencies, consultancies and other businesses. Cross-
border advertising is defined as a service in which the actor on behalf of which the
service is provided is extraterritorial to the jurisdiction where the advert is posted.
Table 3 below lists the most prominent bilateral cross-border activity in terms of
expenditure.
Table 3: Bilateral cross-border expenditure in the 2019 EP elections
Direction of the expenditure Total Direction of the expenditure Total
Germany to Austria € 192,800 Ireland to United Kingdom € 145,600
The Netherlands to Belgium € 348,400 Slovenia to Croatia € 130,300
Poland to Germany € 135,800 The Netherlands to Ireland € 112,350
Sweden to Denmark € 239,400 Romania to Bulgaria € 50,850
Source: underlying study’s author’s elaboration based on Transparency Report Google
As it can be observed, most of the cross-border flows of money occur between
neighbouring countries (with the exception of the Netherlands and Ireland). In total
volume of bilateral expenditure, the Netherlands tops the list with EUR 462,000 spent in
Belgium and Ireland. Slovakia follows with EUR 259,850 spent in Czechia, Greece,
Hungary and Poland. Sweden ranks third with EUR 239,400, all spent in Denmark.
293
NB: “MS” represents the expenditure within the Member State, while “other MS” indicates the expenditure coming
from other Member States.
95
The case study on the 2020 Presidential Election in Poland shows that cross-border
posting of online political advertisements is not a phenomenon limited to elections to
European Parliament, but that it also occurs during national electoral processes. Political
parties and candidates can seek the vote of nationals residing in different Member States
targeting online political advertisements at them, particularly so in the countries where
large diaspora communities reside. The case studies on the Constitutional Referendum in
Ireland and the Spanish Legislative elections (see underlying study) also show how the
funding of online electoral campaigns and the use of dissemination techniques had a
cross-border dimension.
The fact that cross-border adverting has been identified (and to an extent quantified) in
26 Member States, that it is present in national as well as European elections, and that
online political advertising in general is continuing to replace its offline equivalent,
indicates that the phenomenon will continue to develop. Further, longitudinal data will
need to be analysed to understand the extent to which cross-border online political
advertising will continue to grow, however as presented in the next section focusing on
the actors and processes involved in online political advertising, the complexity of this
phenomenon is also growing, indicating a quickly developing and innovative market.
2.5. Profile of service providers
Having a closer look into service providers, as disclosed by Google’s Transparency
Report, there were companies with a widespread activity across the EU Member
States. Magnet Media, a media company with offices in Estonia and Latvia, spent EUR
20,750 in 946 political ads in AT, BE, CZ, DE, ES, EU, FI, FR, HU, IE, IT, PL, RO, and
SK. None of the ads seems to have been posted in Estonia. The company has 8
employees and works in traditional and online advertising. mmb media Agentur hr, a
marketing & advertising Croatian company that belongs to a Swiss conglomerate, spent
EUR 22,250 in 2,781 ads in AT, BE, CZ, DE, ES, EU, FR, GB, HR, HU, IT, NL, PL,
RO, SE, SI, SK. It has seven employees. Amerisoft SRL, a Romanian digital marketing
and publishing company, spent EUR 147,000 in 6,719 ads in AT, BE, BG, DE, ES, EU,
FR, GB, HU, IT, LT, NL, PL, PT, and RO. Information about the number of employees
is unavailable. The Romanian political party Partidul Mişcarea Populară was among its
clients. Another Romanian company, Atelierul de Internet SRL, spent EUR 603,750 on
2,497 ads posted in AT, BE, DE, ES, EU, FR, GB, HU, IE, IT, NL, RO. It employed
seven people in 2019. The correlation among its turnover and the 2019 elections is
depicted in the Figure below.
Although difficult to accurately estimate, the size of the cross-border online political
advertising market is rather significant. In addition to European elections, the free
movement of European citizens, especially in those Member States with an important
diaspora, also constitute an important part of the business. National elections have
transcended borders. As shown above, some of the companies involved in the
provision of online advertising services are micro-enterprises (with less than 10
employees).
Figure 4: Processes and actors in traditional political advertising
96
Traditional political advertising is a relatively simply transaction between a political
actor (party, foundation, candidate or campaign organisation), and an ad publisher, either
print, broadcast (radio and television) or other physical media (billboards, posters,
leaflets). It can involve an intermediary service (advertising agency, consultancy,
marketing and branding advice) that can also provide services not related to
advertisements. It is typically strictly regulated in the Member States (see below). There
is a relatively simple money flow: the audience funds political parties (through
contributions and donations), political parties hire different kinds of media to spread their
messages to the audience. Political parties may hire intermediary services to assist them
with their political campaign. Data is not gathered in a structured way and the kind of
media used only allows for general targeting. It should be noted that there is not a
significant difference between traditional political ads and traditional commercial
advertisement as the money flow is the same.
Figure 5: Processes and actors in modern political advertising
Modern political advertising can involve a range of other actors and include a number of
services. Other than the traditional intermediary services (advertising agency,
consultancy, marketing and branding advice) some new services, such as data analysis
firms, have been used. With online media, it has become possible to gather structured
data/information on the audience which enables political parties, non-party organisations
Political party
Aim: get the largest share
of votes
Role: Provide overall
guidance and line to follow
Political consultancy /
Communication /
advertising agency
Aim: develop overall
strategy for campaign
Role: develop strategy in
coordination with political
party
Funders Audience
N
o
n
-
a
d
v
e
r
t
c
o
m
m
u
n
i
c
a
t
i
o
n
Political
advertisement
Meetings, interviews,
events
Broadcast media
Print media
Other
General
targeting
Message
General
targeting
Money
flow Money
flow
Money flow
97
and (Political consultancy / Communication and Advertising) agencies to tailor their
messages to specific audiences. This process adds a layer of complexity as besides the
money flow there is now also data flowing from the audience to data analysis firms
(through online media) which is then made available to political actors.
Depending on the online media used, the process is slightly different. The tables below
provide a simplified overview of the actors involved and the flows of data and money in
the case of the provision of ad banners, ad videos, and sponsored posts on social media
respectively. It also should be noted that both the data and money flows are similar in
political and commercial advertising.
Figure 6: Processes and actors in the market of ad banners
When a Political Party (or other Political actor) wants to advertise its message on a
website (ad banners), there is usually no direct contact between advertiser and website.
Advertisers use demand-side platforms to store their adverts and websites use supply-side
platforms that help them to manage and sell their inventory. Ad Exchanges acts as an
online marketplace that allows advertisers and publisher to buy and sell online inventory,
auctioning impressions to the highest bidder. On top of this (mediated) monetary
transaction, there is also a data flow from the websites that gather and sell data towards
data analysis firms, which, after processing the data, can sell it to other actors such as
political communication agencies.
Figure 7: Processes and actors in the market of ad videos
98
Figure 8: Processes and actors in the market of social media sponsored posts
As can be seen from figures 4 and 5, the processes and actors in the market of ad videos
and social media sponsored posts are similar. Political actors (either directly or through
an intermediary service provider like a political communication agency) spend money on
online platforms in order to get their message advertised. The main difference between
this process and the process with traditional advertising is the ability of platforms to
collect personal information on the audience, which enables the creation of targeted ads.
2.6. EUPPs’ spending on advertising over time
The European Parliament publishes annual financial statements provided by all
EUPPs.294
Each annual financial reports covers one year,295
from 1 January to 31
December (except for the last two EP election years, where there is a statement per
semester). The reports list each political group’s expenditure on publications and
advertising, in which EUPPs distinguish between 5 categories: Posters, booklets,
publications; Advertising inserts and audiovisual advertising; Advertising material,
novelty items, telecommunications advertising; internet sites and cyber advertising; visits
to institutions, information stands. Based on these reports, the following graphs visualize
the political groups’ general revenue and their spending on these different categories of
294
https://www.europarl.europa.eu/groups/accounts_en.htm
295
With the exception of 2014 and 2019, where biannual reports were submitted.
99
advertisement. More detailed information is not available, and the proportion of
informational and political ads is not known.
Figure 9: EUPP’s revenue between 2010 and 2019
100
Figure 10: Absolute Spending by EUPP on Advertisement
Figure 11: Percentage of Revenue Spent on Advertising by EUPP
The political groups generally spent a larger share of their revenue on advertisement in
recent years, with a peak in 2018. Spending plummets significantly in 2019 and,
according to stakeholder consultations, the reason for this is Facebook’s 2019 rule that
limited the placement of cross-border advertisements. Parties had allotted significant
101
amounts for their online campaigns on Facebook for the 2019 EP elections, which they
were not able to spend differently, leading to lower overall spending.
Figure 12: EUPP spending on posters, booklets, publications
Figure 13: EUPP spending on advertising material, novelty items, telecommunications advertising
102
Figure 14: EUPP spending on advertising material, novelty items, telecommunications advertising
Figure 15: EUPP spending on internet sites and cyber advertising
103
Figure 16: Party spending on visits to institutions, information stands
2. Other aspects relevant to the problem definition
The problem definition section of the impact assessment addresses a number of issues
related to political ads from an internal market perspective (as well as issues related to
EUPPs). Other issues, less directly related to article 114 TFEU, are briefly mentioned
because they are relevant – in particular for the policy options on targeting and for the
section assessing the impacts of the policy options. These issues are examined in greater
detail below. The numbering is kept for consistency.
3.1 Problems for democratic processes linked to internal market issues (Problem 2)
The fragmentation and gaps in the regulation of political ads also result in poor
regulatory outcomes and undermine democratic processes and trust among voters.
As described in Section 2.2.1 of the impact assessment, in the Member States where
political ads are permitted, specific provisions condition the availability of political ads
(regarding medium, period, actors etc.) and their content (transparency and other
rules)296
. These rules are specific to each Member State and reflect their respective
democratic traditions297
. They tend to share certain objectives, including that:
 a plurality of political actors have access to the means to communicate their
message to voters;
 political actors campaign in the open and can be challenged on the claims they
make;
296
See Annex 8 for a presentation of the availability and content of relevant national legislation in this area.
297
In particular, the balance established between national institutions, political actors, citizens as voters, and other
actors contributing to the democratic debate and oversight, such as journalists and civil society more broadly.
0
200.000
400.000
600.000
800.000
1.000.000
1.200.000
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019
EUPP spending on visits to institutions, information stands
EPP S&D Renew Verts/ALE GUE/NGL
ECR ALDE EFDD Total
104
 resources are used transparently (and usually that there is some balance in the
access that political actors have to resources);
 citizens are provided with the information they require to evaluate the political
messages that they receive and make their minds up freely; and
 foreign actors and powerful commercial interests are not able to control the
political debate.
Beyond the EU instruments relevant to the regulation of political ads (see section 2.1 in
the impact assessment, and Annex 9), the Commission has supported soft-law measures.
As part of the Commission’s 2018 electoral package, the Commission recommended that
Member States and political parties take measures to strengthen the transparency of paid
political advertising, to ensure that parties and economic actors took the necessary steps
to ensure that individuals could recognise a political ad and know the identity of its
sponsor, the amounts paid for it and the use of targeting, where relevant. The Code of
Practice on disinformation included commitments to ensure that the political advertising
on their services was clearly labelled as such, and that viewers should be able to
understand how it was targeted to them.
The 2020 Commission post-elections report shows that the implementation of the
recommendations encountered significant challenges, and while effective measures were
taken by Member States to establish elections networks to improve coordination on these
topics, substantive changes to relevant rules and procedures were not possible298
.
Moreover, the Commission’s assessment of the first year of operation of the Code of
Practice on Disinformation299
showed that, although the Code produced positive results,
there were persisting insufficiencies in the signatories’ policies and actions on political
ads transparency. These include inter alia the completeness of political ads repositories,
the limited functionalities of application programming interfaces300
for the repositories,
and the absence of uniform registration and authorisation procedures. The Guidance
provided by the Commission on the update of the Code of Practice will help its
signatories to address these weaknesses and foster industry-led solutions, but the
assessment also noted that an inherent weakness of the Code was its self-regulatory
nature.
By providing for oversight and enforcement mechanisms, the DSA will provide the Code
with a regulatory backstop. It will also introduce a number of relevant obligations for
online platforms that publish ads on their interfaces, as well as due diligence obligations
for very large online platforms301
. While these initiatives will contribute to further
accountability in the online ads environment, and will reinforce the ability of authorities
to supervise political ads, a number of gaps will remain with respect to political ads. The
scope of the DSA is wide, including but not limited to political ads. For this reason, it
does not include in the hard-law requirements disclosure of ad spend, one of the metrics
298
The implementation of these recommendations was described in the Commission report on the 2019 elections
https://ec.europa.eu/info/sites/info/files/com_2020_252_en_0.pdf and
https://ec.europa.eu/info/sites/info/files/swd_2020_113_en.pdf
299
https://ec.europa.eu/digital-single-market/en/news/assessment-code-practice-disinformation-achievements-and-
areas-further-improvement
300
APIs, a software interface which allows external actors (limited) access to a platform’s services with automated
requests.
301
See Annex 9 and notably the table “Detail of envisaged obligations introduced under solutions 1 and 2, alongside
those anticipated for the DSA (baseline)”
105
necessary for political accountability. As regards ad transparency measures, the scope of
the DSA is focused on platforms that display ads on their interfaces, but does not cover
the full range of political ads - that can be encountered online - to be addressed, including
when they are placed on third-party websites302
. Not all actors, and especially not all
offline actors involved in political ads are covered by these instruments, but this is out of
scope of the problems addressed in the DSA.
Current regulation and soft measures have not achieved their objectives in the context of
political ads, especially across borders. This can be observed in a number of areas and
has several drivers, discussed below.
3.2. Negative impacts of current framework on regulatory outcomes across borders
(Problem 2.1)
Non-recognisability of political advertising by individuals
Offline political ads are usually labelled and some transparency information is provided
in most Member States. Online, this is typically only done by certain platforms, usually
voluntarily and inconsistently. The DSA will introduce labelling and certain transparency
obligations for all ads in its scope, but, as explained here-above, the transparency
measures do not cover all online ads and no offline ads, neither do they cover all the data
necessary. The open public consultation303
indicated that respondents across the EU
encounter political advertising where they are unable to identify key elements including
the entities sponsoring the ad, the amount spent on placing the ad, and the use of
targeting. Online, nearly four in ten Europeans have encountered content which they
could not clearly identify as political ads304
. They can confuse political ads with
journalistic content shared or created by others online305
. Although of critical importance,
labelling as such is not always sufficient on its own. In a recent German study306
, almost
60% of those interviewed thought that advertorials307
were genuine news content, despite
labels. Other complementary measures on transparency at various levels are necessary.
302
See in particular Annex 6 for a full description of the various services involved in political advertising. The DSA
defines ads as ‘displayed by an online platform on its online interface against remuneration specifically for promoting
that information’ where an online platform is a ‘hosting service which, at the request of a recipient of the service, stores
and disseminates to the public information’, ‘online interface’ means any software, including a website or a part
thereof, and applications, including mobile applications, and a ‘hosting’ service consists of the storage of information
provided by, and at the request of, a recipient of the service. In contrast, in simple terms, adtech advertising is where
the adtech service provider acts as an intermediary, arranging for the display of an advertiser’s ads on another
company’s website or app (e.g. a news media service), and involving a number of ancillary services which may be
provided by the adtech company or another service provider, such as the actual hosting of the ad, conducting a real-
time bidding process to establish which ad will be served to each website user, providing the data analysis used to base
the bidding and targeting process etc. These are not ads under the DSA.
303
European Commission, Political Advertising – Increasing Transparency. https://ec.europa.eu/info/law/better-
regulation/have-your-say/initiatives/12826-Political-advertising-improving-transparency
304
Special Eurobarometer 507 “Democracy in the EU”, fieldwork October-November 2020, publication March 2021
305
For an account of the impact of labelling, see for instance: “When politicians go native: The consequences of
political native advertising for citizens’ trust in news” by Magnus Hoem Iversen and Erik Knudsen (University of
Bergen, Norway) published in “Journalism”, a Sage journal, in 2019, Vol. 20(7) 961–978.
306
Stiftung Neue Verantwortung, „Quelle: Internet?“, March 2021: https://www.stiftung-
nv.de/sites/default/files/studie_quelleinternet.pdf
307
An advertisement written in the form of an objective editorial, presented in a printed publication, and usually
designed to look like a legitimate and independent news article.
106
Lacking transparency presents several interconnected problems for individuals exposed
to political advertising308
. Citizens find it difficult to distinguish between information on
political topics and political advertising309
. This can undermine their assessment and even
leaves them susceptible to manipulation. In particular, the political nature of online
political ads can easily be concealed from the viewer, and their content concealed from
wider scrutiny. The online space also provides opportunities for non-transparent means of
amplification, such as networks of (semi-)inauthentic accounts, that might lead to a
harder distinction of the nature of the ad; this is especially true if the labelling of a
political ad is easy to remove. The lack of transparency in political ads, combined in the
online world with proliferation of other information, can also make it difficult to identify
essential official information about elections, such as on timing.
Figure 17: OPC question on information about advertising
The potential to exploit the current lack of transparency, particularly online, to
manipulate the electorate, impacts citizens’ and governments’ trust in online ads. Such
concern is relevant from an internal market perspective: it is reported as motivating the
Irish legislative proposal to include a ban on online political ads from foreign actors,
including EU citizens310
.
Stakeholders’ views
NGOs and academic experts interviewed for the underlying study attribute the issue of
insufficient transparency of political ads largely to online platforms and political parties.
Societal and political actors lack information to hold political actors and parties
accountable on their online political advertising activities
308
How can the Swedish Government prevent Political Micro- Targeting from threatening the Electoral Process?
(2018) Knäpper Bohman, C.
309
See, for example, Fool me once: Regulating “fake news” and other online advertising (2018) Wood, A. K., Ravel,
A. M. Available at: https://southerncalifornialawreview.com/wp-content/uploads/2018/10/91_6_1223.pdf
310
General Scheme of the Electoral Reform Bill 2020, pp246-248 (08/01/2021).
https://www.gov.ie/en/publication/34cf6-general-scheme-of-the-electoral-reform-bill-2020/
107
Certain actors play a specific role in the political process in holding political actors to
account and in supporting a plural and open political debate (‘interested actors’). This
includes journalists, civil society organisations (“CSOs”), election observers,311
academia, citizens and political actors themselves. Member State regulatory frameworks
can include specific provisions reflecting the role such actors play in the political
process, but these provisions are not available consistently in all Member States,
especially online.
They can be related to the rights of political actors to access the debate (for instance,
through rules specifying the amount of time different parties or candidates may run
broadcast media slots) to the enforcement of other rights in the political process (such as
the right to reply and rectification312
), or the availability of information to interested
actors to monitor the debate313
and hold politicians to account for their campaign
messages.
To play their role as watchdogs in the democratic process, these actors need access to
specific information, in particular ads’ sponsors, amounts spent and sources of
financing314
. The literature review found a substantial lack of quantitative and
comparable data on political advertising for electoral campaigns, particularly online.
Stakeholders’ views
CSOs expressed concerns about the lack of transparency on online advertisement as impeding
their role in the democratic process.315
They indicated that transparency should include enough
information about the ads to allow campaigns to be followed across platforms and media, and
could be pre-processed to help actors make best use of it316
.
Within its (limited) scope, the DSA will already provide researchers with access to
relevant data held by online platforms (transparency reports317
, obligation from VLOPs
to make publicly available an ad repository, obligation to disclose data to vetted
researchers). Political actors and civil society will not, however, be provided such access
directly.
The EU Action Plan against Disinformation318
aims to support the creation of a multi-
disciplinary community of independent fact-checkers and researchers focused on
emerging digital media vulnerabilities and disinformation campaigns within the EU. The
new European Digital Media Observatory (EDMO), operational from June 2020, will
311
Accredited election electoral observers have privileged access to aspects of the voting process in some Member
States, but there are few other rules mandating transparency for this group.
312
Approached differently in the Member States. The right to reply is also provided for television broadcasting in
Article 28 AVMSD.
313
See for on-line activities, the recently issued guidance for a new Code of Practice on Disinformation.
314
This was highlighted notably by NGOs and more specifically by the civil society coalition active in the area in a
statement. Governing Platforms Project, Putting Meaningful Transparency at the Heart of the Digital Services Act Why
Data Access for Research Matters & How we can Make it Happen, https://algorithmwatch.org/en/wp-
content/uploads/2020/10/Governing-Platforms_DSA-Recommendations.pdf
315
Several highlighted key concerns in a joint statement on the topic 8 September 2020, Joint Call for Universal Ads
Transparency: https://epd.eu/wp-content/uploads/2020/09/joint-call-for-universal-ads-transparency.pdf
316
In this regard, actors pointed to the policy of the Netherlands authorities to support independent organisations to
perform such pre-processing, including through the Political Microtargeting: Safeguarding public values project
https://politieke-advertenties.nl/22-2/
317
And a database with statements of reasons for removal of content which is considered illegal or against terms and
conditions of the service provider.
318
Join (2018) 36 FINAL
108
help build such a community and coordinate fact-checking and research efforts across the
EU.319
The signatories of the Code of Practice on Disinformation committed to provide
researchers access to data from their services, including on political ads320
. The European
Commission’s Guidance on the Code of Practice sets out how to increase transparency
regarding political and issues ads on signatories’ services, including with efficient
labelling of such ads, increased transparency in messaging platforms, measures to limit
the risks associated with micro-targeting and improved ad repositories.
Together, these EU initiatives offer only a partial solution to the needs of such actors
specific to oversight of political ads.
Stakeholders’ views
CSOs were sceptical about the capacity of industry initiatives to sufficiently enhance
transparency321
. They did not find the platforms self-regulatory measures sufficient to provide
reliable data.322
They considered that the platform-provided libraries were poorly functioning and
would need standards to ensure quality. In addition, they highlighted that mandatory ad libraries
should exist for all online platforms.323
Moreover, stakeholders highlighted that it was necessary to go beyond the mere publication of
the ads and to address the influencing methods used to enhance the impact of ads, including
manipulating ranking and placement algorithms. Political actors are unable to exercise
mutual scrutiny.
Opaque political ads restrict possibilities for political actors to exercise mutual scrutiny.
Based on the feedback from Member States, if a party breaches electoral rules, for
instance on party funding, it is currently unlikely that it will be possible to establish this
through the available information with sufficient certainty for other parties to flag such
activities to the public or the relevant authorities.324
Member States are unable to monitor and enforce relevant rules325
Competent authorities face difficulties to exercise their oversight function326
, especially
in cross-border contexts. There are also important discrepancies between the oversight
they are able to exercise online and offline327
.
Limited legislation providing insufficient information
319
In September 2021, eight independent multidisciplinary hubs become operational (each one covering one or more
Member States). They will become part of EDMO network of hubs on digital media to contribute to the fight against
disinformation across Europe.
320
Efforts to implement these commitments have been criticised for being insufficient, inconsistent and untransparent.
321
In observed through interviews, written EDAP public consultation responses, as well as public statements including
(1) Governing Platforms Project, Putting Meaningful Transparency at the Heart of the Digital Services Act - Why Data
Access for Research Matters & How we can Make it Happen (previously quoted), and (2) Joint Call for Universal Ads
Transparency, https://epd.eu/wp-content/uploads/2020/09/joint-call-for-universal-ads-transparency.pdf
322
See the underlying study, in particular its table 1 (Examples of existing monitoring platforms).
323
A comprehensive plan to innovate democracy in Europe. Available at: www.youthforum.org/comprehensive-plan-
innovate-democracy-europe
324
This was a discussion point within the Dutch Code of Conduct, elaborated within the framework of the last Dutch
elections and signed by almost all national political parties and global online platforms. Available at:
https://www.idea.int/sites/default/files/news/news-pdfs/Dutch-Code-of-Conduct-transparency-online-political-
advertisements-EN.pdf
325
This section does not cover data protection/targeting which are dealt with in a different problem.
326
The national authorities responsible for the enforcement and oversight of rules on online political advertising tend to
vary across Member States (as well as their exact competences) and their coordination is typically insufficient.
327
See mapping of national legislation in Denmark in Annex 8.
109
Few Member States impose obligations to provide information on key aspects of online
political advertising, such as the amounts spent328
. When general legislation is in place, it
is usually not adapted to the online environment or to cross-border oversight needs. It
emerged in the consultation for instance that when the rules on traditional media do apply
to social media, they are usually not monitored there, both through a lack of requisite
capability and powers in the competent authority329
. Oversight is not consistent for online
and offline media, leading to poor regulatory outcomes.
This can contribute to specific issues with political advertising in multiple Member States
or across borders. For instance, the national regulatory body of Lithuania acknowledges
difficulties in monitoring political campaign expenditure on political advertising. It
referred to the absence of a proper system to monitor editorial coverage of broadcast,
online and print media during election campaigns, and having to rely largely on
complaints or notifications received from third parties to detect cases of possible hidden
advertising.330
In France, the Commission nationale des comptes de campagne et des
financements politiques does not undertake real-time campaign monitoring or obtain
information from donors and service providers331
.
These issues are linked to the underlying regulatory framework. For instance, in
Denmark, internet resources, including online editions of newspapers or broadcasters, are
not covered by the rules that apply for offline political ads332
. Similarly in Bulgaria,
Czechia and Slovakia333
for campaigning on social networks and online media. In
Romania, political ad provisions for private offline broadcasters appear restrictive,
whereas there are no such restrictions for print and online media334
.
Insufficient information and ineffective collaboration between national authorities and
economic actors including online platforms and media
The information published by ad publishers or political parties about their online
advertising is often insufficient to permit effective oversight, and other sources of
information are necessary. The information is generally published by parties or oversight
bodies with a certain delay, incomplete and not precise enough to evaluate if online
political advertising expenditure is compliant with transparency requirements.
Member States efforts to address the issue remain fragmented. The French Law of 22
December 2018 to counter information manipulation introduced a duty for online
platforms to cooperate with relevant authorities against the dissemination of false
328
See Annex 8 on legal mapping in Member States.
329
See underlying study.
330
OSCE/ODIHR (2019), Republic of Lithuania Presidential Election 12 and 26 May 2019 ODIHR Election -
Assessment Mission Final Report. Available at: https://www.osce.org/files/f/documents/a/e/433352.pdf
331
OSCE/ODIHR (2017), Republic of France Presidential election 23 April and 7 May 2017 OSCE/ODIHR Election
Expert Team Final Report. Available at: https://www.osce.org/files/f/documents/c/8/337346.pdf
332
Internet platforms are unregulated, yet they can voluntarily register to become subject to the Media Liability Act.
333
OSCE/ODIHR (2021), Republic of Bulgaria Parliamentary Elections 4 April 2021 ODIHR Needs Assessment
Mission Report. Broadcasters and audio-visual online content will only be reviewed in case of complaints, while other
media are monitored; OSCE/ODIHR (2017), Czech Republic Parliamentary Elections 20-21 October 2017,
Presidential Election January 2018 OSCE/ODIHR Needs Assessment Mission Report; OSCE/ODIHR (2019) Slovak
Republic Presidential Election 16 and 30 March 2019, ODIHR Election Assessment Mission Final Report.
334
OSCE/ODIHR (2020), Romania Presidential Election 10 and 24 November 2019 ODIHR Election Assessment
Mission Final Report. Available at: https://www.osce.org/files/f/documents/8/a/449200_0.pdf
110
information, especially during the election period335
, but it has faced challenges in its
application.
Stakeholders’ views
In the framework of ECNE336
, Member States’ expressed the need for more effective oversight
possibilities applicable both offline and online to address opaque practices related to political ads.
They underlined that, even when rules apply to political advertising on all types of media
including social media and platforms, online platforms do not wish to engage in collaboration or
to share relevant information allowing competent authorities exercise their monitoring functions.
Some national authorities reported that there is no cooperation with online platforms during the
usual “reserve period” or “silence period” preceding polling day337
. The lack of accessibility and
transparency about online political content leads to a difficulty to access the content of the
advertisements and their archives and the difficulty to access who financed these advertisements.
Opaque practices related to political ads are also indicated as being of concern in the
consultation, such as anonymous online fundraising through e.g. GoFundMe338
. In Spain, there
were concerns related to the use of messaging applications (e.g. WhatsApp) for campaigning due
to difficulties in assessing the compliance of such campaign activities with legislation339
.
Consequences
Stakeholder groups in the consultation were unanimous in recognising the negative
impact of the poor regulatory outcomes on democratic processes and on public
confidence and trust in political ads. This has prompted several Member States to
legislate and to prepare legislation unilaterally to address these issues. Yet, these Member
States and others have also indicated that national regulation is unlikely to be effective in
addressing the cross-border aspect of this problem without a sufficient EU framework to
support them.
2.2.2.2 Targeting and other dissemination and amplification techniques in online
political ads create problems for citizens and for the democratic process (Problem 2.2)
Targeting (also referred to as microtargeting when tailored at individual or small group
level) is increasingly used to enhance the impact of political ads online. It is used to
direct specific political messages to selected audiences on the basis of personal data
based on interactions between citizens and online service providers. It is used to tailor
ads to individuals, including social media posts, banner ads, in app-ads, pop ups etc.340
335
See Article 11 of French Law of 22 December 2018 to counter information manipulation. Online platforms are
required to provide the Higher Audio-visual Council, responsible for regulating broadcasting in France, with an annual
declaration of the methods of implementation of each of the measures taken to counter the spread of false information.
Online platforms must provide users with clear and transparent information about the nature, origin and methods of
disseminating content as well as the identity of persons paying remuneration in return for the promotion of information
content.
336
Ad hoc meeting of the ECNE of 25 March 2021: https://ec.europa.eu/info/policies/justice-and-fundamental-
rights/eu-citizenship/electoral-rights/european-cooperation-network-elections_en
337
Two interviewed Member States public authorities stated that they did not manage to have a satisfactory, effective
cooperation with large online platforms so that the latter would provide them with sufficient information on online
political advertising conducted in election periods in their countries over the last two years to oversee these activities.
338
OSCE/ODIHR (2020), Ireland Early Parliamentary Elections 8 February 2020 ODIHR Needs Assessment Mission
Report. Available at: https://www.osce.org/files/f/documents/a/b/445528.pdf
339
OSCE/ODIHR (2019), Kingdom of Spain Early Parliamentary Elections 28 April 2019 ODIHR Election Expert
Team Final Report. Available at: https://www.osce.org/files/f/documents/0/5/425336.pdf
340
It consists of two steps: 1. collection and analysis of data to identify target groups, and 2. formulation of messages
to share with each of the target groups identified.
111
When information about the use of targeting techniques is not transparent, including on
how personal data is obtained and processed and on amounts being spent in targeting, it
impacts negatively the electoral process as it allows actors to target potential voters in an
opaque manner.
The use of targeting for online political advertising is associated with the mobilisation of
the electorate341
, particularly in a context of decreased participation in elections and low
attachment to political parties. It allows new and small political parties, as well as other
actors in democracy that may not have the resources to outsource nor engage in
overarching communication strategies, to amplify their voice. Stakeholders (particularly
EUPPs and CSOs) consulted indicated that it was a way for them to reach potential
voters and niche audiences easily, inexpensively and directly. Recent elections in the EU
have shown that the use of targeting is increasing, and targeted ads account for an
increasing proportion of overall political campaign spending342
.
The effectiveness of targeting, including in the political context, seem to be somewhat
contested343
, as some targeting techniques would seem not to be always very precise.
Accuracy depends on different variables (e.g. relevance of data, accuracy of modelling
etc.). Yet the sophistication of profiling and automated analysis and decision making is
strengthening the impact of the technique, enabling relevant groups to be targeted with
increasing precision344
. Companies do not publish details on the targeting services they
offer. Abusive and sometimes unlawful practices related to these techniques are also
documented in the literature345
. Watchdog organisations and national authorities appear
unable to oversee this activity effectively. These practices in connection with political
ads create specific horizontal problems for citizens and the democratic process.
Drivers of problems related to targeting
Strong public concerns have been expressed about the targeting of political ads and the
use of personal data for this purpose.346
341
Jarusch, J. (2020) Defining Online Political Advertising.
342
See underlying study.
343
Krotzek, L.J. (2019). “Inside the Voter’s Mind: The Effect of Psychometric Microtargeting on Feelings Toward and
Propensity to Vote for a Candidate”, International Journal of Communication vol. 13.
344
Opinion 3/2018 EDPS Opinion on online manipulation and personal data. Available at:
https://edps.europa.eu/sites/edp/files/publication/18-03-19_online_manipulation_en.pdf
345
(Micro)Targeting can easily conceal its intent and nature making difficult to estimate the size and scale of the
problem. See underlying study.
346
Kozyreva, A., Lorenz-Spreen, P., Hertwig, R. et al. Public attitudes towards algorithmic personalization and use of
personal data online: evidence from Germany, Great Britain, and the United States. Humanit Soc Sci Commun 8, 117
(2021). https://doi.org/10.1057/s41599-021-00787-w
112
Figure 18
Targeting of political ads is argued to be problematic per se347
.
Psychographic profiling techniques, where an individual’s special personal
characteristics are inferred from other information (e.g. Cambridge Analytica’s
involvement in the 2016 US presidential campaign and in the Leave.EU campaign in the
UK348
) are regarded as particularly threatening as it enables targeting on the basis of
special characteristics by proxy, with an increased risk of illegally bypassing informed
consent (and broader user awareness) requirements.349 This defeats the purpose of the
current framework, undermining the rights which it intended to protect.
Political ads can avoid scrutiny by being narrowly targeted to (and hence only visible
by) certain audiences or profiles. Political actors can use targeting to make irreconcilable
promises to different segments of the electorate350
. It can thus be a powerful tool to
manipulate public opinion, and exclude certain societal groups (‘redlining’, affecting
minorities and other vulnerable groups) from aspects of the public debate351
. The ‘micro’
aspect of targeting is itself part of the issue when striving for transparency, especially
democratic transparency (i.e. not directed to the user per se, but to the wider public). Ads
that are micro-targeted below a certain threshold are divulged to too small of an audience
for society itself to exercise a form of democratic oversight, and it is hardly possible to
keep track of who spreads what.
347
Dobber, T. & Ó Fathaigh, R. & Zuiderveen Borgesius, F. J. (2019). The regulation of online political micro-
targeting in Europe. Internet Policy Review, 8(4). DOI: 10.14763/2019.4.1440
348
Bakir, V. (2020) Psychological Operations in Digital Political Campaigns: Assessing Cambridge Analytica’s
Psychographic Profiling and Targeting. Front. Commun. 5:67. doi: 10.3389/fcomm.2020.00067
349
Note, for many kinds of targeting (also when not based on special categories of data), consent will be main lawful
ground available – see EDPB Guidelines on the targeting of social media users. Further, “inferred” special categories
of data are still special categories (see pp. 24-26, 32-34). https://edpb.europa.eu/our-work-tools/our-
documents/guidelines/guidelines-82020-targeting-social-media-users_en See also Annex 9.
350
IDEA (2020). Online Political Advertising and Microtargeting: the latest legal, ethical, political and technological
evolutions. Webinar Series Report.
351
Jarusch, J. (2020) Defining Online Political Advertising.
113
When information about the use of targeting352
is not provided in a political ad,
including on how personal data is obtained and processed and on the amounts spent on
targeting, this can result in individuals being targeted unconsciously, even though they
may have consented to it somewhere. Its targeted nature and sponsored character are also
not evident to other individuals exposed to the ad, such as when the targeted individual
further disseminates it to his or her peers (‘organic distribution’).
The targeting of political ads can also be exploited to manipulate the information
environment and to disseminate disinformation,353
conspiracy narratives and hate speech.
This has been observed in successive elections within the EU and in third countries.354
Transparency on the funding of political advertising is crucial to prevent foreign actors
from manipulating and interfering in civic discourse inside the European Union. and
narrowing the space for an open debate. This effect is also exploited, contributing to
fragmenting public space and polarising public opinion355
. This can compound the
problematic effect of the misleading messaging where these messages circulate within
closed groups, preventing fact checking and rebuttal. This can segment and polarise the
voter base and distort the political debate.
The use of special categories of personal data (‘sensitive data’) can be problematic and
liable to misuse. Targeting on the basis of political views (which includes inferred
political views, and which still amounts to sensitive personal data under the GDPR) can
be consented to in all Member States except for Spain.356
. This knowledge about
individuals’ political views can be exploited to increase a malicious ad’s polarising and
misleading impact, or create echo-chambers for instance.
Other forms of manipulation of the online environment, such as the use of inauthentic
accounts or paid-for user engagement for amplification, also pose a risk to distort public
opinion. Research357
suggests that there is a market for the sale of such services. When
such tactics are being employed in the context of political advertising, this has the
potential to mislead voters about the popularity of a party or a political programme.
Funds could be used to buy such services like fake engagement or amplification online –
making it crucial to include such manipulative behaviour in the considerations for rules
on political advertising.
Stakeholders’ views
Almost 70% of the Open Public Consultation (OPC) respondents indicated to be unable to find
information regarding targeting - whether and why the ad was targeted at them. There is also a
wide agreement among most stakeholders interviewed on the significant risks associated with the
use of targeting in political advertising. Civil Society Organisations (CSOs) and Member States
electoral authorities underlined the peril of this service to be hired by actors with interests
exerting some type of political pressure, focus the debate and influence and manipulate public
352
in addition to the information obligations towards data subjects under the GDPR.
353
DisinfoLab and 49 other non-profits’ open letter. https://www.disinfo.eu/advocacy/open-letter-to-eu-policy-makers-
how-the-digital-services-act-dsa-can-tackle-disinformation/
354
See for example, Matthew Crain and Anthony Nadler ‘Political Manipulation and Internet Advertising
Infrastructure https://www.jstor.org/stable/10.5325/jinfopoli.9.2019.0370
355
Lewandowsky, S., Smilie, L., Garcia, D., Hertwig, R., et al. (2020) Technology and Democracy: Understanding the
influence of online technologies on political behaviour and decision-making. European Commission, JRC Science for
policy report.
356
See Annexes 8 and 9.
357
https://stratcomcoe.org/publications/the-black-market-for-social-media-manipulation/103
114
opinion. Similarly, the use of undeclared sources of money to cover expenditures, making
difficult to track who is behind the ads, was often mentioned by stakeholders interviewed across
all categories and supported by scholarship. The transparency of targeting provided voluntarily
by very large online platforms was described as unreliable and insufficient to enable users to
understand how targeting is used358
. No information is provided on amounts spent.
Consequences
The way targeting is used with political advertising and the still not sufficient
transparency and control applied to it through regulation and self-regulation has
undermined trust in the use of such services among citizens and government authorities,
and has a knock-on effect on perceptions about the integrity of elections and the
democratic process. The association of targeting of political ads with foreign interference
and information manipulation, including disinformation has driven Member State and
private sector prohibitions of cross-border activity, which has in turn limited the
availability of services without addressing the problems connected to the use of targeting
for political ads. Proposals in the European Parliament and nationally have included
banning targeting altogether, for all advertising.
Current measures addressing this problem
Targeting and other techniques which rely on processing of personal data can affect data
protection rights as protected under EU law359
. These rules impose inter alia significant
conditions on how personal data can be processed including collected and used for
specified, explicit and legitimate purposes, requirements for lawful processing and
obligations regarding fair processing and information in relation to the data subject. The
GDPR also provides for monitoring and enforcement through independent national data
protection authorities, backed by harmonised powers including significant fines. The
DSA proposes an obligation for all online platforms to ensure that meaningful
information about targeting is presented to the user in connection to each ad, and for
VLOPs to publish targeting and delivery criteria in the ad repositories. VLOPs will also
have to assess and mitigate risks that their services may pose e.g. on non-discrimination,
freedom of expression and information, or the intentional manipulation of their service
with a negative effect on electoral processes, public health or civic discourse. National
rules on political advertising can also be engaged by targeting activity360
. Annexes 8 and
9 present the relevant national and EU provisions.
The Code of Practice on Disinformation includes a relevant commitment among its
signatories361
to provide transparency about the use of targeting. The Commission’s
Guidance on the Code calls upon signatories to further strengthen the Code’s
commitments in this regard, notably to contribute to limit or avoid risks associated with
micro-targeting, to inform individuals when they are being micro-targeted, and to provide
greater transparency and disclosure around the micro-targeting of political ads.
358
See underlying study.
359
See GDPR and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning
the processing of personal data and the protection of privacy in the electronic communications sector (Directive on
privacy and electronic communications), https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A02002L0058-20091219
360
Dobber, T. & Ó Fathaigh, R. & Zuiderveen Borgesius, F. J. (2019). The regulation of online political micro-
targeting in Europe. Internet Policy Review, 8(4). DOI: 10.14763/2019.4.1440
361
‘Ensure transparency about political and issue-based advertising, also with a view to enabling users to understand
why they have been targeted by a given advertisement’.
115
The Electoral Package Recommendation asked Member States and political parties to
take steps to ensure that information was provided to individuals about targeting. Non-
binding initiatives at the civil society level include the “who targets me” project, which
aims to enhance the recognisability of targeting, and AlgorithmWatch’s Monitoring
Instagram project, which aims to scrutinise the platform’s ad-related practices to hold it
to account.362
Such valuable independent transparency initiatives are fragile; platforms
can threaten them with lawsuits and arbitrarily shut down initiatives, as is the case with
AlgorithmWatch’s Monitoring Instagram project363
and with the Online Political Ads
Transparency Project from New York University.364
While some information about targeting is now provided by certain platforms about
certain political ads, there continue to be issues concerning the consistency and
comparability of this information, as well as the ads which are either out of scope from
such policies (such as where they are provided via ad intermediaries) or where the
criteria used for targeting are complex or indirect (‘mirror audiences’365
).
Self-regulation has not provided a solution to the issues raised by transparency in
political advertising. National measures are being considered, but they will not address
the cross-border nature of this issue and are unlikely to be effective.
2.2.2.3. Member State are unable to monitor and enforce transparency of political ads,
and other relevant rules (Problem 2.3)
There is a substantial body of national regulation relevant to political ads, including
electoral and political party rules, political funding and transparency rules and regarding
relevant audio-visual media and other media services. There are also relevant EU rules,
including on data protection and audiovisual media services. National competent
authorities encounter challenges with monitoring and enforcing these rules because they
lack sufficient:
 information about the political ads in circulation, especially online; and
 powers and capability to perform their oversight functions across borders.
Lack of resources, capacity, competence regarding political advertising
The lack of appropriate powers and resources is raised by both civil society and
international organisations. They mentioned the under-capacity of relevant authorities
and bodies at Member States level to enforce regulation (including on the origin of funds
used for political ads). A review of OSCE reports on elections in Member States in the
past years highlights a lack of capacity, resources and sometimes knowhow among
entities in charge of monitoring and enforcement.366
362
https://whotargets.me/en/ad-targeting-in-the-german-election/ Similar projects include Dataskop
(https://dataskop.net/overview-in-english/) and the Online Political Ads Transparency Project from New York
University (https://www.politico.eu/article/facebook-nyu-laura-edelson-political-ads/).
363
https://algorithmwatch.org/en/instagram-research-shut-down-by-facebook/
364
https://www.politico.eu/article/facebook-nyu-laura-edelson-political-ads/
365
Mirror audiences are target groups based on similar characteristics as known audiences (for example, “all users who
interacted with the party’s site on the platform”). Platforms often use algorithms to determine such audiences and thus
do not know themselves how they were built.
366
For example, in Italy, Regional Electoral Guarantee Boards reported a lack of capacity to verify candidate’s
campaign finance reports. Furthermore, it was mentioned that competent bodies lack the power and resources to
conduct an efficient supervision, investigation and enforcement of political finance regulation: OSCE/ODIHR (2018),
Italian Republic Parliamentary elections 4 March 2018 ODIHR Election Assessment Mission Final Report. Available
116
The legal mapping indicates that very few national authorities and bodies are empowered
to supervise online political advertising. National monitoring and enforcement are
strongest with respect to the funding of political parties and candidates and their
financing of their campaigns offline.
Extraterritorial nature of the enforcement of online political advertising
National authorities and bodies reported limited resources and insufficient capacities for
oversight over political advertising across borders. The market for political advertising
would tend toward becoming increasingly cross-border despite the obstacles,367
as many
relevant service providers and platforms are based in a limited number of Member States
(mostly Ireland, Belgium and the Netherlands) or even third countries, and multi-
Member State or cross-border campaigns are becoming more common. National rules
cannot easily be enforced across borders, and with the exception of the exchange of
information and practices coordinated in the European cooperation network on elections,
Member States reported little cooperation among authorities in this respect.
EU law provides for oversight of a number of aspects of activity relevant to political
advertising. Annex 9 presents the relevant EU provisions.
Insufficient coordination among national authorities in political advertising
Outside of EU coordinated governance (which is sketched in the figure above and
elaborated on in depth in Annex 9), the legal mapping describes368
the diversity of
existing authorities and bodies in the different Member States playing a role on the basis
of different legal acts. The OSCE reports on EU Member States’ elections provides
various examples of insufficient coordination in this area369
.
This increases the challenges linked to cooperation in this area. The European
Cooperation Network on Elections (ECNE) established on the basis of the 2018
at: https://www.osce.org/files/f/documents/9/5/383589_1.pdf. Similar issues were mentioned for Portugal, Bulgaria,
Latvia and Slovenia: OSCE/ODIHR (2020), Portugal Presidential Election 24 January 2021, ODIHR Needs
Assessment Mission Report. Available at: https://www.osce.org/files/f/documents/c/a/473994_1.pdf; OSCE/ODIHR
(2021), Republic of Bulgaria Parliamentary Elections 4 April 2021 ODIHR Needs Assessment Mission Report.
Available at: https://www.osce.org/files/f/documents/6/0/476866_0.pdf; OSCE/ODIHR (2019), Republic of Latvia
Parliamentary Elections 6 October 2018 ODIHR Election Assessment Mission Final Report. Available at:
https://www.osce.org/files/Latvia%202018%20parliamentary_final%20report_17.01.2019.pdf; OSCE/ODIHR (2018),
Republic of Slovenia Early parliamentary elections 3 June 2018 ODIHR Election Assessment Mission Final Report.
Available at: https://www.osce.org/files/f/documents/0/d/394106.pdf.
367
See market analysis provided in VVA study.
368
Underlying study.
369
For instance in Bulgaria, the Council for Electronic Media is charged with monitoring content on certain television
and radio stations. However, the entity has no authority to sanction media for election-related violations but must
forward the issue to the Central Election Commission (CEC) which in turn can decide whether to review the issue or
impose sanctions (OSCE/ODIHR (2021), Republic of Bulgaria Parliamentary Elections 4 April 2021 ODIHR Needs
Assessment Mission Report. Available at: https://www.osce.org/files/f/documents/6/0/476866_0.pdf). In Italy, the law
does not regulate the cooperation among the relevant competent bodies and a practical working arrangement was said
to be lacking (OSCE/ODIHR (2018), Italian Republic Parliamentary elections 4 March 2018 ODIHR Election
Assessment Mission Final Report. Available at: https://www.osce.org/files/f/documents/9/5/383589_1.pdf). In
Slovenia, the responsibilities to supervise the relevant rules on political advertising, in particular rules on election and
referendum campaigns, on monitoring of the mandatory ‘silence period’, on financing of the election campaigns, on
supervision of electoral stations and finally, on monitoring any violation of political parties’ acts, is spread over five
different authorities. In turn, these authorities are spread across the national and local level of government:
OSCE/ODIHR (2018), Republic of Slovenia Early parliamentary elections 3 June 2018 ODIHR Election Assessment
Mission Final Report. Available at: https://www.osce.org/files/f/documents/0/d/394106.pdf.
117
Recommendation supports exchanges of practices and information in this area, and
supported the preparation of the mapping for this impact assessment.
First impact: Fragmented enforcement of rules and fragmentation of sanctions
applicable at national level
The lack of capacity, resources and knowhow of national competent authorities to
properly enforce legislation, as well as the insufficient coordination between these
entities affect enforcement nationally. In light of the country-of-origin principle,
enforcement is also affected by the limits to the imposition of sanctions for infringements
of national rules in one Member State based on political advertising (and related
activities) originating from enterprises established in another Member State370
. The
different sanctions laid down by various Member States legal systems, such as fines,
interim measures or for some imprisonment sentences (in more than a third of Member
States), cannot be effective and dissuasive.
Second impact: Use of undeclared sources and interference by foreign actors
Difficulties exist with the lack of transparency including the use of financing to conduct
political advertising across borders. It might not be declared to the competent authorities,
or it might be from sources which contravene relevant rules in certain Member States.
This can concern anonymous donations or monetised content, or through crowdfunding
campaigns, which might contravene relevant rules. This enables foreign state and non-
state actors to manipulate and interfere in the EU’s democratic debate.
Stakeholders’ views
Stakeholders interviewed by the contractor with direct experience on funding of political parties
and online political campaigns indicate that the legal framework and its enforcement are not
adequate to counter the threats of uses of undeclared sources in online political advertising. In
particular, the heterogeneity of the regulation at the Member State level makes it easier for
foreign actors – private or State-sponsored – to interfere in electoral processes in the EU either
supporting specific candidates or parties manipulate the information environment, including the
dissemination of disinformation.
370
For instance to enforce French provisions regarding political ads circulated into France by services established in
Luxembourg, where the services comply with the national rules of Luxembourg.
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Annex 6: Intervention logic
119
Annex 7: Legislation addressing political advertising across
Member States
1. General rules on political advertising
Sources
Legal practices regarding the regulation of political advertising differ across Member
States. Political advertising is governed by varying, sometimes cumulative, legal sources:
1) Constitutional provisions and fundamental rights; 2) electoral laws; 3) general laws
applying to commercial and non-commercial advertising as well as advertising codes; 4)
laws on (financing of) political parties. That is why, political advertising is often
regulated through overlapping legislation. Several Member States are contemplating – or
already in the process of developing371
hard or soft law specifically for online political
ads, as delineated in point 7 below. The current patchwork of legislation at national level
applicable directly or indirectly to online and offline political advertising is such that the
obligations imposed can be inconsistent and unclear, in particular for actors operating in
a cross-border context.
Members States apply different rules regarding the transparency requirements applicable
to political ads, as is visible in Table 8.0 below. The rest of Annex 8 delves deeper into
the analysis of other elements of the regulation of political advertising.
The data presented in this Annex is based on submissions from Member State authorities,
as well as on desk research.
Table 8.0. Transparency requirements for publishing political ads (on at least one
medium), grouped by Member State
Clear separation from editorial content (labelling) AT BG CY DE DK EL ES HU LT LV PL SI IE* NL*
Identification of Advertiser BG CZ DK FI FR IE LT LV PL SI SK IE* NL*
(Depending on the type of material), the number
of copies, identity and contact details of the
publisher
FR LT DK HU IE LV RO IE*
Amount of remuneration received for the ad FR IE*
Keep records on, report on or declare financing
political activities and election campaigns
FI HR HU LT LV PL PT IE* +
IE* and NL*: forthcoming
Definitions372
Political advertising defined in the broadest sense refers to political propaganda. As a
rule, national advertising provisions are not applicable as they require payment or similar
considerations.373
Only some Member States (7 in total) provide a specific definition of
political ads: In CY, political advertisement is an “announcement or message of any kind
371
In the case of IE and NL
372
See table 8.1.
373
This information was gathered in a 2006 survey by the European Platform of Regulatory Authorities (“EPRA”),
mentioned in the 2013 European Court of Human Rights Case of Animal Defenders International v. The United
Kingdom http://hudoc.echr.coe.int/eng?i=001-119244
120
transmitted in return for payment or consideration by a candidate in presidential or
parliamentary elections or European Parliament elections or any other election.” FI
defines political advertising as all forms of advertising by parties, candidate or
candidate’s support groups during any elections campaign. HU defines it as a program
intended to promote or support a party, political movement or government, or to promote
their names, purposes, activities, slogans, emblems; appearing or published in a manner
similar to advertising. In LT, ‘political advertising’ means information disseminated by a
state politician, political party, its members, a political campaign participant, on behalf
and/or in the interest thereof, in any form and through any means, for payment or without
charge, during a political campaign period or between political campaigns, where such
information is aimed at influencing voters’ motivation when voting at an election or a
referendum, or where it is disseminated with the purpose of campaigning for a state
politician, political party, its member or a political campaign participant as well as their
ideas, objectives or programme. LV defines pre-election campaigning as political parties,
associations of political parties, associations of voters or deputies advertising the
candidate in the media or otherwise, if it contains a direct or indirect invitation to vote for
or against a political party, association of political parties, association of voters or
candidate for deputy. SE defines advertisements as commercials or other messages
broadcast on behalf of someone else and that aim at promoting a cause or an idea and the
specifies that opinion advertisements are messages broadcast on behalf of someone else
and that aim at gaining support for political or religious ideas, or opinions related to the
labour market. SK defines it as support for a political party, political movement, party
member or movement member or candidate, possibly in their favour during an election
campaign or a referendum campaign, popularization of the name, brand or slogans of a
political party, political movement or candidate. Some 8 other Member States (ES, FR,
HR, IE, PT, SI)374
cover the concept of political advertisement by using the broader term
of political/election campaign or political propaganda, which encompasses other kinds of
activities (such as meetings, debates, handing of small gifts etc.). In BE, the definition is
given indirectly as electoral propaganda expenses are defined as those “relating to verbal,
written, audio and visual messages, intended to favourably influence the result of a
political party and its candidates and issued within four months preceding the elections”.
In IT, there is a definition of radio and television political communication as radio and
television media of programs containing political opinions and evaluations. Other times
the political advertising concept is defined in the generic audiovisual commercial
communication law as those communications that “are designed to support a cause or
idea” (AT).
Some Member States (CZ, DK, and RO) mention either political advertisement or
political propaganda without further definition. 9 Member States (DE, EE, EL, SE, LU,
MT, NL and PL) do not provide any definition for political advertisement yet.
374
In Spain, political advertising is covered by the term “electoral campaign” which means “all the lawful activities
carried out by candidates, parties, federations, coalitions or groupings in order to get votes”. In France, similarly,
political campaign is covered by the term electoral propaganda. In Portugal, “any type of activity which aims directly
at promoting candidates (be it of candidates, of subscribers of candidates, or of the respective political parties
supporting a specific candidacy), as well as the publishing of texts or images which express or reproduce the content of
those activities” is considered political advertising. In Slovenia, political propaganda are the messages (spots) and other
forms of political propaganda whose purpose is to influence the stance of voters in casting their votes in elections. This
kind of election campaign is regulated only for 30 days before the day of voting. Political advertising outside of the
election campaign period are considered as commercial advertising in line with the Mass Media Act.
121
All in all, even when Member States do define the concept of political advertisement,
those definitions have different scopes and requirements and use different types of
criteria such as objective, subjective and time. Sometimes, a payment is a requirement to
qualify as an ad. Timing is also an important factor in the definition of political
advertising (as for some Member States, only those during the electoral period will be
categorised as such),375
which is particularly relevant as in some Member States political
ads are not allowed during certain periods before elections.
Paid broadcast political advertising has long been statutorily forbidden in the majority of
Western European Countries and several countries from Central and Eastern Europe.376
Even in countries that allow paid political advertising there are some restrictions on when
it is allowed to run political ads. The scope of the ban on political advertising usually
does not relate exclusively to election periods, political parties and candidates but may
also include other issues that reflect societal debates such as environmental issues and
abortion. Some countries provide for a more restricted ban, only concerning political
actors (parties and candidates). The ban sometimes only covers certain types of media
(for example TV ads but not advertisement on radio). Most of the countries which allow
political advertising also foresee certain legal restrictions to avoid the discriminatory
character of the practice, including limits on the duration and frequency, scheduling,
limits on charges, labelling, and equal conditions for all parties. AT, EE, FI and PL were
given as examples of countries without restrictions on paid political advertising.
Content377
While most Member States do not have explicit rules on the content of political
advertisement there are a few that restrict it. Besides some limitations arising from
provisions from criminal law, intellectual property law and other legal branches not
specifically related to elections, there are some examples of provisions that election
campaigns must be conducted honestly and fairly (CZ), that false information about the
candidates must not be published (CZ), prohibition of materials that harm the good
manner, honour and reputations of candidates (BG, RO) or that constitute hate speech or
political extremism (RO, DE378
), provisions that political advertising should not offend
political beliefs (EL) and bans on campaigns of achievements or accomplishments of
public authorities (ES).
In FR, there is a provision on “new elements of electoral controversy” where, in order to
maintain the adversarial nature of the electoral debate, it is forbidden for any candidate to
bring to the attention of the public a new element of electoral controversy at a time such
that his opponents do not have the opportunity to respond meaningfully before the end of
the electoral campaign. Subsequently, broadcasting media are also banned from
publishing comments by a candidate that include a new electoral argument to which their
opponents are unable to offer a reasoned response before the end of the election
campaign.
375
In Belgium, electoral propaganda expenses are those relating to verbal, written, audio and visual messages, intended
to favourably influence the result of a political party and its candidates and issued within four months preceding the
elections. In Slovenia, the election campaign is only regulated only for 30 days before the day of voting with political
advertising outside of the election campaign period being considered as commercial advertising. Other Member States
also use the time factor of the election period to define political advertisements.
376
European Court of Human Rights, Animal Defenders International v. The United Kingdom. See particularly the
references to the 2006 EPRA study. http://hudoc.echr.coe.int/eng?i=001-119244
377
See table 8.2
378
NetzDG prohibits harmful contents that are exhaustively listed. Such content needs to be checked and deleted by the
online provider if illegal. Among such content is hate speech and political extremism.
122
In HR, at certain elections (including elections for the European Parliament) an Ethics
Commission is established as an ad-hoc authority to ensure ethical and democratic
principles in the election are adhered to. It adopts and publishes the Electoral Code of
Ethics which consists of codes of conduct for individuals and political parties in the
election campaign and in the electoral process. Within their competencies, they can issue
announcement and warnings related to the content of the campaign. There are examples
of provisions for sign language interpretation or subtitles to be included in political
advertisements (HU).
There are provisions forbidding the use of national symbols (either domestic or foreign)
(BG, RO) or religious signs or images (BG). Some Member States have specific
language requirements and forbid political advertisement that is not in their own
language (EE, LV in the future).
Targeting
It seems that Finland is one of the only three Member State that has rules explicitly on
(micro) targeting. While targeted advertising and profiling based on personal date are not
categorically prohibited, the advertising recipients must be provided with sufficient
information on why they are being targeted, who is responsible for the advertising and
how they can exercise their data protection rights. These requirements were created
through specific legislation379
with the aim to go beyond the GDPR.
Ireland is another Member State which directly regulates micro-targeting: Part 3 Section
30 of the Irish Data Protection Act makes it an offence for companies or corporate bodies
to process the personal data of a child for the purposes of direct marketing, profiling or
micro-targeting.380
Political advertising is perhaps less often targeted at children, but this
situation remains relevant. The forthcoming Irish proposal will also regulate the
transparency of targeting practices.
Targeting political ads based on political opinions (which constitutes sensitive personal
data) is in practice mostly prohibited in Spain. Political parties were previously able to
use the public interest legal basis (Art. 9(2)(g) GDPR) entrenched in the national
electoral law (LOREG Art. 58 bis 1)381
to process such data, but the Spanish
Constitutional Court struck down that provision of the law382
Further, consent is not a
possible ground, as the Spanish implementation of the GDPR, the Organic Law on
Protection of Personal Data and Guarantee of Digital Rights, says that, in order to avoid
discriminatory situations, the sole consent of the data controller shall not be sufficient to
lift the prohibition on the processing of data the main purpose of which is to identify their
ideology, trade union membership, religion, sexual orientation, beliefs or racial or ethnic
origin.383
Parties are still allowed to process personal data manifestly made public by the
data subject (9(2)(e)), which may allow them to target electoral propaganda based on
political opinions, but the scope for this is very limited. Further, as regard the use of
targeting techniques as such, a (legally binding) Circular by the national DPA labels
political campaigning as a “high risk” activity, and bans any form of data processing
379
The Data Protection Act, https://www.finlex.fi/fi/laki/smur/2018/20181050. For an English translation see:
https://www.finlex.fi/en/laki/kaannokset/2018/en20181050.pdf
380
Data Protection Act 2018, Section 30, http://www.irishstatutebook.ie/eli/2018/act/7/section/30/enacted/en/html.
381
https://www.boe.es/buscar/act.php?id=BOE-A-1985-11672&tn=0&p=20210707
382
https://www.tribunalconstitucional.es/NotasDePrensaDocumentos/NP_2019_076/2019-1405STC.pdf
383
Organic Law on Protection of Personal Data and Guarantee of Digital Rights, article 9.
https://www.boe.es/buscar/doc.php?id=BOE-A-2018-16673
123
(such as microtargeting) that attempts to divert [desviar] the will of voters, because not
proportionate under GDPR requirements.384
The Circular further forbids profiling at the
individual level or on the basis of very specific personal characteristics.
Silence periods and timing for political advertising385
20 Member States have established silence periods (sometimes called reflection days) in
order to prevent voters to be influenced in the immediate run-up to the election. These
silence periods have different lengths (from one day to 55 hours before the voting) and
scopes (sometimes only broadcasters are forbidden to carry content relating to election
issues allowing for candidates to continue campaigning through other methods,
sometimes all campaigning activity is forbidden). Even when there is not a silence
period, election campaign in polling stations is still sometimes forbidden (DE, EE, and
FI). It varies across Member States whether political advertising is allowed outside
election periods (see table 8.1). Sometimes the only “advertising” allowed is the one
done through the (free) airtime in broadcast media, usually during election periods,
sometimes paid political advertising is allowed regardless of the timing.
2. Transparency requirements for political ads (whether offline or online)386
While the European Court of Human Rights observed already in 2013 that there was a
lack of European consensus on how to regulate paid political advertising in
broadcasting,387
the current patchwork of legislation at national level – together with the
great variety of approaches and requirements – applicable directly or indirectly to
political advertising is such that the obligations imposed can be inconsistent and unclear,
in particular for actors operating in a cross-border context. Some Member States forbid
anonymous political advertising and others require some specific information on the
identity of the sponsor to be displayed on the ad (BG, CZ, DK, FI, FR, IE, LT, LV, PL,
SI, SK); in FI, this is a requirement only when the amount payed for the ad is above a
certain threshold (€800 in municipal elections or €1,500 in parliamentary, European or
presidential elections). Some Member States (AT, BG, CY, DE, DK, EL, ES, HU, LT,
LV, PL and SI) have requirements on the labelling of political advertisement, or at least a
clear separation between advertising and editorial content, to ensure they are regarded
and identifiable as such. Sometimes it is not clear whether these requirements are also
applicable to the online environment – if only implicitly – as they are provided by
general rules not specific to the online environment.
FR has the most comprehensive regulation with a new law tackling false information
with specific transparency obligations for (some) online platforms, including providing
users information on the identity of the private person or company which pays the
platform for the promotion of information content.
The relevant national rules on transparency of political advertising have been collected
and listed in table 8.3. There, the differences in transparency requirements are put into
384
Circular 1/2019, de 7 de marzo, de la Agencia Española de Protección de Datos, sobre el tratamiento de datos
personales relativos a opiniones políticas y envío de propaganda electoral por medios electrónicos o sistemas de
mensajería por parte de partidos políticos, federaciones, coaliciones y agrupaciones de electores al amparo del artículo
58 bis de la Ley Orgánica 5/1985, de 19 de junio, del Régimen Electoral General.
https://www.boe.es/boe/dias/2019/03/11/pdfs/BOE-A-2019-3423.pdf
385
See table 8.1
386
See table 8.3
387
European Court of Human Rights, Animal Defenders International v. The United Kingdom.
http://hudoc.echr.coe.int/eng?i=001-119244
124
light - putting aside the fact that due to differences in definitions, an advertisement may
count as political in one Member State and as not political in another. In particular,
providing cross-border advertising may be confusing because while in HU and RO it is
required to provide information about the sponsor and publisher of the political
advertisement, that is not required when the ad is an online ad, whereas in CZ, LT, FI,
SK, FR, and (forthcoming) IE and NL this is the case (and the publisher may be termed a
‘processor’, ‘intermediary’ or ‘supplier’ depending on the national framework). In FR, FI
and (forthcoming) IE and NL there are rules specific for online advertising, with the
caveat for FR that they only apply to online platforms and intermediaries, whose number
of connections on French territory exceeds 5 million unique visitors per month on
average per year.
Further, while in CZ, ES, LT, LV, FI, SK, FR, PL, IE and NL there are or will be
transparency rules for online ads (or the existing rules simply apply online), they differ in
that, of these, only the name of sponsor and publisher are to be provided in CZ, LT, LV
FR, PL and FI, whereas in SK their address is also to be disclosed (and the forthcoming
IE rules go even further, requiring the name, postal address, email address and, where
applicable, the website address of the buyer). Additionally, in IE the amounts paid for a
political advertisement will have to be disclosed, whereas in FR the amount paid for the
promotion of an online advertisement is to be disclosed only if superior to €100. In LT,
the transparency disclosure requires information on the source of the funding of the
advertisement. Further, RO, LT and LV require information to be provided in the ad on
the intended reach, in case of printed advertisements (the number of copies), and in FR
and IE such information on intended reach is or will also be provided for online
advertisements.
In FR, the transparency requirements apply even if the sponsor is a company, whereas in
CZ, LT, FI, SK they apply only if the sponsor is a person – and, for FI (and unclear for
LT), only if the sponsor is a political actor in particular.
The few Member States having provisions on transparency of targeting also differ.
Whereas FI requires information as to why an advertisement is targeted at the person, and
the identity of the person responsible for advertising, FR requires information about the
methods of distribution, the existence of financial compensation, the extent of the
distribution (number of views, type of target population, etc.), and whether they were
generated automatically or not. The forthcoming IE rules require the disclosure of
information about targeting, including a description of the criteria used and of the
characteristics of the target audience.
In terms of disclosures also not in the advertisement itself, FI, LT, LV, HR, HU, PL, PT
and RO have reporting requirements for political actors and/or for service providers.
When requiring political actors to report on donations they received, FI and HR require
not only financial elements, but also reporting in terms of services provided free of
charge. Reporting requirements vary in terms of the kind of body reported to (e.g. to the
Central Electoral Commission in LT, to the Corruption Prevention and Combating
Bureau in LV, in the Hungarian Gazette in HU), the timing (e.g. in HR 7 days prior to
elections, in RO 15 days then 30 days after the end of the electoral campaign, or in LV no
later than 3 days after entering into a contract with a service provider/sponsor), or the
elements to be disclosed (e.g. in HR this includes the OIB of the supplier and the date or
period of advertising services, in FI the donations, in LV very detailed information about
the identity of the sponsor and contracting parties, about the advert’s form and its
removal date, the procedures and terms of payment) (for more details, see table 8.3).
125
3. Rules on Political advertising in Broadcasting media (TV and radio)
Free Airtime for political parties or candidates
Nearly all Member States have some rules on free airtime and how that free time should
be allotted to the political parties. However, the specifics of these arrangements are
different between Member States and sometimes are defined for each election. In some
Member States every party is given the same amount of airtime, in others airtime is
allotted proportionally to the results of the last elections (sometimes with rules for
smaller or new parties to ensure some kind of political visibility to every party).
Paid political advertising
Besides this free air time given to political parties there are different rules on political
advertising.
Most Member States forbid paid political advertising, others restrict this prohibition to
specific periods. Even when allowed, there is usually some regulation (e.g. the broadcast
service must give the same conditions and prices for every party).
There are also examples of self-regulation mechanisms and agreements, either between
political parties or between political parties and the media. Some of these agreements are
valid just for a specific election.
The objectives of these kinds of rules (both those on paid political advertising and those
on free airtime on (public) broadcast services), usually designed for the offline
environment, can be easily defeated if they are not applied to online platforms.
4. Rules applicable to online advertising, and/or to online platforms
Some Member States (15) have rules applicable to online advertising and/or to online
platforms. Only three Member States have rules specific to online political advertising
(see subjection on targeting above). The other Member States have rules to offline
political advertising that (sometimes, not all of them) are also applicable to the online
environment. Many times there is no explicit reference to the application to the online
environment. The application to the online environment comes as a natural interpretation
of the law, as it is not restricted to the offline environment. It varies across Member
States whether national legal practice regards them as applicable to the online
environment (14 Member States) or not (10).
Further, the legal framework is also complex and fragmented within the 27 Member
States, because the older directives – the e-Commerce Directive, for instance – are
minimal harmonisation instruments (which means that some Member States have
introduced more far-reaching rules, thereby threatening the achievement of the Digital
Single Market).388
In FR, a law was adopted on 22 December 2018, which aims to fight the manipulation of
information and the spread of false information online during electoral campaign
periods.389
It lays out transparency requirements specifically intended for online
platforms.
388
Fourberg et al. (2021), “Online advertising, the impact of targeted advertising on advertisers, market access and
consumer choice.” https://op.europa.eu/en/publication-detail/-/publication/9b3cb8b5-d55b-11eb-895a-
01aa75ed71a1/language-en/format-PDF/source-217130651
389
https://www.legifrance.gouv.fr/eli/loi/2018/12/22/MICX1808389L/jo/texte
126
The ES legislation requires transparency regarding the political nature of the message,
and only allows political actors to send or target such messages when using technological
(including web-based/online) means.390
(See sub-section on targeting above.) economic
operators can act as processors for political actors, but cannot be the sponsors themselves
of the political ads.
IT saw, already in 1999, a proposal to regulate political advertising, which put online ads
on the same footing as ads in print or broadcast;391
the part relating on online advertising
was, however, not included in the final version of the law392
.
5. Sanctions imposed by Member States
A variety of sanctions are provided for in almost all Member States for violations of these
rules, the most common sanctions being fines. Such sanctions can be relatively common
in an electoral process. For example, in 2019, in Czechia, 68 administrative proceedings
were launched during parliamentary elections, which resulted in a total of 36 fines issued.
This constitutes a high number of sanctions for violations of electoral rules. Yet, it is
unclear whether they were imposed in violation of political advertising rules as such393
.
Apart from fines, in more than a third of Member States, imprisonment sentences are also
incurred for violation of these rules. In this context, it is important to mention the
proportionality of the fines imposed for this type of violation. The OSCE report from the
elections in Romania in 2019, mentioned that sanctions for non-compliance with
campaign finance provisions were revised in 2015. However, they were said to remain
too low to be effective or dissuasive394
. Finally, another method for enforcing the relevant
rules applicable to political advertising during election period in France is the application
of interim measures for the cessation of the dissemination of false information on
communication services to the public online, when this information is likely to
undermine the integrity of elections.395
6. Authorities responsible for Political Advertising
There is a variety of authorities in the Member States with responsibilities related to
political advertising,396
sometimes there are multiple competent authorities each with
different duties397
. Usually, these authorities are the Media Regulators or the Electoral
Authorities, but also media self-regulating bodies and auditing authorities. This oversight
is sometimes linked to the financing of political parties and transparency of donations
and expenses of political campaigns. Sometimes the bodies tasked with regulating
Political Advertising are self-regulating bodies, focused on the media actors. Sometimes
it is the authority for commercial ads that also oversees political ads (in LU, for instance).
In some Member States there are multiple authorities with a limited territorial scope (DE
390
https://www.boe.es/buscar/act.php?id=BOE-A-1985-11672&tn=0&p=20210707 Art. 58bis
391
La Republica, « Niente più spot politici su tv, radio e Internet » (4 agosto 1999).
https://www.repubblica.it/online/fatti/condi/par/par.html
392
La Republica, « Par Condicio: Internet esce dal testo di legge » (22 settembre 1999)
https://www.repubblica.it/online/fatti/condi/emenda/emenda.html
393
See the mapping of national legislation in the Czech Republic.
394
OSCE/ODIHR (2020), Romania Presidential Election 10 and 24 November 2019 ODIHR Election Assessment
Mission Final Report. Available at: https://www.osce.org/files/f/documents/8/a/449200_0.pdf
395
See Article L163-2 of the French Electoral Code.
396
See table 8.3 below.
397
This is why the Commission proposed in 2018 to establish Network on elections, see 2018 elections package.
127
and ES, for example). There is also some discrepancy across these authorities as regard
to the scope of their investigative powers and the kinds of sanctions they can issue.398
7. Forthcoming national initiatives
While online political advertising is already partly regulated in Member States as
described above, there is ongoing national legislation being prepared; Ireland and the
Netherlands are particularly relevant, as well as Sweden. The Irish Electoral Reform
Bill,399
proposed in 2020, is a legislative Act that would cover broad matters relating to
elections, including a section dedicated to online political advertising. The Netherlands
has two initiatives: recent soft law in the form of the 02/2021 Dutch Code of Conduct for
Transparency in Online Political Advertisements,400
as well as upcoming hard law in the
form of the Law on Political Parties,401
which will include provisions on online targeted
political advertising (digital campaigning and micro-targeting). Swedish authorities
reported that legislating in this area was an option currently being considered, aiming at
addressing both the lack of transparency in political parties’ online expenses as well as
the risks associated with targeting.402
In terms of soft law, beside the Dutch party-wide Code (which most but not all parties
adhere to), there is also the emergence of a patchwork of voluntary commitments by
individual political parties, with at least in Germany the Greens,403
SPD,404
Die Linke,
FPD and CDU,405
as well as LaREM406
in France and Possibile407
in Italy.
Table 8.5 below compares the envisaged state of play in Ireland and the Netherlands,
highlighting the provisions most likely to be relevant for this Impact Assessment – with
the caveat that, the texts being proposals, their provisions are likely to evolve. What
emerges is that even where they overlap, there remain tensions and discrepancies: some
of the obligations would be binding in one Member State but non-binding in the other
(e.g. on transparency of the ad’s intended or actual reach), and some of the requirements
398
See underlying study, page 8.
399
General Scheme of the Electoral Reform Bill 2020, pp233-261 (08/01/2021).
https://www.gov.ie/en/publication/34cf6-general-scheme-of-the-electoral-reform-bill-2020/
400
Dutch Code of Conduct Transparency for Online Political Advertisements (09/02/2021).
https://www.idea.int/0073ites/default/files/news/news-pdfs/Dutch-Code-of-Conduct-transparency-online-political-
advertisements-EN.pdf
401
Wet op de Politieke Partijen (WPP) (“the law on political parties”) (07/12/2020).
https://www.parlement.com/id/vlboezk3ftm8/wet_op_de_politieke_partijen
402
With reference to this article : Knäpper Bohman, “How can the Swedish Government prevent Political Micro-
Targeting from threatening the Electoral Process? A Policy Memo Security, Policy and Strategy in Cyber Space.”
https://www.academia.edu/37352763/CYBER_SECURITY_How_can_the_Swedish_Government_prevent_Political_
Micro_Targeting_from_threatening_the_Electoral_Process_A_Policy_Memo_Security_Policy_and_Strategy_in_Cybe
r_Space
403
Die Grünen, “Parteirat Selbstverpflichtung für einen fairen Bundestagswahlkampf” (Voluntary commitment to a fair
Bundestag election campaign) (15/05/2021). https://www.gruene.de/artikel/selbstverpflichtung-fuer-einen-fairen-
bundestagswahlkampf
404
SPD, “Acht punkte für Fairness im digitalen Wahlkamp” (Eight points for fairness in the digital election campaign)
(07/05/2021). https://www.spd.de/fileadmin/Dokumente/Beschluesse/Parteispitze/PV_2021/SPD-PV-Kodex-
Fairness.pdf
405
Individual statements by Die Link, by the FPD and by the CDU. https://www.rnd.de/politik/wahlkampf-im-netz-
selbstverpflichtung-der-parteien-zu-fairness-gefordert-UTINBQEYOJB5RGLL3NJ7OBOZNY.html
406
La République en Marche (LaREM), “Prise de position sur la lutte contre les nouvelles formes d’ingérence et de
propagande numériques” (Position statement on the fight against new forms of foreign interference and of digital
propaganda) (June 2021). https://storage.googleapis.com/en-marche-fr/COMMUNICATION/LaREM-
Publication_Ingerences-Propagande.pdf
407
Possibile, “Una campagna web libera e uguale. E trasparente” (2017). https://www.possibile.com/campagna-web-
libera-uguale-trasparente/
128
have a different scope or require a different level of detail. This risks increasing the
existing market fragmentation. Further, it appears that the two Member States do not
necessarily identify the same problems with online political advertising, or are looking to
solve different parts of the same problem (with their Code of Conduct the Netherlands –
unlike Ireland – also looks beyond transparency requirements and into the content of the
ads, especially misleading ads). While the Irish proposal imposes obligations both on
economic actors and political parties, the provisions of the Dutch proposal only concerns
political parties. Finally, each proposal leaves gaps which need to be filled according to
this Impact Assessment (e.g. the Irish proposal does not include any restrictions
whatsoever on the criteria used for targeting).
129
Table 8.1 Political Ads – Definition, Free Airtime, Silence Period
MS Political Ads
allowed
Definition Free
airtime
Silence
Period
AT Allowed No legal definition – Political advertising seems to be encompassed by the term “Commercial communication” No -
BE Forbidden Content-based approach (with a timing element) – “electoral propaganda - verbal, written, audio and visual messages, intended to favorably
influence the result of a political party and its candidates and issued within four months preceding the elections.”
Yes -
BG Allowed408
No legal definition. Yes X
CY Allowed Actor-based approach - “announcement or message of any kind transmitted in return for payment or consideration by a candidate in
presidential or parliamentary elections or European Parliament elections or any other election.”
No X
CZ Forbidden No legal definition – the term “political commercial communication” is used Yes X
DE Allowed409
No legal definition – the term “Werbung politischer Art/political advertising” is used Yes -
DK Allowed410
Content-based approach – “all messages regardless of its form, which has the purpose to promote or affect the opinion of different political
questions, both at a local, national, and international level.” This definition is explicitly mentioned only for ads on TV
No -
EE Allowed No legal definition No X
EL Allowed No legal definition – the term “display of messages of political parties” is used Yes X
ES Forbidden
411
Actor-based approach (with a content element) – electoral campaign “all the lawful activities carried out by candidates, parties, federations,
coalitions or groupings in order to get votes”
Yes X
FI Allowed Actor-based approach (with a timing element) - all forms of advertising by parties, candidate or candidate’s support groups during any elections
campaign.
No -
FR Forbidden No legal definition – the term “electoral propaganda” is used Yes X
HR Allowed No legal definition (both an actor-based and content-based approach are used)– the term “ media advertising of political campaign” is used
"election campaign" - set of actions taken by election campaign participants relating to their own public representation and the public
presentation and explanation of their own election programs in order to persuade voters to vote for them.
Yes X
408
Political advertising may not be carried out outside the scope of a political campaign, running for certain set of elections. This is so due to the fact that no commercial advertisement is allowed to spread
messages that would make political influence or contain certain politically affiliated elements
409
Just during the campaign period. Political advertising online does not seem to be prohibited, but needs to be clearly marked as such and the advertiser or sponsor needs to be indicated.
410
There is a general ban for political advertisements on TV from employer organizations, unions, political parties, elected members or candidates running for election. Furthermore, three months before an
election, it is forbidden to advertise any political messages on TV.
411
Exception for periodical print media and private radio stations during the campaign period.
130
HU Allowed412
Content-based approach - political advertising is a program intended to promote or support a party, political movement or government, or to
promote their names, purposes, activities, slogans, emblems; appearing or published in a manner similar to advertising. Political advertising
means media content published in return of payment, intended to promote or support a nominating organization or an independent candidate, or
promoting their name, purpose, activity, slogan, logo, press product or cinema audio-visual content.
Yes X
IE Allowed413
No legal definition Yes X
IT Allowed Content-based approach - Political communications, radio and television political communication means the broadcasting on the radio and
television media of programs containing political opinions and evaluations. This does not apply to the broadcasting of news in information
programs.
Yes X
LT Allowed Actor and content-based approach - political advertising means ‘information disseminated by a state politician, a political party, a member of a
political party, a political campaign participant, on their behalf and / or interests in any form and by any means, paid or unpaid, during or
between political campaigns, aimed at influencing voter motivation to vote in elections, or in a referendum or the dissemination of which
promotes a state politician, a political party, a political a party member or participant in a political campaign, as well as their ideas, goals, or
program’.
Yes X
LU Allowed No legal definition Yes X
LV Allowed Actor and content-based approach - pre-election campaigning - political parties, associations of political parties, associations of voters or
deputies advertising the candidate in the media or otherwise, if it contains a direct or indirect invitation to vote for or against a political party,
association of political parties, association of voters or candidate for deputy.
Yes X414
MT Allowed415
No legal definition Yes X
NL Allowed416
No legal definition Yes -
412
Political advertising is only allowed during election campaigns or when there is an already ordered referendum.
413
There is a general ban for TV and Radio, but it is allowed for print and online.
414
On election day, it is forbidden to include the results of public opinion polls on popularity of political parties, association of political parties, voters association or individual deputy candidates in
broadcasts of electronic mass media on the election day during the course of election laid down in the law and to distribute broadcasts [in electronic mass media] led by commentaries, interviews and
reports prepared by persons who have been nominated as deputy candidates or who before the elections have made a public announcement on their participation in activities of any political party,
association of political parties or voters association. On the Election Day and the day before, it is forbidden to place pre-election campaign materials in electronic mass media radio programmes and
broadcasts, public use outdoor areas and indoor premises, publications, and authorities and capital companies as well as conduct the campaign as a paid service on public electronic communication
networks, including the Internet. However, on the Election Day it is possible to use free of charge broadcasting time, or place campaign materials in radio programmes and broadcasts of an electronic mass
medium with the exception of cases described in the paragraph above. It is also possible to use pre-election campaign materials in the discussion programmes on the Election Day, if these programmes are
not sponsored by a political candidate.
415
Advertising in broadcast media cannot have a political nature.
416
When implementing the e-Privacy Directive in the Telecommunications Act, the Dutch legislator opted for a broad interpretation of the ban on spam, which also includes (automated) political
communication on the internet (section 11.7, “unsolicited communications for commercial, ideological or charitable purposes”) – if the recipient has not given permission to do so. This prohibition also
applies to political advertisements as it includes “transmitting. Where Article 13 of the e-Privacy Directive leaves open the question of whether political advertising also falls within the definition of direct
marketing, the Telecommunications Act clearly indicates that this is the case.
131
PL Allowed417
Content-based approach definition (however, only certain types of actors are allowed to run political ads) - Election agitation (electioneering) -
public inducing or encouraging to vote in a specific manner, including, in particular, to vote for a candidate of a specific election committee. It
can be carried out by election committees or voters after they receive a written permission from an electoral representative of a committee (Art.
105, Election Code).
Election material - each published and recorded message from the election committee related to elections. Election materials should clearly
identify the election committee that they come from (Art. 109 par. 1 and 2 Election Code).
Election broadcast – a part of a radio or television broadcast that does not come from the broadcaster and constitutes a separate whole due to its
content or form (Art. 116a Election Code). The definition applies to election committee.
Yes X
PT Forbidden
418
Content-based approach - Electoral propaganda - any type of activity which aims directly at promoting candidacies (be it of candidates, of
subscribers of candidates, or of the respective political parties supporting a specific candidacy), as well as the publishing of texts or images
which express or reproduce the content of those activities”.
Yes X
RO Allowed No legal definition Yes X
SE Allowed Content-based approach - opinion advertisements (åsiktsannonsering) - messages broadcast on behalf of someone else and that aim at gaining
support for political or religious ideas, or opinions related to the labour market.
No -
SI Allowed Content-based approach - "political advertising" - any advertising during elections, referendums or related political activities in accordance with
the applicable regulations governing this area.
Yes X
SK Allowed Content-based approach - political advertising for the purposes of that law as a form of “public administration aimed to provide: a) support for a
political party, political movement, party member or movement member or candidate, possibly in their favour during an election campaign or a
referendum campaign, b) popularization of the name, brand or slogans of a political party, political movement or candidate.”
Yes X
Table 8.2. Constraints on political advertisements (Financial, Content, Advertiser)
MS
419
Financial
Limits/
Caps
Content Rules Advertiser limitations (e.g. does it have to be a
political party)
AT Yes There are no content rules for election campaigns in the Austrian electoral law. Advertisements could still be subject to subsequent
bans or limitations but according to other provisions such as criminal law, intellectual property law, etc.
No
BE Yes No information No information
417
Only Election Committees may carry out political advertising.
418
With limited exceptions. Publicity, dully identified, in periodical publications, radio broadcasting stations, social media and Internet, limited to the name, symbol, acronym of the party / coalition / group
of citizens, and to information regarding a specific event. Article 10 of the Law on Political Advertising by Commercial Means.
419
The colours in this column show if political ads are allowed (green), allowed but with strong restrictions (orange) or forbidden (red), as shown in the previous table.
132
BG Yes Materials that harm the good manners, honor and reputation of candidates is prohibited. The use of the coat of arms or the flag of the
Republic of Bulgaria or of a foreign country, as well as religious signs or images is also prohibited in the agitation materials;
No information
CY Yes Yes, the political advertisement must not constitute a negative advertisement No information
CZ Yes The election campaign must be conducted honestly and fairly, false information must not be published about the candidates,
parties, movements and coalitions.
Entity intending to conduct an electoral campaign
without the awareness of a political party,
political movement, coalition, their candidate or
independent candidate is required to register as a
“third party” before entering the election
campaign. Registration is provided by the Office
for the Supervision of the Finances of Political
Parties and Movements.
DE No Yes, NetzDG prohibits harmful contents that are exhaustively listed in § 1 III NetzDG. Such contents need to be checked by the
online provider and deleted, if illegal. Among such contents are hate speech, political extremism etc – which may be part of the
political expression (also in the form of advertising).
No information
DK No Yes, any advertisement in radio, television and on demand audio visual media services must be legal, seemly, honourable, true and
conducted with clear social responsibility.
In television and in radio considered as public
service it is illegal to send content sponsored by
employer organisations or unions or political
parties. In television it is also prohibited to
advertise for employer organisations, unions,
political parties or elected members or candidates
running for election.
EE No Yes, ‘Signs, signposts, business type names and outdoor advertisements, including outdoor advertising, installed to a public place with
the purpose of political campaigning, and the notices of a legal person shall be in Estonian’. This rule is also enforceable online. There
is also a prohibition of the use of national symbols and colour combination of the Estonian flag in a misleading manner, or providing
inaccurate information, contain denigration or discrimination on the grounds of nationality, race, age, colour, sex, language, origin,
religion, political or other beliefs, financial or social status or other circumstances, or ignoring the principle of gender equality. It is
also forbidden to use the voice or image of a person who appears as an anchor or commentator in programmes on political events or
issues or as an announcer in a news programme in ads on television. Advertisements cannot provide inaccurate information.
No information
EL Yes Advertising should not offend political beliefs. Only political party, coalition and candidate.
Candidates are banned to display promotional
messages via public and private radio and TV or
pay-TV service providers. The appearance of
candidates in public or private TV is permitted
under the following conditions: at any national
radio or TV station only one candidate is allowed
to appear during the election period. In local and
regional radio or TV stations, the candidate may
appear two times during the election period.
ES Yes During the electoral period (from the calling of the elections to their celebration), it is forbidden any act organised or financed, either
directly or indirectly, by the public authorities which contain mentions to any achievements, or that use images or expressions similar
Only political formations contesting elections can
campaign for elections
133
to those used in the campaigns of any of the candidate political entities.
FI No Advertising that offends human dignity, religious or political convictions may not be presented on tv or radio. Its content cannot
discriminate based on race, gender or citizenship. The picture or voice of individuals who regularly present or take part in news or
current events programming may not be used in advertising
No information
FR Yes “New element of electoral controversy”: In order to maintain the adversarial nature of the electoral debate, it is forbidden for any
candidate to bring to the attention of the public a new element of electoral controversy at a time such that his opponents do not
have the opportunity to respond usefully before the end of the electoral campaign.
Subsequently, broadcasting media are also banned from publishing comments by a candidate that include a new electoral argument to
which their opponents are unable to offer a considered response before the end of the election campaign
No information
HR Yes No - At certain elections (including EU elections) an Ethics Commission is being established as an ad-hoc authority to promote and
realize ethical and democratic principles in the election by making announcements and warnings. It adopts and publishes the Electoral
Code of Ethics which consists of rules of conduct for individuals and political parties in the election campaign and in the electoral
process. To some extent, within their competencies, they can issue announcement and warnings also relating to the content of the
campaign
No information
HU Yes Those who order political advertisements to be broadcast in audiovisual media shall arrange for the advertisements to be subtitled or
supplemented with sign language interpreting
No, posters may be placed or ordered by anyone.
IE Yes No regulation on the content of electoral material, including election posters, either during, or outside of, electoral campaigns. No
IT Yes No information No information
LT Yes No information There is no special regulation for third parties
LU Yes No information No information
LV Yes During the pre-election campaign it is forbidden to retransmit foreign electronic media if these include campaign materials on political
parties and their associations. In 2020, the Parliament has adopted in the first reading the ban on paid pre-elections campaigning in
languages other than Latvian (but the provision is not enforced yet)
No information
MT Yes No information Yes – The Foreign Interference Act prohibits an
alien to perform, do, hold, take part in, aid or
abet, or allow any restricted activity in Malta,
including any activity, or participation in any
activity, of a political nature or having a political
purpose at any time during the period
commencing nine months prior to the date on
which Parliament is dissolved and the date of the
publication of the results of an election.
NL No No information No information
PL Yes Several restrictions with regards to election posters Yes - The electoral committees whose candidates
have been registered shall have the right, during
the period from the 15th day before the election
134
day until the end of the election campaign, to
broadcast election programmes free of charge in
the programmes of public radio and television
broadcasters at the expense of these broadcasters.
PT Yes No information No information
RO Yes During the electoral campaign, discriminatory messages or slogans or messages inciting to hatred and intolerance are forbidden.
Electoral posters which mix the colours in a sequence which reproduces Romania’s or other state’s flag are forbidden. During the
electoral shows, it is forbidden to combine colours, graphical signs or sounds evoking the national symbols of Romania or some other
State. During electoral shows, the candidates shall have the following obligations: a) not to jeopardise the constitutional order, public
order, safety of persons and goods; b) not to make statements that could harm human dignity or public morals; c) to prove potential
accusations that could have a criminal or moral impact on another candidate; d) not to urge to hatred or discrimination for racial,
religious, nationality, sex, sexual orientation, or ethnic considerations.
No information
SE No No content rules No information
SI Yes No content rules There is no limitation.
SK Yes No information No information
135
Table 8.3 Transparency requirements on Political Ads
Member
State
Transparency rules on political
advertising?
Rules for transparency of individual political advertisements What information is to be published
(separately, afterward)
Competent authority
AT Yes, and applicable online A clear separation of advertising from editorial content. Communications Authority (KommAustria)
BE Conseil Supérieur de l’Audiovisuel de la Féderation
Wallonie-Bruxelles (Audiovisual High Council of
Wallonie-Bruxelles region).
Vlaamse Regulator voor de Media (Flemish Media
Regulator).
Medienrat der Deutschsprachigen Gemeinschaft
(German Community regulator).
BG Yes Paid political advertising during pre-election campaigns is
allowed, so long as:
• It does not include publishing or broadcasting of anonymous
materials;
• A visual, audiо or audiovisual sign that contains a label or
audible message that the material contains paid political
advertising;
Council for Electronic Media (CEM)
CY Yes, but not applicable online A clear separation of advertising from editorial content on radio
and TV.
Cyprus Radio Television Authority
CZ Yes, and implicitly applicable
online
Promotion or election agitation disseminated through
communication media must contain information about their
sponsor and processor. (The dissemination of anonymous
announcements concerning elections between their
announcement and the end of voting is banned).
Council for Radio and Television Broadcasting (Rada
pro rozhlasové a televizní vysílaní): a supervisory
body, discusses offenses and imposes sanctions
DE Yes, for radio, television, and
audiovisual media on demand
of national scope, but not for
social media.
A clear separation of advertising from editorial content. Regarding advertising in audiovisual on-demand
services the competent authority is determined by law
of each of the Länder; generally the competent
authority is the respective (local) regulator
(Landesmedienanstalt).
German Press Council for the press
DK Yes, but not applicable online For print: the poster must bear the name, email and phone
number of the person who is responsible for placing it.
For audiovisual (radio, TV, on-demand video): A clear
The Danish Press Council,
Radio and Television Board, Danish Agency for
Culture, Media Division
136
Member
State
Transparency rules on political
advertising?
Rules for transparency of individual political advertisements What information is to be published
(separately, afterward)
Competent authority
separation of advertising from editorial content. It must be
clearly stated in the advertisement who is the advertiser.
EE Estonian Consumer Protection and Technical
Regulatory Authority (ECTRA) (Tarbijakaite ja
tehnilise järelevalve amet, TTJA)
EL Yes,420
but not applicable
online
A clear separation of advertising from editorial content (ads
distinguishable from the rest of the programme by labelling)
The expenses of the political
parties and the candidates and
elected members of the Hellenic
Parliament and of the European
Parliament, are published on an
official website, which is
maintained by a Parliamentary
Service supporting the work of the
Audit Committee
National Council for Radio and Television
Others421
ES Yes, and specific rules for
online
Art. 58 bis LOREG: The dissemination of electoral propaganda
by electronic means or messaging systems and the engagement
of electoral propaganda on social media or equivalent media
shall prominently identify their electoral nature.
The electoral program Electoral Administration
FI Yes, and applicable online,
with specific rules for
targeting
The candidate, the candidate support group and any other entity
working exclusively to support the candidate must ensure that
the paid advertisement included in or intended to support the
election campaign indicates the payer of the advertisement.
However, the name of an individual may not be disclosed
without his/her express consent if the value of the
advertisement paid by him/her is less than EUR 800 in
An election funding disclosure (to
be submitted by the political parties
to the NAOF within two months
of the confirmation of the election
results), breaking down the election
campaign costs, separated between
the various kinds of expenditure or
The National Audit Office (NAOF) oversees election
campaign and political party funding and receives and
publishes documents specified in the Act on Political
Parties and the Act on a Candidate's Election Funding.
Office of the Data Protection Ombudsman (in relation
to Data Protection Act). The NAOF oversees that
elections funding disclosures have all been submitted
420
A) Presidential Decree 26/2012 "Codification in a single text of the provisions of the legislation for the election of deputies" (A’ 57), as in force.
B) Law 3023/2003 “Financing of political parties by the state. Revenues and expenses, promotion, publicity and control of the finances of the political parties and the candidates for MPs” (A’ 146), as other
supplementary laws apply.
C) Law 2328/1995 "Legal status of private television and local radio, regulation of radio and television market issues and other provisions" (A’ 159), as in force.
D) Presidential Decree 77/2003 "Code of Conduct for news and other journalistic and political programme" (A’ 75).
421
A) The Audit Committee,
B) The National Council for Radio and Television (NCRT), which is an Independent Authority. The NCRT gives an opinion on the ministerial decision on the broadcasting of pre-election messages of the
political parties by the radio and television, on the appearances of the candidates for parliament and the appointed representatives of the political parties by the radio and television media in order to prevent
any indirect promotion. It also controls the broadcasting market in the time before the pre-elections period.
C) The Inter-Party Election Committee, which is a cross-party body and submits proposals for the proper implementation of the regulatory framework
137
Member
State
Transparency rules on political
advertising?
Rules for transparency of individual political advertisements What information is to be published
(separately, afterward)
Competent authority
municipal elections or less than EUR 1 500 in parliamentary,
European or presidential elections. (Act on a Candidate’s
Election Funding (273/2009))
Persons subject to advertising must be informed of why
information is targeted at them, who is responsible for
advertising and how they can exercise their data protection
rights
advertising media. and they contain the right information and no errors.
FR Yes, and specific rules for
online
Further, there is soft law422
specifying the kind of
information to be provided to
combat the dissemination of
false information.
The Electoral Code and the Law to counter information
manipulation impose transparency requirements.
3 months before the first day of the month of elections of
national character (e.g. EU, or presidential) and until the results
are known, online platform operators have transparency
obligations relating to the promotion of information content
linked to a debate of general interest. As such, online platforms
and intermediaries whose number of connections on French
territory exceeds 5 million unique visitors per month on average
per year must provide the users with fair, clear and transparent
information on the identity of the private person or the
company, which pays to the platform for the promotion of
information content related to a debate of general interest.
Online platforms and intermediaries must also make public the
amount of the remuneration received for the promotion of
such content when the amount exceeds a specific threshold
(>100 € per content). They should also provide information as to
The information required of online
platforms must be made available
to a public in a register, regularly
updated during the campaigning
period.
Supreme Audiovisual Council (Conseil Supérieur de
l'Audiovisuel, CSA)
422
The Electoral Code provides for the application for interim measures for the cessation of the dissemination of false information on communication services to the public online, when they are likely to
undermine the integrity of elections. Indeed, Article 11 of Law of 22 December 2018 to counter information manipulation specifies the duty of cooperation of online platforms in the first against the
dissemination of false information. Consequently, the CSA can indeed issue recommendations towards online platforms to improve the effort to combat the propagation of false information that is likely to
disturb public order or to affect the sincerity of the ballot. As such, the CSA issued its first recommendation on 15 May 2019 of the CSA to online platform operators as part of the duty to cooperate in the
fight against the dissemination of false information, the CSA monitors the obligations on online platforms operators, which can involve "informing users about the nature, origin and methods of
disseminating content and the identity of persons paying remuneration in return for the promotion of information content". This recommendation also suggests how each of the possible measures should be
implemented: ‘transparency of algorithms’; ‘promotion of content from press companies and news agencies and from audiovisual communication services’; ‘combatting accounts disseminating false
information on a massive scale’; ‘information of users on the nature, origin and modalities for dissemination of content, and the identity of individuals providing remuneration in return for the promotion of
information content’; ‘promote media and information literacy’. As regards the monitoring of the implementation of these actions by online platforms, according to Article 11 of the Law of 22 December
2018 Platforms must provide an annual declaration to the CSA of the methods of implementation of each of the measures taken pursuant to Article 11. Said article is reported below:
138
Member
State
Transparency rules on political
advertising?
Rules for transparency of individual political advertisements What information is to be published
(separately, afterward)
Competent authority
the use of the individual’s personal data in the context of the
specific promotional material.
Online Platforms should distinguish sponsored content from the
rest, and should specify the methods of distribution of the
content, indicating as far as possible the conditions of their
publication such as the existence of financial compensation, the
extent of the distribution (number of views, type of target
population, etc.), and whether they were generated
automatically or not.
HR Yes423
, and applicable online A report of donations (incl.
donated services) and of election
campaign costs to be published 7
days prior to the elections424
, and in
particular containing information
for each expenditure on the:
purpose of cost, the number of
media services contracted and
performed, name of supplier /
recipient, name of the social
network, OIB of the supplier,
address of the supplier / recipient,
date / period of use, invoice
payment date, amount (amount paid
and the market value of the product
or service).
Additionally, operators providing
media advertising services for
election campaigns submit to the
State Electoral Commission their
schedules of rates charged for
State Audit Office
State Electoral Commission
Ministry of Finance
State Electoral Commission of the Republic of Croatia
(with respect to financing supervision of election
campaigns of election participants)
No investigatory powers.
The Act – Article 94: the authorised prosecutor shall be
the State Attorney
423
1. Act on Financing Political Activities, Election Campaigns and Referendums (Official Gazette 29/19 and 98/19). 2. Ordinance on the manner of keeping records, issuing certificates and entering
reports on financing political activities, election campaigns and referendums in the information system for financing supervision (Official Gazette 71/19)
424
Report of donations and election campaign costs: Article 11.
139
Member
State
Transparency rules on political
advertising?
Rules for transparency of individual political advertisements What information is to be published
(separately, afterward)
Competent authority
election campaign advertising and
the contracts they have concluded
with electoral participants in
relation to their election campaigns,
and they publish them on their
websites from the election
campaign start date
HU Yes, but not applicable online For political ads in press products:
Political advertisements published in press products shall be
immediately recognizable and distinct from other media
contents. The name, address or seat of the customer ordering
the advertisement shall be indicated on the advertisement.
For posters:
Name and address of the publisher and name of the person
responsible for publishing shall be indicated on the poster.
Each candidate and nominating
organisation shall publish in the
Hungarian Gazette, within 60 days
of the parliamentary election, the
amount, source and method of use
of public and other funds and
financial support spent on the
election.
National Media and Infocommunications Authority
IE Yes, but not applicable online
Advertisements that are
directed towards a political
end are otherwise prohibited.
Exemptions are provided for
advertisements broadcast at
the request of a Referendum
Commission (an independent
body established under statute
to explain the subject matter
of a referendum, to promote
public awareness of a
referendum and to encourage
the electorate to vote) and the
broadcasting of a party
political broadcast provided
that a broadcaster does not, in
the allocation of time for such
broadcasts, give an unfair
preference to any political
party.
Electoral law (1992) provides that every notice, bill, poster or
similar document used for electoral purposes is required to bear
upon its face the name and address of the printer and
publisher thereof.
Printers’ and publishers’ failure to comply with these
requirements is an offence under the law (this is also applicable
to anyone who causes the printing, publishing or posting).
Broadcast:
Broadcasting Authority of Ireland.
Print: An Garda Síochána.
Advertising in print media is subject to the self-
regulatory code of the Advertising Standards Authority
of Ireland (ASAI). However, political advertising is not
within the scope of this code, and therefore the ASAI
does not consider any complaints in relation to this
category of advertising.
140
Member
State
Transparency rules on political
advertising?
Rules for transparency of individual political advertisements What information is to be published
(separately, afterward)
Competent authority
IT Yes (for print), and soft
measures for their application
online (but not legally
enforceable425
)
Communications Authority (Autrità per le Garanzie
nelle Comunicazioni – AGCOM)
LT Yes, and applicable online All political ads (irrespective of the means of distribution,
including online) must be marked indicating that it is political
advertising, indicating the source of funding (the name of the
individual political campaigner and their campaign account, or
state budget where applicable), the order number, the identity
of the printer, producer or disseminator. (Also requirements
on the means/formalities of such labelling such as font size, or
localisation within an audio political ad).
Political parties, participants of a political campaign, public
information producers and disseminators are obliged to declare
all political advertising.
Upon reaching the end of the
election campaign, the political
candidates have to submit the
records of their expenditures to the
Central Electoral Commission for
control.
Radio and Television Commission of Lithuania –
LRTK
Radio and Television Commission of Lithuania –
LRTK
The Central Electoral Commission investigates
complaints on non-labeled political ads online.
LU Yes, for audiovisual Audiovisual commercial rules require a clear separation of
advertising from editorial content. (This is partly applicable
online: in the absence of a specific regime for political ads, some
online audiovisual political ads are subject to the provisions for
commercial ads.426
)
/ Independent Audiovisual Authority of Luxembourg
(Autorité luxembourgeoise indépendante de
l’audiovisuel) (ALIA)
LV Yes, and applicable online A full disclosure of the agreement between the campaigner and
the service provider.
All political ads shall include the name of the sponsor and a
clear and unambiguous indication that it is a political ad.
When distributing printed political ads, the relevant edition shall
in addition indicate the number of copies of the edition.
Service providers shall keep records
of the political ad campaign
(expenses), identifying each
campaigner or recipient of post
services, amount of funds acquired
for the placement of the relevant
advertising material or service, as
well as persons who have entered
National Electronic Mass Media Council
425
The regulator and competition authority for the communication industries in Italy (AGCOM) indicated the desirability of the transparency rules for political advertising in print to be applied online.
AGCOM, Guidelines for equal access to online platforms during the 2018 parliamentary election campaign (2018). https://www.agcom.it/documents/10179/9478149/Documento+generico+01-02-
2018/45429524-3f31-4195-bf46-4f2863af0ff6?version=1.0 These non-binding guidelines are reported not to have been followed by the parties in the 2018 elections, see Chiusi & Agosti, The Influence
Industry Personal Data and Political Influence in Italy (2018), p5. https://cdn.ttc.io/s/ourdataourselves.tacticaltech.org/ttc-influence-industry-italy.pdf
426
ALIA, Décision DEC0013/2020-P003/2019 du 6 juillet 2020 du Conseil d’administration de l’Autorité luxembourgeoise indépendante de l’audiovisuel concernant une plainte à l’encontre du service
RTL 4.
141
Member
State
Transparency rules on political
advertising?
Rules for transparency of individual political advertisements What information is to be published
(separately, afterward)
Competent authority
into the relevant contract on behalf
of the campaigner (the
commissioner of the ad).
Service providers and campaigners
shall send a notification to the
Corruption Prevention and
Combating Bureau on the
placement of pre-election campaign
materials or provision of postal
services not later than within three
working days after entering into the
contract. The information shall
include:
1) the date and number of the
contract;
2) information on contracting
parties:
a) the name, registration number
and registered address of the entity
placing the pre-election campaign
material (service provider) in case
of a legal person, otherwise the
given name, surname, personal
identity number (if there is none -
the date of birth, personal
identification document number and
date of issue, country and authority
that has issued the document) and
the address of the declared place of
residence of the person placing the
pre-election campaign material;
3) information regarding the
placement of pre-election campaign
material:
a) the date, (where applicable) the
size, the broadcasting time and
duration of the placement of each
142
Member
State
Transparency rules on political
advertising?
Rules for transparency of individual political advertisements What information is to be published
(separately, afterward)
Competent authority
pre-election campaign material,
including its removal date;
5) the contract sum (with VAT);
6) the discounts applied and
justification thereof, as well as the
contract sum (with VAT), which
would have been effected in case if
discounts were not applied;
7) the procedures and terms for the
payment of contract sum;
8) other information which is
considered essential by the entity
placing the pre-election campaign
material (service provider).
MT No / / Broadcasting Authority Malta
NL No, but:
Soft law for print427
Soft law for online428
Commissariaat voor de Media
PL Yes, and applicable online All advertisements have to be easily recognizable as
advertisements and should clearly identify the election
committee from which they originate.
For print: the editor is responsible for indicating the source of the
election materials and who financed it
Election committees are obliged to
submit financial reports including
information on the amounts they
spend on advertising, broken down
into services provided by
newspapers and periodicals, radio,
television, poster carriers, and
Internet advertising.
National Broadcasting Council (Krajowa Rada
Radiofonii i Telewizji)
National Electoral Commission
PT No / Every campaign expense needs to
be duly identified and is subject to
judicial oversight post-election
The Portuguese Regulatory Authority for the Media
(ERC – Entidade Reguladora para a Comunicação
Social)
RO Yes, but not applicable online Electoral competitors shall communicate, for all the printed, Within 15 days from the election For the printed electoral propaganda materials:
427
Advertising Code, amended 2020, (Stichting Reclame Code) https://www.reclamecode.nl/wp-content/uploads/2018/08/SRC_Code_Opmaak-CodeJaarverslag_2020_Compleet.pdf
428
Advertising Code for Social Media & Influencer Marketing, 2014, amended 2019 (Reclamecode Social Media & Influencer Marketing) https://www.reclamecode.nl/nrc/reclamecode-social-media-rsm/
as well as the Dutch Code of Conduct Transparency Online Political Advertisements, 2021 https://www.rijksoverheid.nl/documenten/richtlijnen/2021/02/09/nederlandse-gedragscode-transparantie-online-
politieke-advertenties
143
Member
State
Transparency rules on political
advertising?
Rules for transparency of individual political advertisements What information is to be published
(separately, afterward)
Competent authority
(except one, on post-elections
reporting, which encompasses
online expenditures)
audio or video electoral propaganda materials the following
details:
a) the independent candidate’s name, the name of the political
party, of the electoral alliance/political alliance of which it forms
part, or of the organisation of citizens belonging to national
minorities, as applicable;
b) the name of the economic operator who made them;
c) the unique identification number ascribed by the Permanent
Electoral Authority;
d) for print: the print run, for the electoral posters and the
booklets, leaflets and other printed materials in the same
category.
date, electoral competitors shall
submit to the Permanent Electoral
Authority, in written and electronic
format, the statement on the number
of electoral propaganda materials
produced and used, broken down by
category.
Within 30 days of the end of the
electoral campaign, electoral
competitors shall transmit to the
Permanent Electoral Authority
information on the description of
the online electoral propaganda
materials, their production, period
and broadcasting space.
Permanent Electoral Authority
Electoral bureaus
For the audio or video electoral propaganda materials:
National Audiovisual Council (Consiliul National al
Audiovizualului)
Investigatory powers
SE No / / The Swedish Press and Broadcasting Authorities
(Myndigheten för press, radio och tv)
SI Yes, and implicitly applicable
online
Media publishers shall publish the name of the customer
commissioning the publication of election advertising content.
Bulletins, catalogues and other information publishing media,
posters, pamphlets, banners and video pages without live images,
and telecommunications messages containing advertising content
for an election campaign shall contain the name of the customer
commissioning the publication of such content. Posters shall also
bear a serial number (Election and Referendum Campaign Act).
Commercial advertising must be clearly recognisable and
visually separated from the mass medium's other programmes.
Advertisements published free of charge must be specially
designated as such (Mass Media Act)
/ Culture and Media Inspectorate (Ministry of Culture)
SK Yes, and implicitly applicable
online
Everyone who conducts an election campaign is obliged to
ensure that broadcast political advertising, published paid
advertising, published election posters and all other methods of
conducting an election campaign contain information about the
client and supplier (incl. name, surname and municipality of
residence in case of a natural person, and the name, registered
office and identification number of the organisation in case of
a legal person). The same applies to the presentation of pre-
/ Council for Broadcasting and Retransmission of the
Slovak Republic
144
Member
State
Transparency rules on political
advertising?
Rules for transparency of individual political advertisements What information is to be published
(separately, afterward)
Competent authority
election and public opinion polls. If the broadcasting of political
advertising on radio last less than 30 seconds, providing the
name of the client (e.g. political party) is sufficient.
Table 8.4 Private sector political ads policies - VLOPS
Obligation/VLOP COP signatory
(“?” Indicates where policies information is inconclusive)
FB/ Instagram Google/ Youtube Snap
Ad repository (maintenance) x x x
Ad repository (publication)
DSA-like requirements, including:
 Content of the advertisement
x x ?
 Natural or legal person on whose behalf the advertisement is displayed
x x x
 Period during which the advertisement was displayed
x x x
 Whether the advertisement was intended to be displayed specifically to one or more particular groups of recipients of
the service and if so, the main parameters used for that purpose
x x
 Total number of recipients of the service reached and, where applicable, aggregate numbers for the group or groups of
recipients to whom the advertisement was targeted specifically
x
Amount spent and financial data x x
Banner ads included ? ? ?
145
Labelling of ads (visible to individuals through the ads themselves)
DSA-like requirements, including:
 That the information displayed is an advertisement
x x
 Natural or legal person on whose behalf the advertisement is displayed
x x
 Meaningful information about the main parameters used to determine the recipient.
?
Name of any associated political campaign (plus registration information where relevant) ?
Self-certification as political ad not associated with political campaign x
Due diligence/”know your client” data (retained from client)
DSA requirements, including: x
 Name, address, telephone number and email address of economic operator
 A copy of the identification document of the economic operator [advertiser]
Where the advertiser is registered as a political campaign or as a political candidate, the register in which the
advertiser is registered and its registration number or equivalent means of identification in that register;
Self-certification by the advertiser that the advertising being placed complies with the applicable national rules.
Self-certification by the advertiser that the advertising being placed, and the means by which it was prepared and
disseminated, complies with the GDPR.
Restrictions related to country of establishment of ad sponsor x (MS) x (EU) x (MS)
146
Twitter bans political ads on the basis of the following definition:
“Twitter globally prohibits the promotion of political content. We have made this decision based on our belief that political message reach should be
earned, not bought. Ads that contain references to political content, including appeals for votes, solicitations of financial support, and advocacy
for or against any of the above-listed types of political content, are prohibited under this policy. We also do not allow ads of any type by
candidates, political parties, or elected or appointed government officials. News publishers who meet our exemption criteria may run ads that
reference political content and/or prohibited advertisers under our political content policy, but may not include advocacy for or against those topics or
advertisers”429
TikTok bans political ads on the basis of the following definition:
“We have chosen not to allow political ads on TikTok. Any paid ads that come into the community need to fit the standards for our platform, and the
nature of paid political ads is not something we believe fits the TikTok platform experience. To that end, we will not allow paid ads that promote or
oppose a candidate, current leader, political party or group, or issue at the federal, state, or local level – including election-related ads, advocacy
ads, or issue ads.”430
429
https://business.twitter.com/en/help/ads-policies/ads-content-policies/political-content.html
430
https://newsroom.tiktok.com/en-us/understanding-our-policies-around-paid-ads
147
Table 8.5: Forthcoming national initiatives
This table lists the obligations foreseen under the IE and NL forthcoming proposals regulating political ads, highlighting the overlap when there is any. It
distinguishes between obligations for providers (economic actors) and obligations for buyers of political ads (political parties). It also puts side-by-side
the NL proposal and NL code of conduct, because of their complementary character. The IE proposal is complete and in the later stages, whereas the NL
proposal is currently only an announced forthcoming initiative, with little publicly-available information as to its provisions; a blank cell in the IE column
(and NL Code of Conduct) means there is no applicable provision, whereas a blank cell in NL legislative column indicates lack of data.
Irish legislative proposal431
Dutch legislative
proposal432
Dutch Code of Conduct Transparency for
Online Political Advertisements433
(soft law)
Definition of political advertisement “online political advertisement” means any form of communication
in a digital format commissioned for political purposes for
placement, display or promotion on an online platform during an
electoral period and for which a payment is made to the online
platform”
“political purpose” (Electoral Act, 2001) includes the direct and
indirect promotion of, opposition to, and presentation of the
interests, objectives, policies and comments of a political actor or
of a third party with regard to a political campaign, referendum or
election, and otherwise includes the act of influencing the outcome
of the election, referendum or campaign.
No definition
Definition of platform “online platform” means any public-facing website, web
application, or digital application, including a social media
network, advertising network, search engine or the seller of an
online political advertisement, that
(i) has 10,000 or more unique monthly visitors or users in the State
for a majority of months during the 12 calendar months
immediately preceding the date of the making of a polling day
order for an election or a referendum, and (ii) receives payment for
431
General Scheme of the Electoral Reform Bill 2020, pp233-261 (08/01/2021). https://www.gov.ie/en/publication/34cf6-general-scheme-of-the-electoral-reform-bill-2020/
432
Wet op de Politieke Partijen (WPP) (“the law on political parties”) (07/12/2020). https://www.parlement.com/id/vlboezk3ftm8/wet_op_de_politieke_partijen. The document mainly relied on is:
Ministerie van Binnenlandse Zaken en Koninkrijksrelaties, Notitie: Regulering van politieke campagnes (27 maart 2019). Accessed from https://www.rijksoverheid.nl/documenten/wob-
verzoeken/2021/03/22/besluit-op-wob-verzoek-over-transparantie-van-politieke-advertenties. Further information was found in: Voortgang voorbereiding Wet op de politieke partijen, Brief van de Minister
van binnenlandse zaken en koninkrijksrelaties Aan de Voorzitter van de Tweede Kamer der Staten-Generaal (11/06/2020).
https://www.tweedekamer.nl/kamerstukken/brieven_regering/detail?id=2020Z10803&did=2020D23378
433
Dutch Code of Conduct Transparency for Online Political Advertisements (09/02/2021). https://www.idea.int/sites/default/files/news/news-pdfs/Dutch-Code-of-Conduct-transparency-online-political-
advertisements-EN.pdf
148
the placement, display or promotion of an online political
advertisement on that website, application, social media network,
advertising network or search engine
Definition of look-alike targeting “look alike targeting” means a targeting method that takes an
existing target audience and uses machine learning methods to
identify new persons who have similar characteristics or are
engaged in similar activities on an online platform or platforms as
the case may be
Definition of broadly-conceived ‘digital
political instruments’
The concept of “digital political instruments” should be
formulated in such a way as to avoid the need to adapt the
HRF every time new technologies enter the market.
[Therefore includes the instruments/tools of data analysis,
micro-targeting and other digital technologies used to
profile, reach and provide information to individuals.]
Scope of application The law would be applicable
 during an electoral period (30 days before polling)
 when the ad is commissioned (bought) by a political
actor or by a person/entity seeking to influence the
outcome of an election or a referendum held in
Ireland
Concerns Dutch political parties
only.
A different law may be made
for online political ads by other
actors.
Not particularly linked to any specific period such as
elections.
For online platforms and political parties/candidates
only, and only signatories of the Code.
Covers:
 primarily paid online political ads
 partly unpaid political reporting
Obligations for platforms
Policy on political
ads
On the procedures
around ads
Commitment to have clear and transparent rules for
placing and removing messages and advertisements.
Commitment to develop and enforce platform policies on
the safety and privacy of users and electoral integrity
in relation to online political advertising.
On the content of the
ads
Commitment to remove political advertisements or any
content that incite violence or hate speech within the
shortest possible period of time once identified
Commitment to consider countering any inaccurate
information on the electoral process, such as voter,
voting process and polling station information, in case
such information is identified [including in an ad].
Identifiability of the ad as an ad To have a button, icon, tab, or hyperlink on the ad, with the text
“Political Advert”, in a position where the viewer will readily see
it, linking to a page clearly displaying a transparency notice
(which is to be maintained with real-time info).
149
Ad transparency
requirements regarding:
The ad buyer’s
details
name, postal address, email address and, where applicable, the
website address of the buyer
The law will mandate
transparency on who paid for
an ad
Commitment to develop and enforce relevant
transparency mechanisms
Commitment to report adequately and clearly on “paid
for by”
Targeting  confirmation of whether micro-targeting was applied
in the placement, display and promotion of the online
political advertisement and, where applicable, a
description of the criteria used
 confirmation of whether the target audience contains a
look alike targeting list and, where applicable, a
description of the characteristics of the target
audience
Transparency on profiling
Payment the amount paid for the online political advertisement, including
the amounts paid for content creation and for online placement,
display and promotion
Commitment to report adequately and clearly on spend
and spending range
Time the number of days during which the online political
advertisement will be
placed, displayed and promoted on the online platform and the
start and end date of the online advertising campaign
Reach the number of user impressions that the online political
advertisement is intended to reach, and the number of active
engagements by user
Commitment to establish transparency on reach
Online ad archive /library Yes
 Not a live archive: the ads and their transparency
notice are to be transferred in the archive at the
expiration of the period of the online advertising
campaign, retained for min. 7 years.
 (No standards are specified on format to allow easy
comparison between platforms.)
 Access is public, for the public interest and for the
purpose of research
 The archive is to be transferred to the Electoral
Commission if the platform is dissolved.
Commitment to provide relevant advertiser and
advertisement details in publicly available libraries
with easily downloadable and comparable data.
Signatories to the code are invited to collaborate with
researchers on political advertising libraries and make
available any additional data to support such research, as
far as it does not concern confidential information.
Identity verification measures Obligation to appoint a responsible person for the purposes of
identifying and verifying the information and documentation
provided by the buyer
Commitment to require and enforce registration by and
verification of political advertisers.
Lack of, or inadequate cooperation from the
ad buyer
Not to provide the service sought by the buyer when unable to
obtain the required information (for transparency notice) and
documentation (for identification of buyer)
Customer due diligence monitor all dealings with a buyer by scrutinising transactions
and the source of funds for those transactions, to determine
whether or not there might be a breach of this law
Undue foreign influence No person residing outside of the State, other than [an Irish The payment or influence of Commitment to ban cross-border political
150
resident, a corporate body based in Ireland, or a EUPP], may,
either directly or indirectly, commission an online political
advertisement.
Ensure that there is no undue foreign influence:
The responsible person at the platform shall take reasonable steps
to determine whether or not the buyer of an online political
advertisement, or a person connected with the buyer, is residing in
a place outside of the State – in which case the responsible person
shall (a) obtain approval from their senior management, and (b)
determine the source of the funds.
(digital) political campaigns
from outside the EU (excluding
contributions from voters residing
there) is prohibited
advertisements from outside the EU.
Commitment to refuse direct purchases of political
advertisements by foreign actors in support of the
political party; refrain from receiving foreign funding
to pay for online political advertisements, other than from
party members living abroad.
Post-election review Consider conducting a post-election review on the Dutch
electoral campaign and compliance with the
code of conduct; consider the possibility of publishing a
report in case there have been any relevant
incidents in relation to the Dutch elections and the
correlated platform actions
Obligations on buyers of online political ads
Transparency to provide the information for the transparency notice (non-
compliance is an offence)
The system of disclosure is the
same as for the disclosure of the
financial reports.
Parties must be transparent on
the amounts that they have paid
above a certain threshold.
Parties must report on the tools
(e.g. targeting) used/purchased;
they should report before the
elections on the databases and
search criteria they have used
and how much they have paid
for.
Commitment to refrain from contracting or engaging
intermediaries to place political ads without attribution to
the party.
Commitment to strictly adhere to online platforms’
advertisement policies and mechanisms
Transparency obligations on political information for
other [non-political] organisations should and will be
regulated by other laws (e.g. the Criminal Code)
Online ad archive /library Political parties are to upload the
ads they run and the relevant
information into an archive
hosted by the supervisory
authority.
Cooperation with the platforms To comply with requests for information/documentation re- the
identity of the buyer and the lack of foreign interference (non-
compliance is an offence)
Commitment to provide faithful information for
registration and verification processes, and to respond
to inquiries regarding ad authorization
and verification processes.
Restrictions on targeting No Transparency on profiling  Maintain ethical limits to linking different
data sets and uploading them to online
platforms for the purpose of microtargeting
 Refrain from psychological profiling for
151
targeting purposes
Undue foreign influence No active obligations for political parties (only for platforms) The payment or influence of
(digital) political campaigns
from outside the EU (excluding
contributions from voters residing
there) is prohibited
Security requirements Minimum requirements for
information security for political
parties. This is subject to the
condition that the costs do not
constitute a threshold to
participate in the elections.
Authorities
Supervision and enforcement Set-up of the (independent) Electoral Commission which may
take any investigative actions as may be required to ensure that the
Act’s provisions are being complied with.
Its powers include: access to premises (with consent or a warrant),
inspection, seizing of material, serving compliance notices
The law will set up an
independent supervisory
authority.
This authority will host the ad
library where political parties
will have to upload the ads they
run and relevant information.
Commitment to respond quickly and accurately
to enquiries about placement and removal of
messages
and advertisements by competent authorities and
political parties.
Participation is voluntary and cannot replace
existing
or future legislation and regulations. Compliance is
therefore not enforceable
Penalties Fines and/or imprisonment
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Annex 8: Presentation and analysis of EU acquis
Although there is no overarching legislative framework covering online targeted advertising
at the EU level, different legislative measures apply to advertising (including targeted
advertising) and provide certain rights to individuals. The current European legislative
framework is complex and only addresses certain aspects of online targeted advertising,
though, and sometimes in an indirect manner.
These measures are often either only partly applicable to online political advertising, or
exclude the latter from their scope altogether; this may be because their scope is restricted to
a specific medium, such as audiovisual material, or because the scope is restricted to
advertising of a commercial nature. This body of relevant EU rules is presented below,434
and
includes the (forthcoming) DSA, the (forthcoming) DMA, the ePrivacy Directive435
, the
GDPR436
, the E-Commerce Directive437
, the Audiovisual Media Services Directive438
, the
434
A great deal has been taken and adapted from the following study commissioned by IMCO: Fourberg et al. (2021),
“Online advertising, the impact of targeted advertising on advertisers, market access and consumer choice.”
https://op.europa.eu/en/publication-detail/-/publication/9b3cb8b5-d55b-11eb-895a-01aa75ed71a1/language-en/format-
PDF/source-217130651
435
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of
personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic
communications): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02002L0058-20091219
436
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation-“GDPR”): https://eur-lex.europa.eu/eli/reg/2016/679/oj
437
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of
information society services, in particular electronic commerce, in the Internal Market
http://data.europa.eu/eli/dir/2000/31/oj
438
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain
provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual
media services (Audiovisual Media Services Directive) https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A02010L0013-20181218
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Unfair Commercial Practices Directive439
, the Consumer Rights Directive440
, the Misleading
and Comparative Advertising Directive441
, the Directive on services in the internal market442
and the Platform-to-Business Regulation443
. There is also relevant soft law in the form of the
Code of Practice on Disinformation. Also, this initiative is parallel to the one on the funding
of EUPPs and European political foundations (see point 8.13 below)444
.
The transparency in political ads initiative in particular overlaps with the DSA and with
some of the commitments under the Code of Practice on Disinformation, insofar as it stems
from, or strengthens elements of these two; the overlap is mapped in tables 2 and 3 below.
Each piece of legislation is narratively described below, with a focus on the provisions most
relevant to political advertising. The governance model under each is described. Where
relevant, the space for action under the present initiative is also discussed, i.e. the relation
between the two, as well as the gaps the latter could fill.
It is good to note already that even those laws that only regulate ads of a commercial nature
remain relevant for the transparency in political ads initiative. This is particularly the case
because some commercial ads are also political ads (such as when an economic actor
promotes its services while connecting them to a political issue). Rules for commercial
advertising are also relevant for the status quo regarding political ads, insofar as some
authorities may decide – like the Luxembourgish audiovisual authority (ALIA) does445
– that,
in the absence of a specific regime for online political ads, the rules for commercial ads
apply446
. However, even where these rules apply, the analysis below shows that there is space
for action under the transparency in political ads initiative, because even under consumer
protection rules, it emerges that there is no specific obligation to inform consumers in a clear
and comprehensible manner that they are facing targeted advertising, or regarding the
parameters used to determine the recipient or the content of the advertising (rules are
currently limited to ranking and personalised pricing). Only insofar as certain advertising
practices may be seen as a form of ranking can the information duties now contained in the
UCPD, the CRD and in the P2B Regulation be seen as relevant.
439
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-
consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC,
98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the
European Parliament and of the Council (‘Unfair Commercial Practices Directive’) https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:02005L0029-20220528&from=EN
440
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending
Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing
Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=celex:32011L0083
441
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and
comparative advertising https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114.
442
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal
market. http://data.europa.eu/eli/dir/2006/123/oj
443
Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and
transparency for business users of online intermediation services https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX:32019R1150
444
Regulation (EU, Euratom) No 1141/2014 of the European Parliament and of the Council of 22 October 2014 on the
statute and funding of European political parties and European political foundations
445
ALIA, Décision DEC0013/2020-P003/2019 du 6 juillet 2020 du Conseil d’administration de l’Autorité luxembourgeoise
indépendante de l’audiovisuel concernant une plainte à l’encontre du service RTL 4.
446
The AVMSD generally does not cover political ads.
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Other legislation (such as the GDPR) applies to political ads and their targeting, but not in a
comprehensive way: the GDPR, for instance, only addresses elements relating to the
processing of personal data. Although recent proposals by the European Commission (the
DSA, DMA) will fill some of the gaps in this existing framework, the need for horizontal
legislation on political ads remains.
Furthermore, regarding the governance of the different applicable rules, it emerges from the
analysis below that a variety of authorities may be competent to oversee, supervise and
enforce the application of existing rules for political advertising (see Table 4 below).
However, there is no authority that can deal with a problematic political ad in its entirety,
because each can scrutinise only a different aspect of political ads – one being the data
protection angle and another being the electoral rules angle, for instance. Each authority can
only tackle one aspect of any given problematic political ad – whereas that ad may be
problematic on many levels – and there is little structured cooperation foreseen between
relevant authorities beyond certain multilateral and EU level cooperation groups. Finally,
another governance-related issue is that, if we compare what the applicable EU-level rules
cover, we see that they provide a certain level of governance for some areas, but not for all
areas that are in scope of the present initiative. The main available structures are ERGA,
which provides coordination for the implementation of the AVMSD (which however does not
foresee a task for national authorities to oversee political ads), and the European Cooperation
Network on Elections which was established as part of the Electoral package. Neither are
able to mandate coordination. The coordination mechanism under the GDPR, in turn,
includes the One-Stop-Shop and lead authorities, cooperation among DPAs and under the
EDPB, as well as a dispute-resolution mechanism; it is more effective, though it, too, faces
structural issues.
It should be observed that the internal market options put forward in the transparency
in political ads initiative are intended to complement and build upon existing legislation
applicable to providers of political advertising services, and to be without prejudice to
the relevant sectoral and market legislation applicable to offline and online political
advertising and services. In contrast, the options concerning political parties are prepared in
close alignment with the parallel initiative to reform the regulation on the statute and funding
of EUPP and foundations. The latter rules are mapped separately, at the end of Annex 9.
9.1. The Digital Services Act (DSA proposal)447
The DSA is a horizontal instrument aimed at establishing the essential responsibility of
information society services generally in the internal market, and clarifies their
responsibilities as intermediaries in light of national prohibitions of hate speech, terrorist
content etc. The actors covered by the DSA are technical intermediaries (such as internet
access providers), hosting service providers (which include advertising servers), online
platforms (that disseminate content to the public) as well as very large online platforms
(VLOPs) that have more than 45 million monthly active users in the EU. The DSA’s rules
differ according to the size of the economic actors, with VLOPs being subject to extra
obligations.
447
Proposal for a Regulation of the European Parliament and of the Council on a Single Market For Digital Services (Digital
Services Act) and amending Directive 2000/31/EC https://eur-lex.europa.eu/legal-
content/en/TXT/?qid=1608117147218&uri=COM%3A2020%3A825%3AFIN
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A subset of the DSA’s provisions address online targeting by this sector. The rules are aimed
to make sure that users receive more information to help them make informed decisions
online, and better protect their rights. This added transparency is also intended to enable the
scrutiny by authorities and vetted researchers on how advertisements are displayed and how
they are targeted. Article 2(d) of the DSA defines advertisement in the online domain as
“information designed to promote the message of a legal or natural person, irrespective of
whether to achieve commercial or non-commercial purposes, and displayed by an online
platform on its online interface against remuneration specifically for promoting that
information”.
In addition to the requirements resulting from Article 6 of the e-Commerce Directive, all
online platforms would be required448
by the DSA to ensure that the recipients of the service
receive individualised information so that they can identify, for each specific advertisement
displayed to each individual recipient, in a clear and unambiguous manner and in real time:
 that the information displayed is an advertisement;
 the (natural or legal) person on whose behalf the advertisement is displayed; and
 meaningful information about the main parameters used to determine the recipient to
whom the advertisement is displayed (for targeted advertising).
VLOPs would have to comply with additional rules as set out in Section 4 of the DSA and in
particular would have to compile and make publicly available through application
programming interfaces (APIs) a repository containing certain information. The repository
would have to contain at least: the content of the advertisement; the person on whose behalf
the advertisement is displayed; the period during which the advertisement was displayed;
whether the advertisement was intended to be displayed specifically to one or more particular
groups of recipients of the service and if so, the main parameters used; the total number of
recipients reached and, where applicable, aggregate numbers for the group or groups of
recipients to whom the advertisement was targeted specifically.
The Commission would have to support and promote the development of voluntary industry
standards to ensure the interoperability of these repositories. The Commission would also
have to encourage and facilitate the development of codes of conduct at EU level to support
and complement the transparency obligations relating to advertisements with transparency
obligations that would go beyond the imposed rules.
The DSA proposal sets a high standard of transparency and accountability on how the
providers of platforms moderate content, on advertising and on algorithmic processes. It
provides obligations to assess the risks their systems pose to develop appropriate risk
management tools to protect against systemic risks, including risks to the integrity of their
services being compromised by manipulative techniques. Additionally, the DSA will set out a
co-regulatory backstop, including building on existing voluntary initiatives such as the Code
of Practice on disinformation.
The DSA proposal is without prejudice to, and builds on the liability rules for providers of
intermediary services set out in the e-Commerce Directive – by now established as a
foundation of the digital economy and instrumental to the protection of fundamental rights
online. The DSA being a Regulation, it harmonises those rules; it also clarifies some aspects
448
Article 24 of the DSA proposal.
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of those rules to eliminate existing disincentives towards voluntary own-investigations
undertaken by providers of intermediary services to ensure their users’ safety and to clarify
their role from the perspective of consumers in certain circumstances. Those clarifications are
intended to help smaller, innovative providers scale up and grow by benefitting from greater
legal certainty. The DSA also addresses new information asymmetries and risks that have
arisen since the entry into force of the Directive and were thus not adequately addressed
therein, including in the area of online advertising systems (though only with regard to large
platforms). The new common framework of requirements applicable to certain information
society services (intermediaries) devised by the DSA goes well beyond the basic framework
provided by the E-commerce Directive, but the core framework for the functioning of the
single market and the supervision of digital services is already set in the e-Commerce
Directive; the Directive’s basic structure for a general cooperation mechanism among
Member States is superseded in the context of DSA obligations by the cooperation
mechanism foreseen under the DSA.
Governance
The Member States where the provider is mainly established would be in charge of
enforcement of the rules under the DSA. Member States would have to designate one or more
competent authorities who would be responsible for the application and enforcement of the
rules. One of these competent authorities would have to be designated as the Digital Service
Coordinator (DSC) at the national level. DSCs would be given a set of far-reaching
investigation and enforcement powers (including power to request information, on-site
inspections, power to accept commitments from providers and to make them binding, to order
the cessation of infringements and to impose fines). Were systemic risks emerge across the
Union (in the case of VLOPs), the proposed Regulation provides for supervision and
enforcement at Union level. For VLOPs, the proposal sets-out an enhanced supervision
system, whereby the DSC of the country of establishment could be asked either by the
Commission or by a newly created European Board for Digital Services to investigate a
suspected infringement. Where infringements persist, the Commission could itself intervene
and the DSC would be removed from the case. The DSA further provides for enhanced
cooperation among national DSCs, to guarantee effective oversight and enforcement. The
proposal sets clear responsibilities for the Member State supervising the compliance of
service providers established in its territory with the obligations set by the proposed
Regulation.
Additional jurisdiction rules: The general rules of jurisdiction of the DSA follow the e-
Commerce Directive’s internal market clause (see below) as well as limited liability
principle. The DSA adapts the e-Commerce directive, but then proposes an asymmetric
framework of due diligence obligations and a common framework for enforcement.
Space for action under the present initiative
The DSA addresses the responsibilities of a sector. In contrast, the issues identified in this
impact assessment with respect to political advertising are specific to this particular service,
not to a sector in general, and while political advertising can involve a range of diverse
services, its specific national regulation stems from the role that political ads play in the
political system. Horizontal legislation of general application is not suitable for this purpose.
The DSA will require online platforms to label ads and provide certain information about the
advertiser, extending the scope of requirements provided by the e-Commerce Directive to all
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types of ads, beyond commercial ads. The DSA is therefore highly relevant for the
transparency in political ads initiative as it will introduce a number of relevant or
overlapping obligations for online platforms that publish ads (including political ads) on their
interfaces, as well as some due diligence obligations. The political ads initiative is designed
to articulate with the proposed provisions of the DSA, and rely on the transparency measures
that this instrument will introduce:449
options 1 and 2 introduce sectoral specification within
this framework, as well as certain analogous measures addressing offline actors.
However, the DSA was conceived to address a different issue, and its scope is different. In
particular, the obligations the DSA introduces do not address the specificities of political ads,
especially regarding the substantive transparency that is needed. The DSA alone would not be
sufficient to fully address the problem tackled by the political ads initiative, as it will not
cover all the data required for political accountability (depending on the policy option
adopted, the present initiative may for instance require the disclosure of the amount of money
spent on the ad or of the affiliation with a campaign). The DSA does not require that political
ad spending is retained or provided to a broad range of interested actors – something needed
and foreseen under the present initiative – and, similarly, the DSA does not require ad
publishers to publish reports on the amounts spent on political advertising, including on its
targeting, aggregated to specific actors of interest, whereas the initiative foresees this –
aggregated to campaign or candidate.
Further, the DSA’s transparency requirements will fall upon a range of economic actors that
is too narrow, instead of falling upon all the relevant actors and intermediaries of the adtech
sector described in Annex 6; these transparency requirements will therefore not apply to the
full range of political ads that can be encountered online, especially on third party websites
which are not online platforms. In contrast, the political ads initiative will apply to a broader
range of actors, and in particular will require the relevant data to be transmitted along the
chain of intermediaries involved in the provision of political ads, so as to ensure that the last
actor of the chain is able to provide the adequate level of transparency to those viewing the
ad. It will also require (under Policy Option 2) that ad publishers who publish ads on their
app, platform, website or other online service will make available ex ante (i.e. alongside the
ad) information regarding the advertising brokers whose adverts they carry, with an
indication of their use of personal data and the qualities of the data used for targeting (such as
location, language, age, gender, and other relevant information used), and links to an
independent assessment of their compliance with relevant norms and of the risks posed to the
democratic debate and fair elections. Further, the initiative will also apply to offline actors
involved in the broader process as well as to political parties (to a certain extent), whereas the
DSA’s scope excludes them.450
To put it differently:
The DSA currently obliges VLOPs to disclose to a data subject viewing an ad, and to anyone
looking in the ad repository, information about: the person on whose behalf the advertisement
is displayed; meaningful information about the main parameters used to determine the
449
See the table “Detail of envisaged obligations introduced under solutions 1 and 2, alongside those anticipated for the DSA
(baseline).”
450
Which can be covered by national measures or the AVMSD.
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recipient to whom the advertisement is displayed; the period during which the advertisement
was displayed; whether the advertisement was intended to be displayed specifically to one or
more particular groups of recipients of the service and if so, the main parameters used; the
total number of recipients reached and, where applicable, aggregate numbers for the group or
groups of recipients to whom the advertisement was targeted specifically.
The political ads initiative will oblige the publication of information about: the political
affiliation of the ad; the money spent on it and its source; the chain of actors involved in the
preparation, placement and dissemination of the ad. It will also codify the elements about the
targeting which are either implicit in the GDPR or indicated as desirable in EDPB Guidance,
in particular requiring the publication of: the inclusion and exclusion parameters used; the
means by which these parameters were established; the targeting methods used; the use and
nature of third party analytical services; the source of the personal data used, and in particular
a notice when the data was derived, inferred, and/or provided by a third party. The above
information will be made available to all individuals to whom a political ad is displayed (not
just for publishers that are VLOPs), as well as in the DSA’s VLOPs’ ad repositories, and to
interested actors who requests such information from other ad publishers.
By creating the special category of political ads, the initiative enables research and scrutiny
into political ads to a scale and extent not possible with the DSA alone. Further, the DSA
foresees special access to VLOPs’ data by vetted researchers, whereas the political ads
initiative also foresees access by others, such as accredited election observers, journalists and
Civil Society Organisations.
In conclusion, compared to the DSA the present initiative foresees additional measures on the
type of data and information to be provided on the face of political ads – and in the ad
repositories, where applicable – and broadens the range of actors upon which the obligations
are imposed. With its harmonised obligations regarding political ads, the present initiative
enables research and scrutiny into political ads to a scale and extent not possible with the
DSA alone – particularly by interested actors such as journalists, academics and civil society.
Delta – obligations under the DSA and under the proposal:
The DSA currently obliges VLOPs to disclose to a data subject viewing an ad, and to anyone
looking in the ad repository, information about: the person on whose behalf the advertisement
is displayed; meaningful information about the main parameters used to determine the
recipient to whom the advertisement is displayed; the period during which the advertisement
was displayed; whether the advertisement was intended to be displayed specifically to one or
more particular groups of recipients of the service and if so, the main parameters used; the
total number of recipients reached and, where applicable, aggregate numbers for the group or
groups of recipients to whom the advertisement was targeted specifically.
The political ads initiative will oblige the publication of information about: the political
affiliation of the ad; the money spent on it and its source; the chain of actors involved in the
preparation, placement and dissemination of the ad. It will also codify the elements about the
targeting which are either implicit in the GDPR or indicated as desirable in EDPB Guidance,
in particular requiring the publication of: the inclusion and exclusion parameters used; the
means by which these parameters were established; the targeting methods used; the use and
nature of third party analytical services; the source of the personal data used, and in particular
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a notice when the data was derived, inferred, and/or provided by a third party. The above
information will be made available to all individuals to whom a political ad is displayed (not
just for publishers that are VLOPs), as well as in the DSA’s VLOPs’ ad repositories, and to
anyone who requests such information from other (smaller) publishers.
The key additions made by the political ads initiative are highlighted in the delta table below:
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DSA Political ads proposal
Operators which
have to be
transparent on
political ads:
- VLOPs - All publishers of political ads – VLOPs, but also smaller platforms, third party websites, apps,
TV and radio broadcasters etc.
- Not only publishers, but also intermediaries involved in the preparation and dissemination of
political ads.
Information
about the ad in
the ad and in the
repository:
The ad would need to ensure that the recipient
can identify :
- that the information displayed is an
advertisement;
- the person on whose behalf the
advertisement is displayed;
- meaningful information about the main
parameters used to determine the recipient
to whom the advertisement is displayed.
The repository would in addition have to
contain at least:
- the content of the advertisement;
- the period during which the advertisement
was displayed;
- whether the advertisement was intended to
be displayed specifically to one or more
particular groups of recipients of the
service and if so, the main parameters used;
- the total number of recipients reached and,
where applicable, aggregate numbers for
the group or groups of recipients to whom
the advertisement was targeted specifically.
The ad and the repository would have to contain at least information on:
- the advertiser and (where different) sponsor of the political ad;
- the amounts invoiced for the services in terms of preparation, placement and dissemination
(including specifically targeting): exact amount per ad, and aggregated amount per campaign;
- the sources of these financial means;
- any relevant campaign or party to which the advertisement is affiliated, and where possible an
URL link to official sources of information;
- the identification of the full chain of operators involved in the preparation, placement and
dissemination of the advertisement, as well as their role;
- where the main or sole focus of the ad service being paid for relates to the promotion of existing
(e.g. user-generated) content (in users’ social media feeds, sponsored search results etc.) – a
description of the effect of this promotion (amplification);
- the information on targeting pursuant to the GDPR (see delta table GDPR below), but
specifically:
- the inclusion and exclusion parameters used,
- the means by which these parameters were established,
- the targeting methods used, and particularly the use and characteristics of look-alike audience
and similar techniques,
- the use and nature of third party analytical services,
- the categories of personal data used for the targeting and for the elaboration of the
targeting method,
- the source of the personal data used, and in particular a notice when the data was derived,
inferred, and/or provided by a third party;
Special access : To vetted researchers To vetted researchers, elections observers, accredited journalists, registered civil society
organisations, and political actors.
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9.2 The Digital Markets Act (DMA proposal)451
The proposed Digital Markets Act (DMA) would apply to Core Platform Services designated
by the Commission as gatekeepers, which are offered to business user or end-users that are
located in the EU, irrespective of the place of residence/establishment of the gatekeeper.
These Core Platform Services would be listed in an exhaustive manner in the proposed DMA
and include for instance: online intermediation services; online search engines; online social
networking services; video-sharing platform service; number-independent interpersonal
communication services; and advertising services, including advertising intermediation
services, as long as they are offered by providers of the above services.
Under the DMA, gatekeeper platforms would have to submit to the Commission an
independently audited description of any consumer profiling techniques they use. They would
also not be allowed to combine personal data sourced from these core platform services with
personal data from any other services offered by the gatekeeper or with personal data from
third-party services, unless the end user has been presented with the specific choice. This
could limit the ability of gatekeeper platforms to engage in targeted and personalised
advertising which draw on data from multiple sources.
The other rules are mainly aimed at providing more transparency in the relationship between
business users, i.e. between the gatekeepers and the advertisers and publishers:
 Gatekeepers would also have to provide information to advertisers and publishers (if
they ask for it) on the price paid by each of them, as well as the amount or
remuneration paid to the publisher, for the publishing of a given ad and for each of the
relevant advertising services provided by the gatekeeper;
 Gatekeepers could also be asked to provide advertisers and publishers, upon their
request and free of charge, with access to the performance measuring tools of the
gatekeeper and the information necessary for advertisers and publishers to carry out
their own independent verification of the ad inventory; and
 Gatekeepers shall also refrain from engaging in self-preferencing in relation for
instance to the ranking of their products and services compared to products and
services of third parties.
Governance
The European Commission would be the competent regulatory body to enforce the DMA.
The Commission would have the power to develop, through delegated and implementing
acts, further aspects of the DMA, such as the list of gatekeepers’ obligations. It would have
the power to request information from all undertakings, conduct on-site inspections and order
interim measures. The Commission could also make binding commitments proposed by
gatekeepers. In case of non-compliance or of infringements, the Commission could impose
fines.
Space for action under the present initiative
The DMA therefore puts forward information obligations for gatekeepers toward their
business users, including with regard to political advertising. The existence of these
451
Proposal for a Regulation of the European Parliament and of the Council on contestable and fair markets in the digital
sector (Digital Markets Act). https://eur-lex.europa.eu/legal-content/en/TXT/?uri=COM%3A2020%3A842%3AFIN
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obligations, as well as the existing mechanisms for the provision of information, is relevant
for, and taken into consideration in the transparency in political ads initiative – although the
scope of the DMA provisions is limited to a very narrow range of actors.
9.3. ePrivacy452
and the GDPR453
Political targeted advertising is based on the tracking of online activities and processing of
personal data. The GDPR and ePrivacy Directive currently regulating such activities. The
Commission issued in 2018 a guidance on the application of data protection requirements in
the electoral context including on micro-targeting454
.
The ePrivacy Directive contains rules protecting the terminal equipment of end users.
Accordingly, storing information and gaining access to information already stored in terminal
equipment of a subscriber/user (e.g. cookies on a computer) requires the prior informed
consent of subscribers irrespective of any qualification of personal data of these information.
There is therefore de facto an opt-in requirement regarding tracking455
for the purpose of
targeted advertising.
A new ePrivacy Regulation is currently being negotiated, and the Council’s general approach
allows further processing for compatible purposes, provided that, inter alia the information is
not used to determine user characteristics or to build profiles.456
The proposed Regulation
also explicitly mentions that the concept of direct marketing includes ‘messages sent by
political parties that contact natural persons via electronic communications services in order
to promote their parties’, and ‘messages sent by other non-profit organisations to support the
purposes of the organisation’. Further, it also states the necessity “to prohibit the masking of
the identity and the use of false identities” while sending unsolicited commercial
communications for direct marketing purposes.
The e-Privacy Directive already prohibits unsolicited communications for the purpose of
direct marketing without the person’s prior consent; however, it leaves open whether political
advertising also falls within the definition of direct marketing; some national
implementations of the Directive (such as the Dutch457
or the UK458
) clearly indicate that this
is nationally the case.
Under the e-privacy Directive, Member States must ensure that the competent national
authority and, where relevant, other national bodies have the necessary investigative powers
and resources, including the power to obtain any relevant information they might need to
monitor and enforce national provisions adopted pursuant to this Directive. Under the
proposed e-Privacy regulation, the authorities in charge would be the same as under the
GDRP, the relevant elements of which will now be outlined.
452
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of
personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic
communications) http://data.europa.eu/eli/dir/2002/58/2009-12-19
453
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation). http://data.europa.eu/eli/reg/2016/679/oj
454
See the 2018 electoral package.
455
Article 29 Data Protection Working Party, 2010, Opinion 2/2010 on online behavioural advertising, 22 June 2010,
WP171, p. 25. Also European Data Protection Board, 2020, Guidelines 8/2020 on the targeting of social media users, 2
September 2020, pp. 19-21.
456
General approach of the Council, Article 8(1)(h)(iii).
457
Article 11.7 paragraph 1 Telecommunications Act.
458
Information Commissioner’s Office, ‘Guidance on political campaigning’, 2018, p. 6.
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While cookies may be placed and accessed according to the ePrivacy Directive, the
subsequent processing operations on personal data triggers application of the GDPR rules.
The GDPR requires that all data processing operations respect the principles of:
 lawfulness, fairness and transparency: in addition to being processed lawfully,
personal data must be used in a way that is fair, i.e. is not unduly detrimental,
unexpected or misleading to the individuals concerned, and must be done in a way
which is clear, open and honest – transparency is an overarching principle, with
detailed provision on the ‘right to be informed’ and its modalities.
 purpose limitation: the GDPR requires controllers to collect personal data for
specified, explicit and legitimate purposes and not further process that data in a
manner incompatible with those purposes. The GDPR also limits the processing of
personal data a new purpose other than that for which the data was collected, where
this is not based on consent or on a clear obligation or function set out in law; in these
cases the controller must assess whether processing for the new purpose is compatible
with the original purpose.
 data minimisation: the personal data shall be adequate, relevant and limited to what is
necessary in relation to the purposes for which they are processed.
 accuracy: every reasonable step must be taken to ensure that personal data that are
inaccurate, including letting data subjects verify themselves and erase or rectify
inaccurate data they may have been associated with (e.g. through profiling).459
 storage limitation: personal data shall be kept in a form which permits identification
of data subjects for no longer than is necessary for the purposes for which the personal
data are processed.
 integrity and confidentiality: personal data shall be processed in a manner that ensures
appropriate security of the personal data, including protection against unauthorised or
unlawful processing and against accidental loss, destruction or damage.
 accountability: the data controller is responsible for, and must be able to demonstrate,
compliance with the above principles and with the rest of the GDPR.
Respect of these core principles may be particularly challenging460
– but also particularly
important – in the context of political targeted advertising. Beyond these fundamental axioms
which are of particular relevance to the political ads initiative, the GDPR comprises further
specific rules, delineated below.
Lawfulness. The GDPR requires that data processing operations rely on one of the limitative
legal grounds provided in its Article 6 and, with regard to the processing of personal data for
the purposes of (political) targeted advertising, interpretative guidelines adopted at the EU
level indicate that the consent of the data subject is in practice the only appropriate legal
basis.461
Consent is presumed not to be freely given (and to therefore be invalid) if it does not
allow separate consent to be given to different personal data processing operations despite
this being appropriate, or if the provision of a service is dependent on the consent despite
459
Article 29 Working Party, 2018, Guidelines on automated decision-making and profiling for the purposes of Regulation
2016/679, WP251 rev.01, pp17-18.
460
Blasi and Vermeulen, “Reflections on the murky legal practices of political micro-targeting from a GDPR perspective,”
International Data Privacy Law, 2021 (forthcoming). https://doi.org/10.1093/idpl/ipab018
461
European Data Protection Board Guidelines 8/2020 on the targeting of social media users, 2 September 2020, paragraphs
56, 65 and 66; and European Commission Guidance on the application of Union data protection law in the electoral context,
A contribution from the European Commission to the Leaders’ meeting in Salzburg on 19-20 September 2018. https://eur-
lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A52018DC0638
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such consent not being necessary for such performance. Further, even if the processing of
personal data is based on consent of the data subject, this would not legitimize targeting
which is disproportionate or unfair.462
Special categories of data. The targeting of political or issue-based ads is likely to involve the
processing of sensitive (or special) personal data, a category which includes data relating to
political opinions (as well as relating to racial or ethnic origin, religious or philosophical
beliefs, or trade union membership). There is a general prohibition from processing such
data; there are exemptions to this prohibition, the most relevant of which are the data subject
having given explicit consent to the processing of those personal data for one or more
specified purposes, or (for political parties) having a substantial public interest in compiling
people’s political opinions, provided this is laid down in Union or Member State law and
provided that appropriate safeguards are established.463
In the absence of such law,464
this
means that the prior, explicit consent of the data subject is required in order to deliver
targeted political ads – except where Member States have introduced further conditions or
limitations, such as in the Spanish Organic Law on Protection of Personal Data and
Guarantee of Digital Rights, which provides that the prohibition may not be lifted with the
data subject’s consent.
Automated decision-making. The targeting of political or issue-based ads is also a processing
activity that is likely to require automated decision-making (if not for the attribution of a
specific ad to a given individual, at least for their profiling). However, data subjects have the
right not to be subject to a decision based solely on automated processing, including
profiling, which produces legal effects concerning them or similarly significantly affects
them, unless such processing is carried out under strict conditions (in particular, with the data
subject’s explicit consent). Interpretative guidelines adopted at the EU level indicate that
targeted political advertising falls into this processing category at least when: it has the
potential to significantly affect the circumstances, behaviour or choices of the individuals; it
has a prolonged or permanent impact on the individual; it involves intrusive tracking and/or
profiling; it exploits knowledge of the vulnerabilities of the data subjects targeted.465
Given
the significance of the exercise of the democratic right to vote, personalised messages which
have for instance the possible effect to stop individuals from voting or to make them vote in a
specific way could have the potential of meeting the criterion of significant effect (to be
assessed by the data controller). Hence, in this regard too, the provision of targeted political
ads likely in practice requires the explicit prior consent of those who are to view them.
Right of access. Under the GDPR, the data subject has the right to obtain from the controller
confirmation as to whether or not personal data concerning him or her are being processed,
and, where that is the case, access to the personal data and the following information: (a) the
purposes of the processing; (b) the categories of personal data concerned; (c) the recipients or
462
European Data Protection Board Guidelines 8/2020 on the targeting of social media users, 2 September 2020, p18.
463
GDPR recital 56 and article 9(2)(g). Cf. also EDPS Opinion 3/2018 on online manipulation and personal data.
https://edps.europa.eu/sites/default/files/publication/18-03-19_online_manipulation_en.pdf
464
One such law existed in Spain, but it was partially struck down by the Spanish Constitutional Court for not foreseeing the
adequate safeguards; parts of it remain, allowing the political parties to target people based on their sensitive data if such
data is publicly accessible (including online), during electoral periods.
https://www.tribunalconstitucional.es/NotasDePrensaDocumentos/NP_2019_076/2019-1405STC.pdf
465
Commission Guidance on the application of Union data protection law in the electoral context, A contribution from the
European Commission to the Leaders’ meeting in Salzburg on 19-20 September 2018, pp7-8. And EDPB Guidelines of the
European Data Protection Board on automated decision making, WP251rev.01 as last revised and adopted on 06.02.2018.
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categories of recipient to whom the personal data have been or will be disclosed; (d) where
possible, the envisaged period for which the personal data will be stored, or, if not possible,
the criteria used to determine that period; (e) the existence of the rights to rectification, to
erasure and to object; (f) the right to lodge a complaint with a supervisory authority; (g)
where the personal data are not collected from the data subject, any available information as
to their source; (h) the existence of automated decision-making, including profiling, and
meaningful information about the logic involved, as well as the significance and the
envisaged consequences of such processing for the data subject.
These user-oriented transparency obligations are very relevant for the transparency in
political ads initiative, where there will be some overlap. To ensure full transparency in the
broader context of targeted advertising, EDPB guidance indicates that controllers may want
to consider implementing a mechanism for data subjects to easily check their profile,
including details of the information and sources used to develop it.466
The data subject should
be able to learn the identity of the entity that is targeting him or her with ads, and controllers
should moreover facilitate access to information regarding the targeting, including the
targeting criteria that were used and the segments into which the data subject has been placed.
Joint controllership. Following CJEU Jurisprudence,467
those relying on a platform’s targeted
advertising services to run ads, and who thereby decide who to target and through what
means, will likely be joint controllers with the platform, with the responsibilities that come
with this role. This is relevant regarding the transparency of political advertising and the
accountability of the various actors involved in the process. They shall in a transparent
manner determine their respective responsibilities for compliance with the obligations under
the GDPR, and their arrangement shall duly reflect the respective roles and relationships of
the joint controllers vis-à-vis the data subjects. The data subjects should be able to learn from
the platform the identity of the joint controller they are not in contact with (here, the
advertiser), the essence of the arrangement between the joint controllers, and how to exercise
their rights, because they can exercise their rights in respect to and against each of them.
Impact assessment. Where a type of processing, in particular using new technologies, and
taking into account the nature, scope, context and purposes of the processing, is likely to
result in a high risk to the rights and freedoms of natural persons, the controller shall, prior to
the processing, carry out an assessment of the impact of the envisaged processing operations
on the protection of personal data (DPIA). A DPIA is required in particular in the case of a
systematic and extensive evaluation of personal aspects relating to natural persons which is
based on automated processing, including profiling, and on which decisions are based that
produce legal effects concerning the natural person or similarly significantly affect the natural
person – a condition which, as indicated above, some forms of targeted political ads are likely
to fulfil.
EDPB guidance highlights the fact that additional risks may emerge depending on the
purposes of the advertising campaign and its intrusiveness, or if the targeting involves the
processing of observed, inferred or derived personal data.468
Risks need to be mitigated, and,
where not possible, the authority needs to be consulted; the authority can always request
access to the documented DPIA.
466
European Data Protection Board Guidelines 8/2020 on the targeting of social media users, 2 September 2020, p29.
467
Wirtschaftsakademie, Jehovah’s Witnesses, Fashion ID.
468
European Data Protection Board Guidelines 8/2020 on the targeting of social media users, 2 September 2020, p17.
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Codes of conduct. Further, compliance with approved codes of conduct by the relevant
controllers or processors shall be taken into due account in assessing the impact of the
processing operations performed by such controllers or processors, in particular for the
purposes of a data protection impact assessment. The drawing up of codes of conduct is
encouraged, taking account of the specific features of the processing sector at hand. The
GDPR foresees that associations and other bodies representing categories of controllers or
processors may prepare codes of conduct, or amend or extend such codes, for the purpose of
specifying the application of the GDPR – to be approved by the authority. A code of conduct
for targeted political advertising may be relevant and appropriate as foreseen under the
present initiative. Similarly, a data protection certification mechanisms, seals and marks, may
be established for the purpose of demonstrating compliance with the GDPR.
Research. The GDPR adapts the data processing rules (i.e. applies some derogations,
provided appropriate safeguards are in place) where personal data are processed for scientific
or historical research purposes, statistical purposes or for archiving purposes in the public
interest. The rules amount to a special regime affording a degree of flexibility for genuine
research projects that operate within an ethical framework and aim to grow society’s
collective knowledge and wellbeing. This is highly relevant for research into political ads,
including through the ad repository and its API which is foreseen both in the DSA and in the
political ads initiative.
International transfers. Finally, the GDPR also provides a framework for the transfer of
personal data to non-EU/EEA countries; such transfers are allowed under certain conditions,
such as the third-country being the beneficiary of an adequacy decision. Of particular
relevance for online political ads is the 2020 CJEU Schrems II decision469
, which struck
down a mechanism allowing transfers of personal data to the United States and therefore
required that controllers adduce other appropriate safeguards. Both the EU Commission and
the US government and working on a successor instrument. This situation is relevant because
the online platforms involved in the provision of targeted ads, as well as many of the ad
exchanges and ad intermediaries, are based in the US (or require data transfers thereto),
which means that targeted political ads using their services can currently in a lot of cases be
legally impossible.
Governance
Regarding the governance mechanism of the data protection rules, the GDPR foresees one or
more independent public authorities (the national data protection authorities (DPA)) with
investigative, corrective, authorisation and advisory powers with regard to the application of
the rules on its territory. National DPAs are to cooperate with each other where appropriate by
sharing information and providing mutual assistance. Where a data controller operates in
multiple member states, the DPA of the Member State where it has its main establishment in
is the lead authority for the cross-border processing, and can handle the case, cooperating
with the other authorities concerned (One-Stop-Shop mechanism).
The GDPR also foresees the European Data Protection Board (EDPB), a body of the Union
with legal personality, which is represented by its Chair, and composed of the head of one
supervisory authority of each Member State and of the European Data Protection Supervisor
469
Judgement of the Court (Grand Chamber) of 16 July 2020, Data Protection Commissioner v Facebook Ireland Ltd,
Maximillian Schrems, ECLI:EU:C:2020:559.
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(the DPA for the EU Institutions). Among other tasks, the EDPB ensures the consistent
application of the GDPR through coordinated decisions, guidelines and recommendations.
Space for action under the present initiative
This initiative will build on the data protection acquis and on the governance structures
established by the GDPR and e-Privacy. No derogations from existing structure are envisaged
and complementarity will be ensured. Part of the rationale for the additional rules under the
initiative is that the GDPR and ePrivacy, while very relevant, do not address all the aspects of
political ads that need to be harmonised or addressed according to the problem-definition in
the impact assessment.
More transparency is required for political ads than is provided under the privacy and data
protection rules. Transparency is user-oriented in the latter, whereas political ads also call for
transparency toward society at large (e.g. through publicly-accessible ad repositories, and
publicly-available DPIAs). Further, and as indicated already by the authority who is the lead
DPA for an important proportion of the controllers involved in online advertising, “data
protection law does not mandate the provision of information which is crucial to fair and
transparent online political advertising, including the source of funding for an advertisement
in either an online or offline context.470
The accountability principle requires that data controllers be able to demonstrate its
compliance with the GDPR, and this accountability is overseen by the DPAs. However, given
there is a strong democratic aspect to the issues related to political advertising and its
targeting, it is necessary that the wider democratic society be, too, able to exercise some form
of scrutiny. This is why any DPIA conducted on the targeting aspect of the data processing
needs to be available to the public, not just to the DPAs on demand. That is, both
transparency and accountability need to be public-oriented in the context of political
advertising.
Further, not all political ads involve the processing of personal data, for instance where the
advertisement is not targeted (e.g. contextual advertising). The data protection rules, while
very relevant, are not sufficient to address the whole range of political ads. Related to this
aspect is the initiative’s goal of bringing as much harmonisation and clarity as possible in the
offline environment too. A timely example of ‘offline’ political targeting is the 2018 decision
of the UK’s DPA (the Information Commissioner’s Office) involving “Emma’s Diary,”471
where transparency requirements beyond those resulting from data protection rules would
have been appropriate.
470
Submission of the Irish Data Protection Commission to the Parliament consultation regarding the proposal for a
Regulation of Online Political Advertising in Ireland, 2021, p5. https://assets.gov.ie/3709/041218154738-
73333d7db148411ab052af6a6352bb1f.pdf
471
The ICO fined Lifecycle Marketing (Mother and Baby) Ltd, known as “Emma’s Diary”, £140,000 for illegally collecting
and selling personal information of more than one million individuals. Emma’s Diary, which provides advice on pregnancy
and childcare, sold the information to a third party data broker for use by the UK Labour Party. On foot of this, the data
broker created a database which the Labour party used to profile new mothers in advance of the 2017 General Election. The
Labour Party was able to profile and send political ads, in the form of targeted direct mail, to mums living in areas with
marginal seats – a purpose incompatible with the purpose for which the relevant personal data had initially been collected.
The ICO found that Emma’s Diary’s privacy policy did not detail that personal data would be used for political marketing or
by political parties. https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2018/08/emma-s-diary-fined-140-000-
for-selling-personal-information-for-political-campaigning/
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Also, while the obligations related to transparency address the facilitation of the monitoring
and enforcement of rules relevant to data protection and hence an aspect of the issues
connected to targeting – with in particular the different actors in the value chain having to be
very transparent about their use of targeting – a further line in the transparency in political
ads initiative specifically addresses targeting beyond its transparency dimension, with
limitations during certain periods or regarding certain techniques.
Delta – obligations under the GDPR and under the proposal:
The GDPR currently obliges data controllers to disclose to a data subject at the moment of
first collection, and then on request information about: the purposes of the processing; the
categories of personal data concerned; the recipients or categories of recipient to whom the
personal data have been disclosed; where the personal data are not collected from the data
subject, any available information as to their source; and the existence of automated decision-
making, including profiling, and meaningful information about the logic involved, as well as
the significance and the envisaged consequences of such processing for the data subject. Data
controllers may, according to non-binding EDPB guidance on targeting, also offer
information about: how they have been profiled; what data is processed; who is targeting
them; and what criteria are being used and what segments they are placed into. However, this
is in practice often not done. The above information is only made available to the data
subject.
The political ads initiative will oblige the publication of information about: the political
affiliation of the ad; the money spent on it and its source; the chain of actors involved in the
preparation, placement and dissemination of the ad. It will also codify the elements about the
targeting which are either implicit in the GDPR or indicated as desirable in EDPB Guidance,
in particular requiring the publication of: the inclusion and exclusion parameters used; the
means by which these parameters were established; the targeting methods used; the use and
nature of third party analytical services; the source of the personal data used, and in particular
a notice when the data was derived, inferred, and/or provided by a third party. The above
information will be made available to the data subject, but also to anyone who looks into the
VLOPs’ ad repositories, and to interested actors upon request for other (smaller) publishers.
The key additions made by the political ads initiative are highlighted in the table below:
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GDPR Political ads proposal
Identity and
contact
details of:
- The data controller, its representative;
- The data protection officer;
- The joint controller where applicable [In the context of targeted
advertising, the advertiser will sometimes be a joined controller, and
therefore its identity is already to be disclosed to the data subject
pursuant to the GDPR];
- the advertiser;
- the sponsor of the advertising (where ≠ advertiser);
- information regarding their place of establishment or residence;
Information
on the
targeting:
To the individual, during the first contact prior to the collection of the
data, then upon request:
- the purposes of the processing;
- the categories of personal data concerned;
- the recipients or categories of recipient to whom the personal data
have been disclosed;
- where the personal data are not collected from the data subject, any
available information as to their source;
- the existence of automated decision-making, including profiling, and
meaningful information about the logic involved, as well as the
significance and the envisaged consequences of such processing for the
data subject (Article 15(h)).
EDPB guidance: controllers may want to consider implementing a
mechanism for data subjects to know:
- how they have been profiled;
- what data is processed (and what for, where does it come from, etc.);
- who is targeting them with this ad [iff that person is also a joint
controller, a priori];
- what criteria are being used and what segments they are placed into
[unclear whether per ad or in general];
To the individual, directly accessible in a transparency notice available in
each ad; but also to everyone through a repository for VLOPs, and to
interested actors upon request for other publishers:
- who is targeting you with this specific ad [if ≠ joint controller];
- the number of individuals expected to be reached by the ad;
- any relevant campaign or party to which the advertisement is affiliated,
and where possible an URL link to official sources of information;
- the identification of the full chain of operators involved in the
preparation, placement and dissemination of the advertisement, as well as
their role;
- the amounts invoiced for the services in terms of preparation, placement
and dissemination;
- the sources of these financial means;
- the info on targeting codifying elements which were either implicit in the
GDPR or indicated as desirable in EDPB Guidance, specifically requiring:
- the inclusion and exclusion parameters used,
- the means by which these parameters were established,
- the targeting methods used,
- the use and nature of third party analytical services,
- the categories of personal data used for the targeting and for the
elaboration of the targeting method,
- the source of the personal data used, and in particular a notice when
the data was derived, inferred, and/or provided by a third party.
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Policies - a data protection policy if you process personal data; - a policy specifically on the internal rules of the service provider regarding
targeting and amplification, if they engage in such practices, and delineating
the steps take to comply with the proposal;
- annual reporting
Sensitive data - a general prohibition from processing sensitive data; there are
exemptions to this prohibition, the most relevant of which are the data
subject having given explicit consent to the processing of those personal
data for one or more specified purposes, or (for political parties) having
a substantial public interest in compiling people’s political opinions,
provided this is laid down in Union or Member State law and provided
that appropriate safeguards are established.
- a specific prohibition from targeting data subjects with political ads
based on sensitive data and/or based on too small of a threshold, with
exemptions.
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9.4. The e-Commerce Directive (ECD)472
The basic framework regulating the provision of digital services in the internal market is
the 2000 E-Commerce Directive. The goal of that directive is to allow borderless access
to digital services across the EU and to harmonise the core aspects for such services,
including information requirements and online advertising rules, as well as setting the
framework for the liability regime of intermediary services – categorised as ‘mere
conduits’, ‘caching services’, and ‘hosting services’ – for third party content.
The e-Commerce Directive applies to “information society services”. This refers to “any
service normally provided for remuneration, at a distance, by electronic means and at the
individual request of a recipient of services”, regardless of whether the recipient is a
consumer or a trader. The concept of “commercial communications” is defined broadly
as “any form of communication designed to promote, directly or indirectly, the goods,
services or image of a company, organisation or person pursuing a commercial, industrial
or craft activity or exercising a regulated profession.”
Freedom to provide services and freedom of establishment. Under the internal market
clause of Article 3, the provider of information society services can “freely” offer its
service across the single market by complying with the rules of the country in which it is
established (‘country of establishment’). In parallel, none of its host Member States (i.e.
Member States where it provides its service; ‘country of destination’) can require the
same service provider to comply with additional rules in this Member State. Thus, as a
matter of principle, the information society service provider cannot face any restriction
from another Member State (except exceptionally and on a case-by-case basis, following
the principle of proportionality and a limited list of derogation conditions provided in
Article 3(4)).
Measures protecting users of information society service. The e-Commerce Directive
lays down several measures that seek to protect users (e.g. consumers, business users,
public authorities) by harmonising certain obligations, primarily concerning
identification and transparency requirements imposed on providers of information society
services. They include:
• Obligation on the information society service provider to make available its
identity, name, geographic address, and details enabling rapid contact, relevant
registration information (in trade or similar registers), and VAT number where
relevant.
• Obligation to clearly identify commercial communications designed to promote
directly or indirectly the goods, services or image of a company, organisation or
person pursuing a commercial, industrial or craft activity or exercising a regulated
profession as well as the natural or legal person on behalf of whom the
commercial communication is made. Further, commercial ads must be clearly
identifiable as such (labelled), and the natural or legal person on whose behalf the
commercial communication is made shall be clearly identifiable.
472
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of
information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic
commerce'). http://data.europa.eu/eli/dir/2000/31/oj
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Governance
The e-Commerce Directive also lays down basic principles seeking to ensure effective
cooperation between Member States and effective enforcement of the Directive, which is
effectively to be carried out by the Member States. To this end, the Directive envisages
that any sanction in case of a violation of the e-Commerce Directive should be effective,
proportionate and dissuasive. In addition, the available national court actions should be
effective allowing for the rapid adoption of corrective measures, including interim
measures. The Directive also envisages and encourages cooperation and mutual
assistance between Member States and with the Commission for the implementation of
the Directive, in particular through the establishment of national contact points. Such a
cooperation is particularly relevant in view of the envisaged close cooperation between
country of origin and country of destination as regards implementation of the internal
market principle laid down in Article 3 of the Directive. Finally, the Directive encourages
the use of alternatives enforcement instruments such as codes of conduct at the EU level
or out-of-court dispute settlement schemes.
Space for action under the present initiative
The e-Commerce Directive’s internal market clause is crucial for the cross-border
provision of services, including of political ads. In contrast however, there is space for
action on other provisions, as the information provisions are limited to commercial
communications, and the online advertising landscape has changed dramatically since the
Directive was adopted.
9.5. The Audiovisual Media Services Directive (AVMSD)473
The AVMSD requires that Member States ensure that video-sharing platform services
take appropriate measures to protect minors from harmful content, and to protect the
general public from illegal hate speech and content whose dissemination constitutes a
criminal offence under Union law (related to terrorism, child abuse images, racism and
xenophobia) as well as measures to ensure compliance with commercial communications
requirements under the AVMSD. The AVMSD is a minimum harmonisation directive,
meaning that the Member States are allowed to introduce more detailed or stricter
provisions than the minimum set of rules it contains.
The AVMSD was revised in 2018 and now specifies that that data collected by video
sharing platforms (a category which includes some social media platforms) to protect
children may not be processed for commercial purposes, such as for direct marketing,
profiling and behaviourally targeted advertising. This rule mirrors the one which is
already in place for (linear and non-linear) audiovisual media service providers.
Similarly, platforms now need to make sure that their audiovisual commercial
communications are recognisable as such,474
does not cause any physical, mental or
moral detriment to minors, and does not include or promote discrimination on the basis
of sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual
orientation. The video sharing platforms in scope need to take “appropriate measures” to
make sure that audiovisual commercial communications (a wide term that covers
473
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of
certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of
audiovisual media services (Audiovisual Media Services Directive) (codified version).
http://data.europa.eu/eli/dir/2010/13/oj
474
The European Commission’s 2018 Recommendation on disinformation and elections includes the suggestion that
member states can ‘draw inspiration’ from the AVMSD’s rules on the recognisability of audio-visual commercial
communications when considering how to ensure transparency in paid online political advertisements.
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television advertising, sponsorship, teleshopping and product placement) also comply
with these rules – including those communications that are not marketed, sold or
arranged by them. Having a functionality for uploaders to declare whether videos contain
commercial communications (as far as they know or can be reasonably expected to
know) is one of the foreseen potentially appropriate measure.
Paid political advertising is not covered by the definition of audiovisual commercial
communications. However, the definition of user-generated video may apply to campaign
videos and videos containing political communication uploaded by a political party or
group on a video-sharing platform, where this type of organic content would still be
covered by the rules of the AVMSD.
Governance
The assessment of whether the measures are appropriate needs to be carried out by the
national regulatory authority of the Member State where the video-sharing platform is
established. Availability of out-of-court redress needs to be ensured and, for the rest
(penalties and other sanctions), Member States should decide. A cooperation mechanism
is envisaged between the country of origin of a media service provider and the country
where one or some of its services are wholly or mostly targeted to, with a view to ensure
that certain public interest obligations in that latter country are complied with. Such
system of cooperation is subject to specific substantive and procedural requirements that
do prevail over those provided by the e-Commerce Directive, with regard to the specific
services at stake. This system of cooperation applies to broadcasting and video on
demand service providers but not to video-sharing platform service providers.
The cooperation mechanism set out in the AVMSD aims to ensure that such services do
not purposely establish themselves in the territory of one Member State while targeting
another Member State with the aim of avoiding the stricter regulation of the later when it
comes to matters of general interest. The main purpose is thus to reinforce the country of
origin supervision and enforcement of the rules to services established in its territory
while allowing certain role for the targeted Member State to safeguard certain public
interests.
In 2014, the Commission implemented its Decision on establishing the European
Regulators Group for Audiovisual Media Services475
(ERGA) – an advisory body to the
Commission. The group’s task is to advise and assist the Commission in its work, both to
ensure a consistent implementation in all Member States of the regulatory framework for
audiovisual media services; to any matter related to audiovisual media services within the
Commission's competence. The ERGA was created specifically to facilitate a closer and
more regular cooperation between the competent independent regulatory bodies in order
to achieve a successful development of an internal market for audiovisual media services,
notably in view of increased cross-border distribution and the regulatory challenges
linked to on-demand services. The role of ERGA was strengthened with the revised
AVMSD.
475
Commission Decision on establishing the European Regulators Group for Audiovisual Media Services, 2014.
https://digital-strategy.ec.europa.eu/en/library/commission-decision-establishing-european-regulators-group-
audiovisual-media-services
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9.6. The Unfair Commercial Practices Directive (UCPD)476
and the Regulation on
cooperation between national authorities responsible for the enforcement of consumer
protection laws (CPC Regulation)477
A strong consumer protection framework regulates
the content of advertising, though political advertising rarely also falls within the scope
of commercial advertising. The relevant Directives contain provisions and elements
which could be of general pertinence for political ads – such as transparency obligations,
clauses relating to actions that impair the consumer's ability to make an informed
decision, or relating to the exploitation of a specific misfortune or circumstance of such
gravity as to impair the consumer's judgement. However, these consumer protection-
oriented rules focus on commercial practices and pecuniary or physical harm, hence do
not apply to political ads.
Since these consumer protection laws are Directives, they leave to Member States the
governance aspect of the law. The CPC Regulationwas introduced in 2017 to address the
“ineffective enforcement in cases of cross-border infringements, including infringements
in the digital environment.” It requires Member States to designate one or more
competent authorities and a single liaison office that are responsible for the application of
the Regulation. The national liaison office is responsible for coordinating the
investigation and enforcement activities of the competent authorities. It also foresees a
Mutual Assistance Mechanism, which allows national competent authorities to request
information and enforcement measures from another national competent authority. There
is also a possibility for coordinated investigation and enforcement, for widespread
infringements (especially if they have a Union Dimension). Where appropriate, the
competent authorities may invite Commission officials and other accompanying persons,
who have been authorised by the Commission, to participate in the coordinated
investigations, enforcement actions and other measures.
The UCPD prohibits unfair business-to-consumer commercial practices, including
misleading and aggressive practices occurring in information society services. The
concept of “commercial practices” is defined broadly: advertising and marketing related
to products are expressly included, regardless of whether these activities are carried out
online or offline. This Directive complements the e-Commerce Directive and ensures
complementary protection of the users of the information society services when they act
as consumers, i.e. for purposes outside their trade, business, craft or profession.
Transparency and requirements on commercial communications already established in
the E-Commerce Directive are further reinforced by this Directive – e.g. in making
clearly identifiable a sponsored result on a search engine.
Misleading omissions may be qualified as unfair practices, especially when information
requirements prescribed by Union Law in the field of advertising or advertising are
violated (a non-exhaustive list of which is contained in Annex II to the Regulation).
Following the modifications introduced by the Better Enforcement Directive, the main
parameters used for ranking of products and their importance are considered as material
information under UPCD if the consumers have the possibility to search products on the
476
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-
to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives
97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004
of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’). https://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02005L0029-20220528&from=EN
477
Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation
between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation
(EC) No 2006/2004 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32017R2394
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basis of a query. Under the UCPD, consumers should therefore be informed of any paid
advertisement or payment specifically for achieving higher ranking of products within
the search results.
Governance
Adequate and effective means should be implemented by the Member States to ensure
that the practices carried out on the market comply with the rules of the UCPD.
9.8. The Misleading and Comparative Advertising Directive478
Under the Directive on misleading and comparative advertising, traders are protected
against misleading advertising (from other traders). Advertising directed at businesses
that is deceptive and is likely to injure a competitor is prohibited.
Governance
Adequate and effective means should be implemented by the Member States.
9.9. Consumer Rights Directive (CRD)479
The CRD applies to the conclusion of sales and services contracts, between consumers
and professional traders.
The CRD ensures that consumers are provided with a minimum set of information before
being bound by a contract with a professional trader. Among other things, the trader must
provide consumers with information about the main characteristics of the goods or
services, the identity of the trader, the total price of the goods or services, etc.
Following the modifications introduced by the Better Enforcement Directive, the CRD
makes it mandatory to inform consumers when prices were personalised by means of
automated decision making, before the conclusion of a distance contract. Since prices
may be automatically personalised in advertising materials displayed to consumers, this
modification of the CRD may be of relevance for commercial ads (and hence for
commercial ads that are also political). In addition, if the contract is concluded on online
marketplaces, the provider must inform consumers about the main parameters used for
the ranking of offers and their relative importance. The burden of proof is upon the
traders, regarding their information obligations.
Governance
Adequate and effective means should be implemented by the Member States to ensure
the compliance with the Directive.
9.10. The Directive on services in the internal market480
The Services Directive establishes general provisions facilitating the exercise of the
freedom of establishment for service providers and the free movement of services. It is a
Directive mandating Member States to provide the right conditions for allowing cross-
border services in the EU, by: simplifying administrative procedures for access to,
478
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading
and comparative advertising (codified version) https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A32006L0114
479
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights,
amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and
repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32011L0083
480
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the
internal market (the Information Society Services Directive). http://data.europa.eu/eli/dir/2006/123/oj
176
provision and exercise of services; providing points of single contact for administrative
requirements; and providing the necessary information. Member States must assist, and
cooperate with each other to achieve the goals of the Directive.
The Directive reminds Member States of the principle of free movement, while accepting
inroads when free movement collides with other public interests. However, before
making such encroachments, authorities have to verify and recognize any protection
already provided in the country of origin - under the mutual recognition principle, they
need to take into account what takes place in other countries before proceeding.
The Services Directive does not concern services providers that are online platforms and
intermediaries, nor does it concern electronic communications services and networks (for
which the ePrivacy Directive applies), audiovisual services and radio broadcasting.
Space for action under the present initiative
The Services Directive enables such providers to provide their services wherever in the
Union they are established. The present initiative will not conflict with it; this Directive
is relevant for the problem-definition of the present impact assessment, however, because
its existence means that where such service providers are unable to provide their services
across borders, it is not because they are not allowed, but for other reasons – e.g. because
they are discouraged by the complexity and costs.
9.11. The Platform-to-Business Regulation (P2B)481
The P2B deals with the relationships between online intermediation services or online
search engines and professional users of those online services. It establishes, at a
European level, a set of mandatory rules ensuring “appropriate transparency, as well as
effective redress possibilities” for professional users of online intermediation services.
The relationships considered are business (platform) to business (professional users)
relationships as long as the business users concerned target consumers through their use
of the online platform services.
Both online intermediation services and online search engine must inform their
professional users of the main parameters determining ranking and the importance of
those main parameters (including on the possibility to influence ranking against
remuneration). Under the P2B Regulation, they must also inform their professional users
about any differentiated treatment which they may give, in relation to goods or services
offered to consumers, through their services. Finally, terms and conditions of online
intermediation services must contain a description of technical and contractual access, if
any, to personal data and/or other data provided by professional users when using the
service or generated through the use of the services.
Governance
The Member States must ensure accurate and effective enforcement of the P2B
Regulation. They are not obliged neither to create new enforcement bodies (they can
entrust existing authorities for ensuring such an implementation) nor to provide for ex
officio enforcement or to impose fines.
9.11. The Code of Practice on Disinformation482
481
Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness
and transparency for business users of online intermediation services. https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX:32019R1150
482
Code of Practice on Disinformation https://digital-strategy.ec.europa.eu/en/policies/code-practice-disinformation
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As part of the European Democracy Action Plan, the Commission encouraged the
drawing of a Code of Practice on Disinformation, in which various signatories (online
platforms, leading social networks, advertisers and advertising industry) made voluntary
commitments to address the risk of disinformation and information manipulation
occurring through their services. Signatories signed up to commitments which
correspond to the product and/or service they offer, their role in the value chain, their
technical capabilities and their liability regimes as provided under EU Law, which vary
depending on the role they play in the creation and dissemination of the content at stake,
and which includes, in some cases, political ads.
The commitments under the Code are thus non-binding, and heterogeneous both in kind
and in scope. The Code and its implementation have shortcomings, which were partly
addressed in 2021 with the Commission Guidance,483
which strengthened the Code and
already made way for it to evolve towards a co-regulatory instrument as outlined in the
Digital Services Act. Table 2 below maps these commitments to the obligations foreseen
under the transparency in political ads initiative, as the latter strengthens further some of
the Code’s commitments, or renders some binding.
The Code includes commitments to ensure some level of transparency about political and
issue-based advertising, either on the face of the ad or in an ad repository: on labelling,
on the targeting behind the ad, the sponsor’s identity, the amount spent, the volume and
budget of political ads served by political advertisers in the Member States, the number
of times each ad has been displayed online. Signatories to which this is relevant further
commit to make reasonable efforts to ensure, through effective identity verification and
authorisation systems, that all the necessary (transparency) conditions are met before
allowing the placement of political ads.
Signatories further commit to contribute to limit or avoid risks associated with
microtargeting of political and issue-based ads. In this regard, they are to ensure full
compliance with the GDPR and other relevant laws, in particular regarding the
acquisition of valid consent where required.
The Guidance484
exhorts Signatories to allow for a sufficient level of access for
stakeholders such as such as civil society organisations, non-academic research centres
and investigative journalists, in particular in Member States where there is not adequate
academic capacity.
Part of the commitment on disinformation is for Signatories to facilitate cooperation
with, and information-facilitation toward competent authorities. In terms of governance,
while Signatories are to produce regular self-assessment reports and maintain a
transparency center (where policies and measures are clearly communicated), it is the
European Regulators Group for Audiovisual Media Services (ERGA) that is to monitor
the implementation of the Code at Member State level. Key Performance Indicators
(KPIs) are defined in the Commission Guidance in order to measure the implementation
and effectiveness of the Code’s commitments and the Code’s impact on the
disinformation phenomenon.
483
Guidance on Strengthening the Code of Practice on Disinformation https://digital-
strategy.ec.europa.eu/en/library/guidance-strengthening-code-practice-disinformation
484
The Guidance calls for reinforcing the Code of Practice on Disinformation in the following areas: larger
participation with tailored commitments, better demonetising of disinformation, ensuring the integrity of services,
improving empowerment of users, increasing the coverage of fact-checking and providing increased access to data to
researches and creating a more robust monitoring framework.
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Table 9.1: Substantive obligations and other relevant provisions in the acquis
Obligation/actor485
DSA
Very large online
platform (VLOPs)
Other online
platforms
Intermediaries
Orders to provide information to national authorities – article 9 DSA x x x
Point of contact and legal representative – article 10 and 11 DSA x x x
Traceability data – article 22 DSA [for third parties offering services through platforms]:
 the name, address, telephone number and email address of economic operator
 a copy of the identification document of the economic operator
 the bank account details of natural person;
 [etc.]
x x
User-facing transparency of online advertising (labelling) – article 24 DSA:
 the information displayed is an advertisement;
 the natural or legal person on whose behalf the advertisement is displayed;
 meaningful information about the main parameters used to determine the recipient to whom the advertisement is
displayed (microtargeting transparency)
x x
Provide ad repository – article 30(1) DSA x
Ad repository transparency – article 30(2) DSA
 the content of the advertisement;
 the natural or legal person on whose behalf the advertisement is displayed;
 the period during which the advertisement was displayed;
 whether the advertisement was intended to be displayed specifically to one or more particular groups of recipients of
the service and if so, the main parameters used for that purpose (microtargeting transparency);
 the total number of recipients of the service reached and, where applicable, aggregate numbers for the group or groups
of recipients to whom the advertisement was targeted specifically.
x
External risk assessment, auditing and public accountability – articles 25 – 33 DSA
 VLOPs shall identify, analyse, assess and mitigate any significant systemic risks stemming from the functioning and
use made of their services in the Union, including:
x
485
The DSA essentially groups the subjects of obligations into three groups: obligations applicable to all intermediaries, those applicable to online platforms and those applicable to very large platforms.
There are some additional (not relevant to this initiative) distinctions for hosting and other services. The categories of subject identified for the political ads initiative do not map perfectly to this, but “Ad
exchanges, ad networks, ad platforms” “Other online ad services” and “Other ad services” will sometimes fall under the DSA category of intermediary. These are items which might need to be covered by
both instruments to ensure that relevant subjects are covered.
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o (c) intentional manipulation of their service, including by means of inauthentic use or automated
exploitation of the service, with an actual or foreseeable negative effect on the protection of public health,
minors, civic discourse, or actual or foreseeable effects related to electoral processes and public security.
 When conducting risk assessments, very large online platforms shall take into account, in particular, how their content
moderation systems, recommender systems and systems for selecting and displaying advertisement influence any
of the systemic risks referred to above, including the potentially rapid and wide dissemination of illegal content and
of information that is incompatible with their terms and conditions.
Oversight and sanctions486
x x x
E-Commerce directive487
Definitions (article 2) "information society services"
"service provider"
"recipient of the service"
"consumer"
"commercial communication"
Internal market (article 3) Member States may not restrict the freedom to provide information society services from another Member State.
Principle excluding prior authorisation (article 4) Member States shall ensure that the taking up and pursuit of the activity of an information society service provider may
not be made subject to prior authorisation or any other requirement having equivalent effect.
Information to be provided (article 6) In addition to other information requirements established by Community law, Member States shall ensure that
commercial communications which are part of, or constitute, an information society service comply at least with the
following conditions:
(a) the commercial communication shall be clearly identifiable as such;
(b) the natural or legal person on whose behalf the commercial communication is made shall be clearly
identifiable;
(…)
Cooperation (article 19) 1. Member States shall have adequate means of supervision and investigation necessary to implement this Directive
effectively and shall ensure that service providers supply them with the requisite information.
486
Oversights and sanctions vary depending on the actors but all actors are subject to some kind of oversight and sanctions.
487
http://data.europa.eu/eli/dir/2000/31/oj
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2. Member States shall cooperate with other Member States; they shall, to that end, appoint one or several contact
points, whose details they shall communicate to the other Member States and to the Commission.
3. Member States shall, as quickly as possible, and in conformity with national law, provide the assistance and
information requested by other Member States or by the Commission, including by appropriate electronic means.
4. Member States shall establish contact points which shall be accessible at least by electronic means and from which
recipients and service providers may:
(a) obtain general information on contractual rights and obligations as well as on the complaint and redress
mechanisms available in the event of disputes, including practical aspects involved in the use of such mechanisms;
(b) obtain the details of authorities, associations or organisations from which they may obtain further information or
practical assistance.
5. Member States shall encourage the communication to the Commission of any significant administrative or judicial
decisions taken in their territory regarding disputes relating to information society services and practices, usages and
customs relating to electronic commerce. The Commission shall communicate these decisions to the other Member
States.
Audiovisual Media Services Directive488
Scope (recitals 21 and 22) For the purposes of this Directive, the definition of an audiovisual media service should cover only audiovisual media
services, whether television broadcasting or on-demand, which are mass media, that is, which are intended for
reception by, and which could have a clear impact on, a significant proportion of the general public. Its scope should
be limited to services as defined by the Treaty on the Functioning of the European Union and therefore should cover
any form of economic activity, including that of public service enterprises, but should not cover activities which are
primarily non-economic and which are not in competition with television broadcasting, such as private websites and
services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of
sharing and exchange within communities of interest.
For the purposes of this Directive, the definition of an audiovisual media service should cover mass media in their
function to inform, entertain and educate the general public, and should include audiovisual commercial
communication but should exclude any form of private correspondence, such as e-mails sent to a limited number of
recipients.
Definitions (article 1)  ‘audiovisual media service’.
488
http://data.europa.eu/eli/dir/2018/1808/oj
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 ‘audiovisual commercial communication’
 ‘programme’
 ‘editorial responsibility’
 ‘media service provider’
 ‘broadcaster’
 ‘on-demand audiovisual media service’
 ‘audiovisual commercial communication’
 ‘television advertising’
 ‘surreptitious audiovisual commercial communication’
 ‘sponsorship’
 ‘product placement’
Requirements for the AVS providers to be identifiable
(article 5)
The provider shall make easily, directly and permanently accessible to recipients its name, address, contact details
(email address), and where relevant, the competent supervisory authority.
Prohibition to use some data for advertising (‘Article 6a
and Article 28b (3))
Personal data of minors collected or otherwise generated by media service providers and video-sharing platform
providers to protect children shall not be processed for commercial purposes, such as direct marketing, profiling and
behaviourally targeted advertising.
Requirements on commercial and sponsored content
(articles 9 and 10)
9 (1) (a), audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual
commercial communication shall be prohibited;
(b) audiovisual commercial communications shall not use subliminal techniques;
(c) audiovisual commercial communications shall not:
(i) prejudice respect for human dignity;
(ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief,
disability, age or sexual orientation;
(iii) encourage behaviour prejudicial to health or safety;
(iv) encourage behaviour grossly prejudicial to the protection of the environment;
(g) audiovisual commercial communications shall not cause physical, mental or moral detriment to minors.
10 (1) (c) viewers shall be clearly informed of the existence of a sponsorship agreement. Sponsored programmes shall
be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its
product(s) or service(s) or a distinctive sign thereof in an appropriate way for programmes at the beginning, during
and/or at the end of the programmes.
Compliance of providers regardless of whether the
sponsored communications are theirs (Article 28b (2))
Video-sharing platform providers shall comply with the requirements set out in Article 9(1) with respect to audiovisual
commercial communications that are marketed, sold or arranged by them, and shall take appropriate measures to
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comply with the requirements set out in Article 9(1) with respect to audiovisual commercial communications that are
not marketed, sold or arranged by them, taking into account the limited control they may potentially exercise over
those audiovisual commercial communications.
Video-sharing platform providers shall clearly inform users where programmes and user-generated videos contain
audiovisual commercial communications, provided that such communications are declared by the uploading user, or
provided the provider has knowledge of that fact.
Unfair Commercial Practices Directive489
Definitions (article 2) ‘commercial practices’ (includes advertising and marketing related to products, regardless of whether carried out
online or offline).
‘to materially distort the economic behaviour of consumers’ means using a commercial practice to appreciably impair
the consumer's ability to make an informed decision, thereby causing the consumer to take a transactional decision that
he would not have taken otherwise.‘trader’ means any natural or legal person who, in commercial practices covered by
this Directive, is acting for purposes relating to his trade, business, craft or profession
‘business-to-consumer commercial practices’ means any act, omission, course of conduct or representation,
commercial communication including advertising and marketing, by a trader, directly connected with the promotion,
sale or supply of a product to consumers;
‘professional diligence’ means the standard of special skill and care which a trader may reasonably be expected to
exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in
the trader's field of activity.
‘undue influence’ means exploiting a position of power in relation to the consumer so as to apply pressure, even
without using or threatening to use physical force, in a way which significantly limits the consumer's ability to make an
informed decision;
Prohibition of unfair commercial practices (article 5) A commercial practice shall be unfair if: (a) it is contrary to the requirements of professional diligence, and (b) it
materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average
consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial
practice is directed to a particular group of consumers.
In particular, commercial practices shall be unfair if they are misleading or aggressive.
Misleading actions and omissions (Articles 6 and 7) A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in
any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information
489
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02005L0029-20220528&from=EN
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is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause
him to take a transactional decision that he would not have taken otherwise:
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales
process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the
product;
A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and
circumstances and the limitations of the communication medium, it omits material information that the average
consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to
cause the average consumer to take a transactional decision that he would not have taken otherwise.
Use of harassment, coercion and undue influence (article 9) In determining whether a commercial practice uses harassment, coercion, including the use of physical force, or undue
influence (and is therefore unfair and prohibited), account shall be taken of: (a) its timing, location, nature or
persistence; (c) the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair
the consumer's judgement, of which the trader is aware, to influence the consumer's decision with regard to the
product.
Commercial practices which are in all circumstances
considered unfair (Annex I)
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without
making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).
Misleading and Comparative Advertising Directive490
Ad for commercial purposes (article 2) (a) ‘advertising’ means the making of a representation in any form in connection with a trade, business, craft or
profession in order to promote the supply of goods or services, including immovable property, rights and obligations;
(b) ‘misleading advertising’ means any advertising which in any way, including its presentation, deceives or is likely to
deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely
to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor;
(c) ‘comparative advertising’ means any advertising which explicitly or by implication identifies a competitor or goods
or services offered by a competitor;
Consumer Rights Directive491
Information requirements for distance and off-premises
contracts (Article 6)
1. Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall
provide the consumer with the following information in a clear and comprehensible manner:
490
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32006L0114
491
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32011L0083
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(a) the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods
or services;
(b) the identity of the trader, such as his trading name;
(c) the geographical address at which the trader is established and the trader’s telephone number, fax number
and e-mail address; in addition, where the trader provides other means of online communication which
guarantee that the consumer can keep any written correspondence, including the date and time of such
correspondence, with the trader on a durable medium, the information shall also include details of those other
means; all those means of communication provided by the trader shall enable the consumer to contact the
trader quickly and communicate with him efficiently; where applicable, the trader shall also provide the
geographical address and identity of the trader on whose behalf he is acting;
(d) if different from the address provided in accordance with point (c), the geographical address of the place
of business of the trader, and, where applicable, that of the trader on whose behalf he is acting, where the
consumer can address any complaints;
(e) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is
such that the price cannot reasonably be calculated in advance, the manner in which the price is to be
calculated;
(ea) where applicable, that the price was personalised on the basis of automated decision-making;
9. As regards compliance with the information requirements laid down in this Chapter, the burden of proof shall be on
the trader.
Additional specific information requirements for contracts
concluded on online marketplaces (Article 6a)
1. Before a consumer is bound by a distance contract, or any corresponding offer, on an online marketplace, the
provider of the online marketplace shall, without prejudice to Directive 2005/29/EC, provide the consumer with the
following information in a clear and comprehensible manner and in a way appropriate to the means of distance
communication:
(a) general information, made available in a specific section of the online interface that is directly and easily
accessible from the page where the offers are presented, on the main parameters determining ranking, as
defined in point (m) of Article 2(1) of Directive 2005/29/EC, of offers presented to the consumer as a result of
the search query and the relative importance of those parameters as opposed to other parameters;
(b) whether the third party offering the goods, services or digital content is a trader or not, on the basis of the
declaration of that third party to the provider of the online marketplace;
(c) where the third party offering the goods, services or digital content is not a trader, that the consumer rights
stemming from Union consumer protection law do not apply to the contract;
(d) where applicable, how the obligations related to the contract are shared between the third party offering
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the goods, services or digital content and the provider of the online marketplace, such information being
without prejudice to any responsibility that the provider of the online marketplace or the third-party trader has
in relation to the contract under other Union or national law.
2. Without prejudice to Directive 2000/31/EC, this Article does not prevent Member States from imposing additional
information requirements for providers of online marketplaces. Such provisions shall be proportionate, non-
discriminatory and justified on grounds of consumer protection.
Platform-to-Business Regulation492
Ranking (article 5) 1. Providers of online intermediation services shall set out in their terms and conditions the main parameters
determining ranking and the reasons for the relative importance of those main parameters as opposed to other
parameters.
2. Providers of online search engines shall set out the main parameters, which individually or collectively are most
significant in determining ranking and the relative importance of those main parameters, by providing an easily and
publicly available description, drafted in plain and intelligible language, on the online search engines of those
providers. They shall keep that description up to date.
3. Where the main parameters include the possibility to influence ranking against any direct or indirect remuneration
paid by business users or corporate website users to the respective provider, that provider shall also set out a
description of those possibilities and of the effects of such remuneration on ranking in accordance with the
requirements set out in paragraphs 1 and 2.
4. Where a provider of an online search engine has altered the ranking order in a specific case or delisted a particular
website following a third party notification, the provider shall offer the possibility for the corporate website user to
inspect the contents of the notification.
Differentiated treatment (Article 7) 1. Providers of online intermediation services shall include in their terms and conditions a description of any
differentiated treatment which they give, or might give, in relation to goods or services offered to consumers through
those online intermediation services by, on the one hand, either that provider itself or any business users which that
provider controls and, on the other hand, other business users. That description shall refer to the main economic,
commercial or legal considerations for such differentiated treatment.
2. Providers of online search engines shall set out a description of any differentiated treatment which they give, or
might give, in relation to goods or services offered to consumers through those online search engines by, on the one
hand, either that provider itself or any corporate website users which that provider controls and, on the other hand,
492
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other corporate website users.
3. The descriptions referred to in paragraphs 1 and 2 shall cover in particular, where applicable, any differentiated
treatment through specific measures taken by, or the behaviour of, the provider of online intermediation services or the
provider of the online search engine relating to any of the following:
(a), access that the provider, or that the business users or corporate website users which that provider controls,
may have to any personal data or other data, or both, which business users, corporate website users or
consumers provide for the use of the online intermediation services or the online search engines concerned or
which are generated through the provision of those services;
(b), ranking or other settings applied by the provider that influence consumer access to goods or services
offered through those online intermediation services by other business users or through those online search
engines by other corporate website users;
(c), any direct or indirect remuneration charged for the use of the online intermediation services or online
search engines concerned;
(d), access to, conditions for, or any direct or indirect remuneration charged for the use of services or
functionalities, or technical interfaces, that are relevant to the business user or the corporate website user and
that are directly connected or ancillary to utilising the online intermediation services or online search engines
concerned.
Access to data (Article 9) 1. Providers of online intermediation services shall include in their terms and conditions a description of the technical
and contractual access, or absence thereof, of business users to any personal data or other data, or both, which business
users or consumers provide for the use of the online intermediation services concerned or which are generated through
the provision of those services.
2. Through the description referred to in paragraph 1, providers of online intermediation services shall adequately
inform business users in particular of the following:
(a) whether the provider of online intermediation services has access to personal data or other data, or both,
which business users or consumers provide for the use of those services or which are generated through the
provision of those services, and if so, to which categories of such data and under what conditions;
(b) whether a business user has access to personal data or other data, or both, provided by that business user in
connection to the business user’s use of the online intermediation services concerned or generated through the
provision of those services to that business user and the consumers of the business user’s goods or services,
and if so, to which categories of such data and under what conditions;
(c) in addition to point (b), whether a business user has access to personal data or other data, or both,
including in aggregated form, provided by or generated through the provision of the online intermediation
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services to all of the business users and consumers thereof, and if so, to which categories of such data and
under what conditions; and
(d) whether any data under point (a) is provided to third parties, along with, where the provision of such data
to third parties is not necessary for the proper functioning of the online intermediation services, information
specifying the purpose of such data sharing, as well as possibilities for business users to opt out from that data
sharing.
GDPR493
Principles relating to processing of personal data (article 5)  lawfulness, fairness and transparency
 purpose limitation
 data minimisation
 accuracy
 storage limitation
 integrity and confidentiality
 accountability
Lawfulness of processing (article 6) Processing shall be lawful only if and to the extent that at least one of the 6 legal bases applies.
In the case of targeted political advertising however, EDPB guidelines show the difficulty of justifying the processing
under a legal basis other than consent.494
Conditions for consent (article 7) ‘Consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data
subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the
processing of personal data relating to him or her. Silence, pre-ticked boxes or inactivity should not therefore constitute
consent.
Conditions specific to children (article 8) Processing based on a child’s consent is only lawful if the child is aged 16 or more, or to the extent that consent is
given or authorised by the holder of parental responsibility over the child below that age.
The controller shall make reasonable efforts to verify in such cases that consent is give or authorised by the holder of
parental responsibility over the child, taking into consideration available technology.
Children merit specific protection with regard to their personal data, as they may be less aware of the risks,
493
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32016R0679
494
European Data Protection Board, EDPB guidelines on the targeting of social media users (2021), paragraphs 56, 65 and 66.
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consequences and safeguards concerned and their rights in relation to the processing of personal data. Such specific
protection should, in particular, apply to the use of personal data of children for the purposes of marketing or creating
personality or user profiles and the collection of personal data with regard to children when using services offered
directly to a child.
Any information and communication, where processing is addressed to a child, should be in such a clear and plain
language that the child can easily understand.
Processing of special categories of personal data (article 9)
(‘sensitive data’)
General prohibition from processing sensitive data, i.e. data relating to racial or ethnic origin, political opinions,
religious or philosophical beliefs, or trade union membership.
Relevant exemptions to this prohibition include:
 if the data subject has given explicit consent to the processing of those personal data for one or more specified
purposes
 if processing is carried out in the course of its legitimate activities with appropriate safeguards by a
foundation, association or any other not-for-profit body with a political, philosophical, religious or trade union
aim and on condition that the processing relates solely to the members or to former members of the body or to
persons who have regular contact with it in connection with its purposes and that the personal data are not
disclosed outside that body without the consent of the data subjects
 if processing relates to personal data which are manifestly made public by the data subject
 if processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law
which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide
for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.
This last exemption is to be read together with Recital 56: Where in the course of electoral activities, the operation of
the democratic system in a Member State requires that political parties compile personal data on people's political
opinions, the processing of such data may be permitted for reasons of public interest, provided that appropriate
safeguards are established.
Right of access (article 15) The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data
concerning him or her are being processed, and, where that is the case, access to the personal data and the following
information:
(a) the purposes of the processing;
(b) the categories of personal data concerned;
(c) the recipients or categories of recipient to whom the personal data have been or will be disclosed, in
particular recipients in third countries or international organisations;
(d) where possible, the envisaged period for which the personal data will be stored, or, if not possible, the
criteria used to determine that period;
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(e) the existence of the right to request from the controller rectification or erasure of personal data or
restriction of processing of personal data concerning the data subject or to object to such processing;
(f) the right to lodge a complaint with a supervisory authority;
(g) where the personal data are not collected from the data subject, any available information as to their
source;
(h) the existence of automated decision-making, including profiling, and meaningful information about the
logic involved, as well as the significance and the envisaged consequences of such processing for the data
subject.
Automated decision-making, including profiling (article 22) The data subject shall have the right not to be subject to a decision based solely on automated processing, including
profiling, which produces legal effects concerning him or her or similarly significantly affects him or her, unless such
processing is carried out under strict conditions (particularly relevant: with the data subject’s explicit consent).
Joint controllership (article 26) Where two or more controllers jointly determine the purposes and means of processing, they shall be joint controllers.
They shall in a transparent manner determine their respective responsibilities for compliance with the obligations under
the GDPR. Their arrangement shall duly reflect the respective roles and relationships of the joint controllers vis-à-vis
the data subjects. The essence of the arrangement shall be made available to the data subject.
Risks, Data protection impact assessment (article 35) and
prior consultation (article 36)
Where a type of processing, in particular using new technologies, and taking into account the nature, scope, context
and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the
controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations
on the protection of personal data.
A data protection impact assessment (DPIA) shall in particular be required in the case of a systematic and extensive
evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling,
and on which decisions are based that produce legal effects concerning the natural person or similarly significantly
affect the natural person (on these ‘legal effects’, see the reference above to the 2018 Commission Guidance on the
application of Union data protection law in the electoral context).
Where appropriate, the controller shall seek the views of data subjects or their representatives on the intended
processing.
Article 36 GDPR: the controller shall consult the supervisory authority prior to processing where a DPIA under Article
35 indicates that the processing would result in a high risk in the absence of measures taken by the controller to
mitigate the risk.
Codes of conduct (article 40) and their monitoring (article
41)
The Member States, the supervisory authorities, the Board and the Commission shall encourage the drawing up of
codes of conduct intended to contribute to the proper application of this Regulation, taking account of the specific
features of the various processing sectors and the specific needs of micro, small and medium-sized enterprises.
Associations and other bodies representing categories of controllers or processors may prepare codes of conduct, or
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amend or extend such codes, for the purpose of specifying the application of this Regulation, such as with regard to
(among others):
(c) the collection of personal data;
(d) the pseudonymisation of personal data;
(e) the information provided to the public and to data subjects;
(f) the exercise of the rights of data subjects;
(g) the information provided to, and the protection of, children, and the manner in which the consent of the
holders of parental responsibility over children is to be obtained;
Certification (article 42) The Member States, the supervisory authorities, the Board and the Commission shall encourage, in particular at Union
level, the establishment of data protection certification mechanisms and of data protection seals and marks, for the
purpose of demonstrating compliance with this Regulation of processing operations by controllers and processors.
Governance, supervision see table below, ‘Relevant EU level governance’
Processing for research purposes
Presumption of compatibility
(article 5(1)(b))
(article 6(4))
Information requirements regarding the further processing
(article 13(3) and 14(4))
Personal data shall be:
(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is
incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or
historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered
to be incompatible with the initial purposes (‘purpose limitation’)
The personal data may be processed for a purpose other than that for which it has been collected if it can be ascertained
as compatible with the initial purpose, taking into account, inter alia:
a) any link between the purposes for which the personal data have been collected and the purposes of the
intended further processing; (b) the context in which the personal data have been collected, in particular
regarding the relationship between data subjects and the controller; (c) the nature of the personal data, in
particular whether special categories of personal data are processed, pursuant to Article 9, or whether personal
data related to criminal convictions and offences are processed, pursuant to Article 10; (d) the possible
consequences of the intended further processing for data subjects; (e) the existence of appropriate safeguards,
which may include encryption or pseudonymisation.
Where the controller intends to further process the personal data for a purpose other than that for which the personal
data were collected, the controller shall provide the data subject prior to that further processing with information on
that other purpose and with any relevant further information (on the processing, on the data subject’s rights)
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Longer storage for research purposes (article 5(1) (e))
Derogation from the prohibition to process sensitive
personal data (article 9(2) (j))
Derogation from certain information requirements in the
context of research (article 14(5) (b))
Derogation from erasure requirements (article 17(3) (d))
Right to object (article 21(6))
Personal data shall be:
(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes
for which the personal data are processed; personal data may be stored for longer periods insofar as the
personal data will be processed solely for archiving purposes in the public interest, scientific or historical
research purposes or statistical purposes in accordance with Article 89(1) subject to implementation of the
appropriate technical and organisational measures required by this Regulation in order to safeguard the rights
and freedoms of the data subject (‘storage limitation’);
The prohibition on the processing of sensitive personal data shall not apply where:
(j) processing is necessary for archiving purposes in the public interest, scientific or historical research
purposes or statistical purposes in accordance with Article 89(1) based on Union or Member State law which
shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for
suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.
Where personal data have not been obtained from the data subject, the controller shall provide the data subject with the
information (listed), except where and insofar as:
(b) the provision of such information proves impossible or would involve a disproportionate effort, in
particular for processing for archiving purposes in the public interest, scientific or historical research purposes
or statistical purposes, subject to the conditions and safeguards referred to in Article 89(1) or in so far as the
obligation referred to in paragraph 1 of this Article is likely to render impossible or seriously impair the
achievement of the objectives of that processing. In such cases the controller shall take appropriate measures
to protect the data subject's rights and freedoms and legitimate interests, including making the information
publicly available;
The right to erasure (‘right to be forgotten’) shall not apply to the extent that processing is necessary:
(d) for archiving purposes in the public interest, scientific or historical research purposes or statistical
purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render
impossible or seriously impair the achievement of the objectives of that processing;
Where personal data are processed for scientific or historical research purposes or statistical purposes pursuant to
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Safeguards and derogations relating to processing for
archiving purposes in the public interest, scientific or
historical research purposes or statistical purposes (article
89)
Article 89(1), the data subject, on grounds relating to his or her particular situation, shall have the right to object to
processing of personal data concerning him or her, unless the processing is necessary for the performance of a task
carried out for reasons of public interest.
Where personal data are processed for scientific or historical research purposes or statistical purposes, Union or
Member State law may provide for derogations from the rights referred to in Articles 15 (right of access), 16 (right to
rectification), 18 (right to restriction of processing) and 21 (right to object) subject to specific conditions and under
appropriate safeguards (such as, for instance, pseudonymisation of the data), in so far as such rights are likely to render
impossible or seriously impair the achievement of the specific purposes, and such derogations are necessary for the
fulfilment of those purposes.
Transfers of personal data to third countries or international
organisations (articles 44, 45, 46, 47)
Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third
country or to an international organisation shall take place only if
- the Commission has decided that the third country, a territory or one or more specified sectors within that
third country, or the international organisation in question ensures an adequate level of protection. Or, in the
absence of such a decision, if
- the controller or processor has provided appropriate safeguards, and on condition that enforceable data subject
rights and effective legal remedies for data subjects are available.
Binding corporate rules are also relevant.
ePrivacy Directive495
Definitions (article 2) ‘communication’ means any information exchanged or conveyed between a finite number of parties by means of a
publicly available electronic communications service. This does not include any information conveyed as part of a
broadcasting service to the public over an electronic communications network except to the extent that the information
can be related to the identifiable subscriber or user receiving the information
Confidentiality of the communications, store and/or access
information in a user/subscriber’s terminal (article 5)
Listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data
by persons other than users is prohibited without the consent of the users concerned.
The use of electronic communications networks to store information or to gain access to information (e.g. cookies’ ID)
stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user
concerned is provided with clear and comprehensive information, inter alia about the purposes of the processing, and is
495
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offered the right to refuse such processing by the data controller.
Therefore, where the display of targeted advertisements on the users' page requires tracking, and read/write operation
to match their "likes" with information already held by the platform, the users’ prior consent will be required.
Unsolicited communications (Article 13) The use of automated calling systems without human intervention (automatic calling machines), facsimile machines
(fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have
given their prior consent.
DMA496
Definitions (article 2) ‘Gatekeeper’
‘Core platform service’ – which comprises: (h) advertising services, including any advertising networks, advertising
exchanges and any other advertising intermediation services, provided by a provider of any of the core platform
services.
‘Information society service’
‘Ancillary service’ – which means services provided in the context of or together with core platform services,
including fulfilment, identification or advertising services.
‘End user’
‘Business user’
‘Ranking’
Obligations for gatekeepers (article 5) In respect of each of its core platform services identified pursuant to Article 3(7), a gatekeeper shall:
(a) refrain from combining personal data sourced from these core platform services with personal data from
any other services offered by the gatekeeper or with personal data from third-party services, and from signing
in end users to other services of the gatekeeper in order to combine personal data, unless the end user has been
presented with the specific choice and provided consent
(g) provide advertisers and publishers to which it supplies advertising services, upon their request, with
information concerning the price paid by the advertiser and publisher, as well as the amount or remuneration
paid to the publisher, for the publishing of a given ad and for each of the relevant advertising services
provided by the gatekeeper.
496
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Obligations for gatekeepers susceptible of being further
specified (article 6)
In respect of each of its core platform services, a gatekeeper shall:
(d) refrain from treating more favourably in ranking services and products offered by the gatekeeper itself or
by any third party belonging to the same undertaking compared to similar services or products of third party
and apply fair and non-discriminatory conditions to such ranking;
(g) provide advertisers and publishers, upon their request and free of charge, with access to the performance
measuring tools of the gatekeeper and the information necessary for advertisers and publishers to carry out
their own independent verification of the ad inventory;
(j) provide to any third party providers of online search engines, upon their request, with access on fair,
reasonable and non-discriminatory terms to ranking, query, click and view data in relation to free and paid
search generated by end users on online search engines of the gatekeeper, subject to anonymisation for the
query, click and view data that constitutes personal data;
Obligation of an audit (article 13) A gatekeeper shall annually submit to the Commission an independently audited description of any techniques for
profiling of consumers that the gatekeeper applies to or across its core platform services.
The Directive on services in the internal market497
Scope (Article 2) This Directive shall not apply to the following activities: (c) electronic communications services and networks; (g)
audiovisual services and radio broadcasting.
Definitions (Article 4) ‘service’
‘provider’
‘overriding reasons relating to the public interest’
‘commercial communication’
Administrative simplification (Articles 5 to 8) Simplification of procedures
Points of single contact
Right to information
Procedures by electronic means
Administrative cooperation among Member States (Article Mutual assistance obligations
497
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market. http://data.europa.eu/eli/dir/2006/123/oj
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28)
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Table 9.2 – Mapping of Code of Practice commitments to proposed obligations under the
political ads initiative
Obligations (on VLOPs)498
under the political ads
initiative
Existing Code of Practice499
commitments and
Guidance500
proposals
Orders to provide information to national authorities Code of Practice:
Annual self-assessment reports, and further
cooperation with the Commission, including
responding to questions and making information
available upon request
Guidance:
Access to information facilitated to enable
competent authorities to perform their monitoring
and enforcement function
ERGA to monitor implementation of Code at
Member State level
Point of contact and legal representative Guidance:
Possible further cooperation between platforms and
Member States via the Rapid Alert System (not
linked specifically to advertising)
Retain relevant basic information (client account number,
amount, data, …) on political ads transactions
Participate in transaction data sharing (to enable complete
disclosures)
Guidance:
Access to information facilitated to enable
competent authorities to perform their monitoring
and enforcement function
Political ads ‘know your client’ data (traceability data + ):
 the name, address, telephone number and email
address of economic operator
 a copy of the identification document of the
economic operator
 the bank account details of natural person;
 [etc]
 where the advertiser is registered as a political
campaign or as a political candidate, the register
in which the advertiser is registered and its
registration number or equivalent means of
identification in that register;
 undertaking that applicable national rules have
been complied with
 certification that relevant personal data was
handled in a manner which complies with the
GDPR
Guidance:
Reasonable efforts to ensure, through effective
identity verification and authorisation systems, that
all the necessary conditions are met before
allowing the placement of these types of ads.
User-facing transparency of online advertising (labelling)
that the information displayed is an advertisement;
 the natural or legal person on whose behalf the
advertisement is displayed;
 meaningful information about the main parameters
Code of Practice
All advertisements should be clearly
distinguishable from editorial content and
recognisable as paid-for content or labelled as such
498
These obligations are understood cumulatively to the obligations foreseen in the DSA proposals
499
https://digital-strategy.ec.europa.eu/en/policies/code-practice-disinformation
500
https://digital-strategy.ec.europa.eu/en/library/guidance-strengthening-code-practice-disinformation
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used to determine the recipient to whom the
advertisement is displayed (microtargeting
transparency)
 the name of any associated political campaign (plus
registration information where relevant)
 undertaking that a political (“issues”) ad not
associated with political campaign
 Indication on the face of the ad that it was targeted
(going beyond the DSA provision)
Commit to enable “public disclosure” of
of political advertising (defined as advertisements
advocating for or against the election of a candidate
or passage of referenda in national and European
elections).
Commit to use “reasonable efforts towards devising
approaches to “publicly disclose” "issue-based
advertising" (no definition).
NB: No commitment to provide disclosure info in
the face of the label
Guidance:
Commit to ensure effective labelling as paid-for
content and that ad relates to political or social
issues; possible set of common criteria and
examples of labels/marking
Commit to integrate research on effectiveness of
labels in informing users
Commit to ensure that labels remain in place when
users share political or issue-based ads in an
organic way, so that they continue to be clearly
identified as ads (even in messaging platforms)
Provide ad repository – article 30(1) DSA Code of Practice:
Commit to enable public disclosure
of political advertising (defined as advertisements
advocating for or against the election of a candidate
or passage of referenda in national and European
elections), which could include;
 actual sponsor identity; and
 amounts spent.
Commit to use reasonable efforts towards devising
approaches to publicly disclose "issue-based
advertising" (no definition)
Commit to encourage market uptake of tools that
help consumers understand why they are seeing
particular advertisements.
Guidance:
Improve quality and completeness of ad
repositories (see ad repository transparency below)
Creation of a common repository of rejected ads
Interoperable repositories Guidance:
Cross-platform cooperation - exchange of
information on disinformation ads refused by one
platform to prevent their appearance on other
platforms.
APIs (application programming interfaces) for
political ad repositories should include a set of
minimum functionalities and search criteria
enabling (users and researchers to perform)
customized searches to retrieve real time data in
standard formats permitting cross-platform
comparisons, research and monitoring
If repositories of issue-based ads are established
their APIs should have similar capabilities
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Ad repository transparency – article 30(2) DSA
 the content of the advertisement;
 the natural or legal person on whose behalf the
advertisement is displayed;
 the period during which the advertisement was
displayed;
 whether the advertisement was intended to be
displayed specifically to one or more particular groups
of recipients of the service and if so, the main
parameters used for that purpose (microtargeting
transparency);
 the total number of recipients of the service reached
and, where applicable, aggregate numbers for the
group or groups of recipients to whom the
advertisement was targeted specifically
 spend data
 financing sources
Code of Practice:
Commit to enable public disclosure of political
advertising (defined as advertisements advocating
for or against the election of a candidate or passage
of referenda in national and European elections),
which could include;
 actual sponsor identity; and
 amounts spent.
Commit to use reasonable efforts towards devising
approaches to publicly disclose "issue-based
advertising" (no definition)
Commit to encourage market uptake of tools that
help consumers understand why they are seeing
particular advertisements.
Guidance
Commitment to improve the completeness and
quality of the information in their repositories of
political ads, so that these effectively contain all
sponsored political content served.
These repositories should provide current, regularly
updated information on the volume and budget of
political ads served by political advertisers in the
Member States, the number of times each ad has
been displayed online, and the targeting criteria
used by the advertiser
External risk assessment, auditing and public
accountability
Guidance
Signatories should integrate relevant research to
improve the effectiveness of labels in informing
users.
Maintain and report on political ads policy (including on
targeting)
Microtargeting: “clean targeting” label501
/info to be
included on websites hosting banner ads
Code of Practice
Commit to encourage market uptake of tools that
help consumers understand why they are seeing
particular advertisements
Microtargeting limits Guidance
Commit to contribute to limit or avoid risk
associated with microtargeting of political and
issue-based ads
Full compliance with GDPR and other relevant
laws
Acquiring valid consent for collection of data
Informing individuals that they are being micro
targeted and what criteria and data is being used for
that purpose
Public interest information promotion Guidance
Promotion of public awareness and social
resilience.
A code of conduct for online advertising (Article 36 DSA)
Oversight
- Competent authorities and Digital Services
Coordinators
Code of Practice
Annual self-assessment reports, and further
cooperation with the Commission, including
501
Not specifically covered in the existing Code or Guidance.
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- Jurisdiction (country of origin), requirements and
powers
- Complaints and Penalties
- Cross-border cooperation and joint investigation
- European Board for Digital Services
- Additional tasks (where the designated competent
authorities already supervise the relevant
economic actors/services and the tasks of the
DSC can be adapted)
- Requirement to coordinate with additional
national competent authorities
- Additional enhanced supervision task to ensure
compliance with political ads initiative
responding to questions and making information
available upon request
Guidance
Regular reporting via harmonized template
ERGA to monitor implementation of Code at
Member State level
Definition of KPIs and provision of information on
KPIs
Creation of a Transparency centre, with regular
updating
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Table 9.3 – Detail of envisaged obligations introduced under policy options 1 and 2 of the transparency in political ads initiative, alongside
those anticipated for the DSA (baseline – in grey)
Obligation/actor502
Very large
online platform
(VLOPs)
Other online
platforms
Ad exchanges,
ad networks,
ad platforms
Other online
ad services
Other ad
services
Offline ad
publishers
DSA Pol.Ads DSA Pol.Ads DSA Pol.Ads DSA Pol.Ads DSA Pol.Ads Pol.Ads
Orders to provide information to national authorities on the basis
of an order – article 9 DSA
x x x (x) x (x) x (x) x
Provision empowering competent national authorities to make
orders to support disclosures relevant and required under the
political ads initiative
x x x x x x
Point of contact and legal representative – article 10 and 11 DSA x x x (x) x (x) x (x) x
Retain relevant basic information (client account number, amount,
data) on political ads transactions
x x x x x x
Participate in transaction data sharing (to enable complete
disclosures)
x x x x x
Traceability data – article 22 DSA [for third parties offering
services through platforms]:
 the name, address, telephone number and email address of
economic operator
 a copy of the identification document of the economic
operator
 the bank account details of natural person;
 [etc.]
x x
Political ads ‘know your client’ data (traceability data + ):
 where the advertiser is registered as a political campaign
or as a political candidate, the register in which the
advertiser is registered and its registration number or
equivalent means of identification in that register;
 undertaking that applicable national rules have been
complied with
x x x x
502
The DSA essentially groups the subjects of obligations into four groups: obligations applicable to all intermediaries, those applicable to hosting services, those applicable to
platforms (public facing hosting services) and those applicable to very large platforms. The categories of subject identified for the political ads initiative do not map perfectly to
this, but “Ad exchanges, ad networks, ad platforms” “Other online ad services” and “Other ad services” will usually fall under the DSA category of hosting service.
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 certification that relevant personal data was handled in a
manner which complies with the GDPR
User-facing transparency of online advertising (labelling) – article
24 DSA:
 that the information displayed is an advertisement;
 the natural or legal person on whose behalf the advertisement
is displayed;
 meaningful information about the main parameters used to
determine the recipient to whom the advertisement is
displayed (microtargeting transparency)
x x x x
User-facing transparency of online advertising (labelling) – extra
(where relevant):
 the name of any associated political campaign (plus
registration information where relevant)
 undertaking that a political (“issues”) ad not associated
with political campaign
 Indication on the face of the ad that it was targeted (going
beyond the DSA provision)
x x x x
Provide ad repository – article 30(1) DSA x x x
Interoperable repositories x x x
Ad repository transparency – article 30(2) DSA
 the content of the advertisement;
 the natural or legal person on whose behalf the advertisement
is displayed;
 the period during which the advertisement was displayed;
 whether the advertisement was intended to be displayed
specifically to one or more particular groups of recipients of
the service and if so, the main parameters used for that
purpose (microtargeting transparency);
 the total number of recipients of the service reached and,
where applicable, aggregate numbers for the group or groups
of recipients to whom the advertisement was targeted
specifically.
x x x
Ad repositories: spend and financial data transparency x x x
External risk assessment, auditing and public accountability –
articles 25 – 33 DSA
x
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Maintain and report on political ads policy (including on targeting) x x x x x x
Microtargeting: “clean targeting” label/info to be included on
websites hosting banner ads
x x
Microtargeting limits (specified below) x x x x
Public interest information promotion x x x
Code of conduct for online advertising – article 33 DSA x x x x x (?)
Oversight – articles 38-49
- Competent authorities and Digital Services Coordinators
- Jurisdiction (country of origin), requirements and powers
- Complaints and Penalties
- Cross-border cooperation and joint investigation
- European Board for Digital Services
x x x x x
Extension of oversight
- Additional tasks (where the designated competent
authorities already supervise the relevant economic
actors/services and the tasks of the DSC can be adapted)
- Requirement to coordinate with additional national
competent authorities
x x x x x x
Enhanced supervision for VLOPs (power to intervene to enforce
the DSA) articles 50-66 DSA
- Investigatory powers
- Fines
x
Additional enhanced supervision task to ensure compliance with
political ads initiative
x
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Table 9.4. Relevant EU-level governance bodies
Instrument Governance responsibility/powers
Digital Services Act 503
National designated Digital Services Authorities Member States shall designate one or more competent authorities, responsible for the application and
enforcement of the DSA. One of the competent authorities shall be designated as the Digital Services
Coordinator, responsible for ensuring coordination at a national level. The Member States in which the
main establishment of the provider of intermediary services is located shall have jurisdiction. If the
provider of intermediary services does not have an establishment in the EU, but offers services in the EU,
it will be under the jurisdiction of the Member State where its legal representative resides or is established.
If the provider of intermediary service does not have a legal representative, all Member States shall have
jurisdiction. In these cases, where a Member State decides to exercise jurisdiction it shall inform all other
Member States and ensure that the principle of ne bis in idem is respected.
Digital Services Coordinators shall have powers of investigation (to require within a reasonable time
period information relating to a suspected infringement, to carry out on-site inspections of premises, to ask
for explanations and to record the answers), and enforcement powers (to accept the commitments by the
providers and to make those commitments binding, to order the cessation of infringement and impose
remedies proportionate to the infringement and necessary to bring the infringement effectively to an end,
to impose fines and periodic penalty payments, to adopt interim measures to avoid the risk of serious
harm).
When all other powers have been exhausted, the infringement persists and causes serious harm, DSCs
shall also have the power to require the management body of the providers, within a reasonable time
period, to examine the situation, adopt and submit an action plan setting out the necessary measures to
terminate the infringement, ensure that the provider takes those measures, and report on the measures
taken and, where the DSC considers that the provider has not sufficiently complied with the requirements,
that the infringement persists and causes serious harm, and that the infringement entails a serious criminal
offence involving a threat to the life or safety of persons, request the competent judicial authority of that
Member State to order the temporary restriction of access of recipients of the service concerned by the
infringement or, only where that is not technically feasible, to the online interface of the provider of
intermediary services on which the infringement takes place.
Member States shall lay down the rules on penalties applicable to infringements of the DSA by
503
https://eur-lex.europa.eu/legal-content/en/TXT/?qid=1608117147218&uri=COM%3A2020%3A825%3AFIN
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providers of intermediary services under their jurisdiction. Penalties shall be effective, proportionate and
dissuasive. The maximum amount of penalties imposed for a failure to comply with the obligations laid
down in this Regulation shall not exceed 6 % of the annual income or turnover of the provider of
intermediary services concerned. Penalties for the supply of incorrect, incomplete or misleading
information, failure to reply or rectify incorrect, incomplete or misleading information and to submit to an
on-site inspection shall not exceed 1% of the annual income or turnover of the provider concerned.
Member States shall ensure that the maximum amount of a periodic penalty payment shall not exceed 5%
of the average daily turnover of the provider of intermediary services concerned in the preceding financial
year per day, calculated from the date specified in the decision concerned.
Where a Digital Services Coordinator has reasons to suspect that a provider of an intermediary service, not
under the jurisdiction of the Member State concerned, infringed this Regulation, it shall request the Digital
Services Coordinator of establishment to assess the matter and take the necessary investigatory and
enforcement measures to ensure compliance with this Regulation. Digital Services Coordinators may
participate in joint investigations, which may be coordinated with the support of the Board, with regard to
matters covered by the DSA, concerning providers of intermediary services operating in several Member
States. Where a Digital Services Coordinator of establishment has reasons to suspect that a very large
online platform infringed the DSA, it may request the Commission to take the necessary
investigatory and enforcement measures.
European Board for Digital Services The European Board for Digital Services is an independent advisory group of Digital Services
Coordinators on the supervision of providers of intermediary services. The Board shall advise the Digital
Services Coordinators and the Commission. The Board shall support the coordination of joint
investigations, support the competent authorities in the analysis of reports and results of audits of very
large online platforms to be transmitted pursuant to the DSA, issue opinions, recommendations or advice
to Digital Services Coordinators, advise the Commission to take measures, support and promote the
development and implementation of European standards, guidelines, reports, templates and code of
conducts as provided for in this Regulation, as well as the identification of emerging issues, with regard to
matters covered by the DSA.
European Commission The Commission, acting either upon the Board’s recommendation or on its own initiative after consulting
the Board, may initiate proceedings in view of the possible adoption of decisions in respect of the relevant
conduct by the very large online platform (VLOP) that is suspected of having infringed any of the
provisions of the DSA and the Digital Services Coordinator of establishment either did not take any
investigatory or enforcement measures or requested the Commission to intervene.
The Commission may require the VLOPs concerned, as well as any other persons acting for purposes
related to their trade, business, craft or profession that may be reasonably be aware of information relating
to the suspected infringement or the infringement, including organisations performing audits, to provide it
with relevant information. The Commission may conduct on-site inspections at the premises of VLOPs; it
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may issue fines; it may make binding the commitments made by the VLOP; it may also take interim
measures where there is an urgency due to the risk of serious damage for the recipients of the service.
E-Commerce directive504
- The directive does not establish any European-level governance body. It creates obligations for
Member States to have adequate means of supervision and investigation necessary to implement the
Directive effectively and to cooperate with other Member States, appointing one or several contact
points.505
The e-Commerce Directive also encourages the use of alternatives enforcement instruments such as codes
of conduct at the EU level or out-of-court dispute settlement schemes.
Regulation on cooperation between national
authorities responsible for the enforcement of
consumer protection laws (CPC Regulation)506
Competent Authorities and single liaison office Each Member State shall designate one or more competent authorities and the single liaison office that
are responsible for the application of this Regulation (which concerns other consumer protection laws).
Within each Member State, the single liaison office is responsible for coordinating the investigation and
enforcement activities of the competent authorities.507
Mutual Assistance Mechanism This Mechanism allows national competent authorities to request information and enforcement measures,
from another national competent authority.508
Coordinated Investigation and Enforcement
Mechanisms for Widespread Infringements and
for Widespread Infringements with a Union
Dimension
Where there is a reasonable suspicion that a widespread infringement or widespread infringement with a
Union dimension is taking place, competent authorities concerned by that infringement and the
Commission shall inform each other and the single liaison offices concerned by that infringement without
delay. The competent authorities concerned by the widespread infringement or widespread infringement
with a Union dimension shall coordinate the investigation and enforcement measures that they take to
address those infringements. They shall exchange all necessary evidence and information and provide
each other and the Commission with any necessary assistance without delay. Where appropriate, the
504
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32000L0031
505
Article 19 of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular
electronic commerce, in the Internal Market ('Directive on electronic commerce').
506
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32017R2394
507
Article 5 of the Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for
the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004.
508
Articles 11, 12, 13 and 14 of the Regulation.
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competent authorities may invite Commission officials and other accompanying persons, who have been
authorised by the Commission, to participate in the coordinated investigations, enforcement actions and
other measures.509
Recommendation on election cooperation
networks, online transparency, protection
against cybersecurity incidents and fighting
disinformation campaigns in the context of
elections to the European Parliament510
ECNE - European Cooperation Network on
Elections
Each Member State should set up a national election network, involving national authorities with
competence for electoral matters and authorities in charge of monitoring and enforcing rules related to
online activities relevant to the electoral context. The European Cooperation Network on Elections
(ECNE) should facilitate the swift, secured exchange of information on issues capable of affecting the
elections to the European Parliament including by jointly identifying threats and gaps, sharing findings
and expertise, and liaising on the application and enforcement of relevant rules in the online environment.
This forum provides the nucleus for real time European alert process and a forum for exchange of
information and practices among Member State authorities. The online application of offline rules relevant
to the electoral context, including inter alia measures to ensure transparency in online political advertising,
is listed as one of the ECNE’s objectives.
AudioVisual Media Services Directive511
Contact Committee A contact committee is established under the aegis of the Commission. It shall be composed of
representatives of the competent authorities of the Member States. The tasks of the contact committee
shall be to facilitate effective implementation of the Audiovisual Media Services Directive through regular
consultation on any practical problems arising from its application, to deliver opinions on the application
of the Directive by the Member States, to be the forum for an exchange of views, to discuss the outcome
of regular consultations which the Commission holds with representatives of broadcasting organisations,
producers, consumers, manufacturers, service providers and trade unions and the creative community, to
facilitate the exchange of information between the Member States and the Commission on the situation
and the development of regulatory activities regarding audiovisual media services, taking account of the
509
Chapter IV (Articles 15 to 25) of the Regulation.
510
C(2019) 5949 final, and ECNE terms of reference https://ec.europa.eu/info/sites/default/files/terms_of_reference.pdf
511
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013 and revised with https://eur-lex.europa.eu/eli/dir/2018/1808/oj
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Union’s audiovisual policy, as well as relevant developments in the technical field and to examine any
development arising in the sector on which an exchange of views appears useful. 512
Commission Decision on establishing the
European Regulators Group for Audiovisual
Media Services513
ERGA – European Regulators Group for
Audiovisual Media Services
The European Regulators Group for Audiovisual Media Services (ERGA) is an advisory body to the
Commission. The group’s task shall be to advise and assist the Commission, in its work to ensure a
coordinated and consistent implementation in all Member States of the regulatory framework for
audiovisual media services; to assist and advise the Commission, as to any matter related to audiovisual
media services within the Commission's competence.
Unfair Commercial Practices Directive514
- The directive does not establish any European level governance body.
Misleading and comparative advertising
directive515
- The directive does not establish any European level governance body. Member States shall ensure that
adequate and effective means exist to combat misleading advertising and enforce compliance with the
provisions on comparative advertising in the interests of traders and competitors.
Consumer Rights Directive516
- The directive does not establish any European level governance body.
Platform-to-Business Regulation517
- The Regulationdoes not establish any European level governance body. Member States are not
obliged neither to create new enforcement bodies (they can entrust existing authorities for ensuring such
an implementation) nor to provide for ex officio enforcement or to impose fines.
512
Article 29 of the Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation
or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive).
513
https://digital-strategy.ec.europa.eu/en/library/commission-decision-establishing-european-regulators-group-audiovisual-media-services.
514
https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1585324585932&uri=CELEX%3A02005L0029-20220528
515
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
516
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32011L0083
517
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32019R1150
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General Data Protection Regulation518
Supervisory authority Each Member State shall provide for one or more independent public authorities to be responsible
for monitoring the application of the Regulation. Each supervisory authority shall, on its territory,
monitor and enforce the application of the Regulation, handle complaints lodged by a data subject,
investigate, to the extent appropriate, the subject matter of the complaint and inform the complainant of
the progress and the outcome of the investigation within a reasonable period, in particular if further
investigation or coordination with another supervisory authority is necessary, cooperate with, including
sharing information and provide mutual assistance to, other supervisory authorities with a view to
ensuring the consistency of application and enforcement of the Regulation, conduct investigations on the
application of this Regulation, among other tasks. Each supervisory shall have investigative, corrective,
authorisation and advisory powers.
The lead supervisory authority shall cooperate with the other supervisory authorities concerned in an
endeavour to reach consensus; they shall exchange all relevant information with each other. The lead
authority may request at any time other supervisory authorities concerned to provide mutual assistance and
may conduct joint operations, in particular for carrying out investigations or for monitoring the
implementation of a measure concerning a controller or processor established in another Member State.
European Data Protection Board The European Data Protection Board is established as a body of the Union with legal personality. It is
represented by its Chair, and composed of the head of one supervisory authority of each Member State and
of the European Data Protection Supervisor. It shall ensure the consistent application of the Regulation,
advise the Commission on any issue related to the protection of personal data, issue guidelines,
recommendations, and best practices, encourage the drawing-up of codes of conduct and the establishment
of data protection certification mechanisms and data protection seals and marks, promote the cooperation
and the effective bilateral and multilateral exchange of information and best practices between the
supervisory authorities.
518
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R0679
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9.13. EU acquis on European Political Parties
European Political Parties (EUPPs) are regulated under the Regulation No 1141/2014 on
the statute and funding of European political parties and European political
foundations.519
The regulation provides certain limits to the use of public funds by
EUPPs, and financial reporting obligations guaranteeing that the funding and spending of
EUPPs is transparent to the public. It permits EUPPs to campaign at European level, and
requires EUPPs to obey relevant national rules when doing so.
Regulation 1141/2014 includes obligations relevant for online political advertising
conducted by EUPPs. These include yearly transparency obligations in relation to
donations and contributions, and in relation to the financing and expenditures for
electoral campaigns. These take the form of financial statements, later made available to
the general public by the European Parliament,520
and where the EUPPs traditionally
distinguish between expenditure on print, audiovisual and online ads. However, it is
unknown how many of these are political ads (in the sense of conveying a political
message – like issues ads do – as opposed to mere informational content such as when the
elections will be hosted), though the proportion is reported to be growing.521
Further,
while expenditure linked to the campaigns is to be clearly identified as such by the
EUPPs in their annual financial statements, this does not guarantee that the public can
identify with enough granularity what the resources spent in the campaign are or to which
demographics they are targeted, and interested actors and public authorities cannot hold
EUPPs accountable in real-time for their expenditures in online political advertising
during elections (the statements are provided more than a year after the money has been
used).
The Regulation does not address online political advertising directly – only with respect
to the rules regarding the application of funds. However, it restricts European political
foundations to applying their funds to an exhaustive list of tasks, which does not include
political ads – which means that in practice the foundations are prohibited from running
political ads. In addition, the Regulation prohibits EUPPs and foundations from financing
referendum campaigns.
Besides this, this regulation sets the conditions to qualify as a EUPP and foundation. Both
must observe, in particular in their programme and in their activities, the values on which
the Union is founded, as expressed in Article 2 TEU, namely respect for human dignity,
freedom, democracy, equality, the rule of law and respect for human rights. The
Regulation also provides for an Authority for EUPPs and European foundations,
established for the purpose of registering, controlling and imposing sanctions on these
entities. It further provides for an independent committee of independent eminent persons
which, when requested by the Authority, shall give an opinion on any possible manifest
and serious breach of the values on which the Union is founded, by a EUPP or a
European political foundation. In particular, it shall assess whether a EUPP or a European
political foundation has deliberately influenced or attempted to influence the outcome of
519
Regulation (EU, EURATOM) No 1141/2014 of the European Parliament and of the Council of 22 October 2014 on
the statute and funding of European political parties and European political foundations. https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A02014R1141-20190327
520
https://www.europarl.europa.eu/groups/accounts_en.htm
521
As reported in the Commission’s 2019 European Parliamentary elections report, p13.
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elections to the European Parliament by taking advantage of an infringement of the
applicable rules on protection of personal data. Where, in accordance with the
verification procedure, that is found to be the case, the Authority is to impose sanctions.
This is particularly relevant for political advertising following the Cambridge Analytica
case.
On applying for funding, EUPPs must provide evidence that their EU member parties
have, as a rule, published on their websites, in a clearly visible and user-friendly manner,
throughout the 12 months preceding the final date for submission of applications, the
political programme and logo of the EUPP.
In terms of governance, the Regulation clarifies that EUPPs shall be governed either by
the regulation itself, or, in matter not regulated by the regulation or matters only partly
regulated by it, by the law of the Member States in which the EUPPs and foundations
have their respective seats. However, the activities carried out in other Member States
shall be governed by the relevant national laws of those Member States. (This shows
how, in the absence of a common European legislation, EUPPs are subjected to different
national laws regarding the transparency of political advertising.)
Table 8.5. Mapping obligations for EU Political Parties under Regulation 1141/2014
and as amended under Regulation 2019/493
Definitions (Article 2)
‘European Political Party’
'European political foundation' means an entity which is formally affiliated with a EUPP, which is
registered with the Authority, and which through its activities, within the aims and fundamental values
pursued by the Union, underpins and complements the objectives of the EUPP by performing one or
more of the following tasks:
(a) observing, analysing and contributing to the debate on European public policy issues and on
the process of European integration;
(b) developing activities linked to European public policy issues, such as organising and
supporting seminars, training, conferences and studies on such issues between relevant
stakeholders, including youth organisations and other representatives of civil society;
(c) developing cooperation in order to promote democracy, including in third countries;
(d) serving as a framework for national political foundations, academics, and other relevant
actors to work together at European level;
Prohibition of funding (Article 22)
The funding of European political foundations from the general budget of the European Union or from
any other source shall not be used for any other purpose than for financing their tasks and to meet
expenditure directly linked to the objectives set out in their statutes.
The funding of EUPPs and European political foundations from the general budget of the European
Union or from any other source shall not be used to finance referendum campaigns.
Accounts, reporting and audit obligations (Article 23)
Within six months following the end of the financial year, EUPPs and European political foundations
shall submit to the Authority:
Their annual financial statements and accompanying notes, covering their revenue and expenditure,
assets and liabilities at the beginning and at the end of the financial year, in accordance with the law
applicable in the Member State in which they have their seat and their annual financial statements on
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the basis of the international accounting standards.
An external audit report on the annual financial statements, covering both the reliability of those
financial statements and the legality and regularity of their revenue and expenditure, carried out by an
independent body or expert.
The list of donors and contributors and their corresponding donations or contributions.
Conditions for registration (Article 3)
In order to be registered, a EUPP or European Political Foundation must observe, among other
requirements, the values on which the Union is founded, as expressed in Article 2 TEU, namely respect
for human dignity, freedom, democracy, equality, the rule of law and respect for human rights,
including the rights of persons belonging to minorities.
Sanctions (Article 27)
Removal of the EUPP or the European political foundation from the Register (losing legal status of
EUPP)
Financial sanctions
Exclusion from Union funding for up to five years (or ten years in cases of repeated infringements)
Responsibility of natural persons (Article 27a)
Where the Authority imposes a financial sanction, it may establish that a natural person is also
responsible for the infringement.
Authority for EUPPs and European political foundations (Articles 6 and 10)
An independent Authority is established for the purpose of registering, controlling and imposing
sanctions on EUPPs and European political foundations in accordance with the Regulation. The
Authority shall assess EUPPs’ compliance and shall decide on their registration and de-registration.
Committee of independent eminent persons (Article 11)
When requested by the Authority, the committee shall give an opinion on any possible manifest and
serious breach of the values on which the Union is founded, by a EUPP or a European political
foundation. To that end, the committee may request any relevant document and evidence from the
Authority, the European Parliament, the EUPP or European political foundation concerned, other
political parties, political foundations or other stakeholders, and it may request to hear their
representatives.
Verification procedure (‘Article 10a): If the Authority is informed of a decision of a national
supervisory authority under the GDPR finding that a natural or legal person has infringed applicable
rules on the protection of personal data, and if it follows from that decision, or if there are otherwise
reasonable grounds to believe, that the infringement is linked to political activities by a EUPP or a
European political foundation in the context of elections to the European Parliament, the Authority
shall refer this matter to the committee of independent eminent persons. The committee shall give an
opinion as to whether the EUPP or European political foundation concerned has deliberately influenced
or attempted to influence the outcome of elections to the European Parliament by taking advantage of
that infringement. The Authority shall decide whether to impose financial sanctions.
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Annex 9: Illustrative use cases
This Annex draws attention to the complexity and high costs falling upon economic
actors and political parties wishing to engage in cross-border advertising services, in the
present state of non-harmonised national obligations related to political advertising
activities. A number of use cases are provided to illustrate issues that can arise, including:
additional costs, tensions or legal uncertainty regarding the applicable rules for the
provision of cross-border services; demanding compliance efforts (such as training
personnel, complying with different information obligations in the various Member
States, requiring legal advice, or even refraining from offering cross-border services);
potential problems regarding the control and enforcement of national laws by the relevant
authority, and circumvention issues.
The scenarios below envisage the provision of various advertising services from one
Member State (MS A) to another (MS B), with one particular economic actor of the ad
chain in focus (it may be a service provider, an ad intermediary, a social media platform,
a political consultancy or communications agency, a website; it can be online or offline).
Each use case is presented in the form of a table, where the relevant obligations
applicable to both the political party and the economic actor are highlighted.
Some use cases (such as 1 & 2) are to be read together, as they contrast one cross-border
scenario with its reverse, highlighting the difference in terms of applicable obligations,
costs and constraints – and in particular, where applicable, the fact that a service is
possible from MS A to MS B but not from MS B to MS A.
Scenarios
1) SI service provider of online political advertising providing its services to HR
political party
From perspective of service provider
in MS A
From perspective of political party in MS B
Under Slovenian legislation, the
Slovenian service provider can provide
its services to a Croatian political party
outside elections period and during pre-
election campaigns.
To illustrate, during the 2019 EP
elections, there was political advertising
expenditures from Slovenia to Croatia,
which amounted to €130,300.522
HR covers political ads by the broader concept of “election
campaign”. Political actors are to report on their expenses
on social platforms (indicating the name of the social
network): The report on costs (expenses) referred to in
paragraph 4 of this Article shall include the costs of advertising
the election campaign on social networks and the costs of
media advertising, the latter of which shall be detailed in the
report on media advertising of the election campaign referred
to in Article 12 of this Ordinance.523
522
Source: underlying study, table 2 (Bilateral cross-border expenditure in the 2019 EP elections).
523
Ordinance on the manner of keeping records, issuing certificates and entering reports on financing political
activities, election campaigns and referendums in the information system for financing supervision (Official Gazette
71/19).
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2) HR service provider of online political advertising providing its services to SI
political party
From perspective of
service provider in MS A
From perspective of political party in MS B
The Croatian service
provider can provide its
services to a Slovenian
political party outside
elections period and during
pre-election campaigns,
whereas in Croatia,
advertising is not
permitted for political
parties, coalitions and
independent
representatives, except
during election campaigns
in accordance with a
special law (art. 30 of the
Electronic media act).
The principal piece of legislation governing political advertising is the
Election and Referendum Campaign Act. There is a special act governing
provisions on public radio and television during the campaign periods
(Radiotelevizija Act). On financing, the Political Parties Act is also
important. There is no legislation governing specifically online political
advertising.
Political advertising is defined by Article 25 of the Slovenian Advertising
Codex adopted by the Slovenian Advertising Chamber: “Any advertising
during elections, referendums or related political activities in accordance
with the applicable regulations governing this area”.
Paid political advertising outside elections period and during pre-
election campaigns is allowed in Slovenia.
While the costs of the election campaign are legally limited as they may not
exceed the maximum allowable expenditure, the costs outside the election
campaign for spending on advertising is unlimited.
These rules (on costs) apply to all political advertising, with no
distinction between "offline" and "online" political advertising.
All propaganda that could change the opinion of voters is forbidden during
the "election silence". The posting of new posters during the election silence
is forbidden. Since the 2016 Supreme Court judgment, the election silence
applies only to organisers of election campaigns, political parties and
candidates (case IV Ips 31/2016). These rules are also applicable and
enforced online.
There are no particular Slovenian rules applicable to online platforms and
intermediaries such as social media: The same rules apply to online platforms
as for offline media.
[In Croatia, there are no specific regulations on online advertising during the
pre/election period. The Electronic Media Act provides for general
provisions on online publications, however they do not apply to social
media.]
3) BE service provider of online political advertising providing its services to FR
political party
Instrument From perspective of service provider in MS A From
perspective of
political party
in MS B
French
legislation
The FR rules are quite strict
FR Electoral Code can be considered to define online political
advertising in Article L48-1, which specifies that the prohibitions and
restrictions rules on electoral propaganda are applicable to any message
having the character of electoral propaganda disseminated by any
means of communication to the public by electronic means. It must
be underlined that the ban on distributing publicity for propaganda
FR rule Art. L-
52-16 : No form
of commercial
advertising may
be used for
electoral
purposes for the
214
purposes prohibits the commercial referencing of a website in a search
engine prior to an election, but not the creation of a website that is only
accessible to voters who visit it intentionally.
Article L. 163-1 of the Electoral Code imposes on online platform
operators transparency obligations relating to the promotion of
information content linked to a debate of general interest. As such,
online platforms and intermediaries whose number of connections
on French territory exceeds 5 million unique visitors per month on
average per year must provide the users with fair, clear and transparent
information on the identity of the private person or the company,
which pays to the platform for the promotion of information content
related to a debate of general interest (décret No 2019/297 du 10 avril
2019).
Online platforms and intermediaries must also make public the amount
of the remuneration received for the promotion of such content when
the amount exceeds a specific threshold. This information must be made
available to the public in a register, regularly updated during the
campaigning period. It is perfectly legal for a political party, candidate,
or campaign to have a website, a Facebook page, a Twitter account, or
any similar internet presence, but it is illegal to pay for political
advertising during the period that runs from the first day of the sixth
month before an election, up to the end of the election. For example, the
first round of the last French presidential election took place on 23 April
2017, and the second round took place on 7 May 2017. From 1 October
2016, until the closing of the last polling station on 7 May 2017, the
candidates and their campaigns were prohibited from buying ads on the
internet. This includes not only banner ads, but also other advertising
techniques such as paid referencing, sponsored links, or the purchase of
key words on search engines.
Law against the dissemination of false information of 22 December
2018:
Online platforms are required to establish a way for users to flag
false information likely to disturb public order or alter the sincerity
of elections, especially when it is in content promoted for a third party.
This method of flagging false information must be “easily accessible and
visible.” Furthermore, online platforms are encouraged to take measures
such as
 improving the transparency of their algorithms,
 promoting content from press agencies and radio and television
services,
 fighting against accounts that massively disseminate fake
information,
 informing users of the identity of the person(s) or
organization(s) that bought paid content related to “a debate of
national interest,”
 informing users of the nature, origin, and manner of
broadcasting content, and
 educating people about the media and information.
Article 13: Online platform operators must designate a legal
representative in France to serve as a point of contact for the
application of these provisions
Some provisions of this law aim to improve transparency for political
benefit of a
candidate or a
list of candidates
without the
express consent
of the candidate,
the person
responsible for
the list or their
duly qualified
representative.
215
advertising on the internet. Specifically, the law amended the Electoral
Code to provide that online platforms with at least five million unique
visitors per month must, during the three months preceding the first
day of a month during which a national election is scheduled, and
until the end of that election, provide users with “faithful, clear, and
transparent information on the identity” of the person(s) or
organisation(s) that bought paid content related to “a debate of
national interest.” Additionally, during that same time-frame, online
platforms are required to give their users “faithful, clear and
transparent information on the use of their personal data in the
context of promoted information content related to a debate of
national interest.” Furthermore, during the same time period, online
platforms that are paid €100 or more per sponsored content must make
the payment amount public. Failure to abide by these requirements is
punishable by up to one year in jail and a fine of €75,000.
GDPR If personal data is processed, the GDPR applies, meaning certain
obligations fall on the controller. In particular, depending on the kind of
service offered by the Belgian service provider, and in particular
depending on the extent to which either side defines the means and
purposes of the processing, either the political party will be the data
controller and the service provider its processor, or they will both be
joint controllers.
Of particular relevance here is the French DPA’s guidance524
on political
parties’ processing of personal data originating from social media. The
DPA distinguishes between two categories of relevant social media
users: the users who are in ‘regular contact’ with the political party (e.g.
those who ‘follow’ an political actor’s social media page, if the said page
duly informs them about the data collected, the purpose, and how to
object), and the users who have merely an ‘occasional contact’ with the
party (e.g. they merely ‘liked’ one of its social media posts). The DPA’s
guidance indicates that the consent of regular contacts (with due
transparency on the aims, means, etc. of the processing, and due
respect to other GDPR obligations) is enough for the political party
to process their personal data for
- sending them messages of political nature.
- enriching and cross-matching the party’s database about its
supporters (those that are regular contacts) on social media.
- profiling and targeting them.
As it intends to rely on the Belgian service provider to process its regular
contacts’ data as part of its electoral strategy, the French political party
must have duly respected transparency requirements under GDPR article
13. In particular, prior to providing their consent, these ‘regular contacts’
must have been informed about the purposes of the processing and the
recipients or categories of recipients of the personal data (the BE service
provider). Depending on the role of the Belgian service provider (i.e. if it
is a joint controller, not a data processor), it may have to take
appropriate actions to ensure these information obligations are
fulfilled.
The Belgian
DPA’s
guidance525
is
relatively similar
to the FR on this
topic.
As long as they
are duly
informed and are
able to object
anytime, the
data subjects’
consent is not
required if there
is an existing
relation between
them and the
party.
However, the
guidance only
mentions this for
the purpose of
“presenting the
person with
political
propaganda
within the
framework of
elections” (thus
not for profiling,
enriching
databases, etc.)
524
https://www.cnil.fr/fr/communication-politique-quelles-sont-les-regles-pour-lutilisation-des-donnees-issues-des-
reseaux
525
https://www.autoriteprotectiondonnees.be/publications/note-juridique-sur-les-elections.pdf
216
4) FR service provider of online political advertising providing its services to BE
political party
Instrument From perspective of service provider
in MS A
From perspective of political party in MS B
Belgian
legislation
There are no particular rules
concerning online platforms (social
media) for political advertising.
There is no definition of online
political advertising.
The Vlaamse Regulator voor de Media
recommends imposing transparency
obligations such as found in the Code of
practice to tackle the spread of online
disinformation and false information.
Political parties are free to use online platforms
(social media) for political advertising / self-
promotion.
Law of 4 July 1989. - Loi relative à la limitation
et au contrôle des dépenses électorales [engagées
[pour l'élection de la Chambre des
représentants], ainsi qu'au financement et à la
comptabilité ouverte des partis politiques.
Art. 2: Paid political ads are allowed during pre-
election campaigns. No party is allowed to
spend more than EUR 1 Mio for an election
campaign. According to VVA, these rules are
not specifically applicable/enforceable online.
Art. 4 §3 9° indeed states that « The following are
not considered as election propaganda expenses:
expenses relating to the creation, adaptation and
management of Internet applications»
Art. 4 provides for the definition of electoral
propaganda expenses as being all expenses and
all financial commitments relating to verbal,
written, audio and visual messages, intended to
favourably influence the result of a political party
and its candidates and issued within four months
preceding the elections. Yet, there is no specific
definition of online political advertising.
GDPR The Belgian DPA’s guidance526
indicates that political parties do not
need the data subjects’ consent to serve
them “political propaganda within the
framework of elections” when these are
in regular contact with the party (e.g.
members) – provided they duly
informed about the purposes of the data
processing and are able to object to it
anytime.
Despite being in the same spirit, the
French DPA’s guidance527
is less
permissive, as it requires consent for
targeting these regular contacts with
political ads.
In their contractual arrangement
(between controller and processor), the
BE party and the FR service provider
526
https://www.autoriteprotectiondonnees.be/publications/note-juridique-sur-les-elections.pdf
527
https://www.cnil.fr/fr/communication-politique-quelles-sont-les-regles-pour-lutilisation-des-donnees-issues-des-
reseaux
217
will have to be clear with each other:
the BE party about what it wants the
service provider to do, and the FR
service provider about what it is legally
allowed to do.
In consequence: The BE political party
is in practice incentivised (but not
obliged) to rely on the services of a BE
service provider instead of on the
services of a FR service provider,
because the FR one requires the
political party to collect its regular
contacts’ consent – whereas the BE
doesn’t.
5) Online social media platform established in France wishes to offer politically-
targeted political ads528
to ad agency in Spain, for circulation in Spain.
This use case lists the obligations that fall upon two economic actors under the GDPR, AVMSD
and DSA.
As the GDPR is a Regulation, the same obligations apply in ES as in FR. The ES rules on the
processing of sensitive personal data are more restrictive than the FR rules, however, and this
impacts what kind of cross-border advertising services can be offered. This is specifically
permitted by the GDPR . It is a limited example of where there could be some tensions in the
legal framework applicable to market actors and one where we there is a possibility of the
national rule being circumvented in a cross-border context.
Instrument From perspective of platform (publisher) in
France
From perspective of ad agency (advertiser) in
Spain
GDPR The GDPR rules on personal data processing
apply.
The creation and use of a social media account
involves the disclosure of a number of
attributes, which may include name, date of
birth, gender, place of residence, or political
interests, for instance. This personal data can be
used by the platform to develop criteria, based
on which specific ads will be addressed at the
users.
To target users with political ads, the platform
must first comply with data processing
principles (e.g. fairness, data minimisation,
accountability) and have a valid legal basis
(consent, as per the EDPB Guidelines on the
targeting of social media users, p18, p32).
Article 9 GDPR prohibits the processing of
The EDPB Guidelines on the targeting of social
media users state (para 117) that “If a targeter
engages a social media provider and requests
that the social media provider targets users
based on a special category of data, the targeter
will be jointly responsible [i.e. a joint controller]
with the social media provider for the
processing of the special category data.”
The Spanish ad agency is therefore a joint
controller in this case, and will have to respect
the GDPR’s rules and fulfil its relevant
obligations (cf. column on the left).
However, a Spanish enactment taken to adapt
national laws to the GDPR, the Organic Law on
Protection of Personal Data and Guarantee of
Digital Rights, includes a provision which
affects the conditions for giving consent as an
528
Politically-targeted political ads are targeted based on sensitive data (GDPR article 9, ‘special categories of data’).
They are a sub-set of the broader category of political targeted ads, which could also be targeted based on non-sensitive
data, e.g. one’s age or location (if the latter is not used as a proxy for political opinions).
218
special categories of personal data, including
personal data revealing political opinions,
unless one relies on one of the exemptions
listed in the article. The EDPB Guidelines on
the targeting of social media users indicate
(p18, p32) that the only adequate exemption for
processing special category of data for
targeting purposes would be the data subject’s
explicit consent.
The French social media provider must
therefore have been very transparent toward the
user about the processing of personal data and
the serving of targeted ads on its platform. The
consent it has queried from the social media
users must have been explicitly about the
processing of (well-defined and limited
categories of) the users’ personal sensitive
personal data, for the (limited) purposes of
profiling them and targeting them with political
ads. (Blanket collection of data, for vaguely-
defined or broad purposes is not allowed in
view of the fairness, purpose limitation and
data minimisation principles.)
The EDPB Statement 2/2019 on the use of
personal data in the course of political
campaigns indicates that affecting a person's
vote in an election through automated decision-
making counts as a legal effect, and that
“Profiling connected to targeted campaign
messaging may in certain circumstances cause
‘similarly significant effects’.” In light of this,
article 22 GDPR (automated decision-making)
applies. Because of that, the platform must
always facilitate the social media users the
exercise of their right to withdraw consent and
not to be subject to the processing any more.
In view of the above, the platform must also
have conducted a Data Protection Impact
Assessment (article 35(3)(a) and (b))
beforehand.
To fulfil the requirements of Article 15 GDPR
(right of access) and to ensure full transparency
in this context, the measures of the social media
provider to facilitate the exercise of this right
should include the implementation of a
mechanism for data subjects to check their
profile and how they have been profiled,
including details of the information and sources
used to develop the profile (EDPB Guidelines
appropriate legal basis for the processing of
sensitive data (article 9). More specifically, the
law states that, “For the purposes of Article
9(2)(a) of Regulation (EU) 2016/679, in order to
avoid discriminatory situations, the sole
consent of the data subject shall not be
sufficient to lift the prohibition on the
processing of data the main purpose of which
is to identify their ideology, trade union
membership, religion, sexual orientation, beliefs
or racial or ethnic origin.”
Political parties may not use the explicit
consent legal basis, nor the public interest
legal basis previously entrenched in the national
electoral law (LOREG Art. 58 bis, struck down
by the Spanish Constitutional Court), but may
target electoral propaganda based on the
processing of sensitive data during electoral
periods if such data is explicitly made
publicly available by the data subject. The
Spanish DPA further forbids microtargeting that
attempts to divert [desviar] the will of voters, as
well as profiling at individual level or on the
basis of very specific personal characteristics.529
It is is hence very difficult in practice for
Spain-based companies legally to sponsor
political ads targeted based on people’s
political opinions.
However, following the e-Commerce directive,
if a service complies with the law in MS A, it
may circulate to MS B. The France-based
platform is therefore itself in theory not
barred from processing the Spanish
residents’ sensitive personal data and
targeting them, something that Spain-based
companies cannot do except as processor
(neither to residents of Spain nor to residents of
any other MS).
The Spanish advertiser being a joint controller
in this case, it must respect its obligations under
the (Spanish) GDPR and therefore cannot
circumvent the Spanish ‘rule’ on politically-
targeted political ads by relying on a non-
Spanish Platform. Further, as a joint controller,
the Spanish advertiser must ensure that the
French social media platform is aware of the
relevant obligations the advertiser has. The
platform is therefore unable to provide the
intended service to the advertiser in this case
529
Circular 1/2019, de 7 de marzo, de la Agencia Española de Protección de Datos, p4.
https://www.boe.es/boe/dias/2019/03/11/pdfs/BOE-A-2019-3423.pdf
219
on the targeting of social media users, para
100) as well as the logic involved in any
automated decision-making system used by the
controller. Data subjects shall further have
access to information including on the source
of personal data that was not collected from
them, and on “the recipients or categories of
recipients to whom the personal data have been
or will be disclosed [if any], in particular
recipients in third countries or international
organisations.”
Data subjects also have a right to rectification
and erasure of their data: the measures to
facilitate the exercise of their rights should
include a mechanism enabling them to access,
rectify and erase directly the interest categories
with which they have been assimilated by the
social media platform.
In the context of targeted advertising, the
platform and the advertiser may be joint
controllers according to the GDPR (Article 26).
It needs to be assessed and, if this is the case,
the responsibilities of each side must be
adequately and clearly distributed (e.g. in
practice, the French platform will be the one
tasked with collecting the data subjects’
consent). With joint controllership, the data
subjects should be able to learn from the
platform the identity of the joint controller they
are not in contact with (the advertiser), the
essence of the arrangement between the joint
controllers, and how to exercise their rights,
because they can exercise their rights in respect
to and against each of them.
– which would not be the case if the
advertiser were not Spain-based, even if the
ads were still for circulation in Spain.
Spanish platforms and targeters suffer a
competitive disadvantage, since there is a
limitation on the provision of cross-border
services (politically-targeted political ads) by
and to Spanish-based entities. Non-Spanish
entities can circumvent the national rule if
they don’t involve Spanish entities in the
processing. Further, this situation creates a lack
of legal clarity for platforms desiring to
offer/receive cross-border services to/from
Spain.
This case shows that attempts at regulating
political targeting itself at the national level
would be very ineffective in terms of protection
and destructive in terms of market growth; if
regulation is necessary, it should be done at EU
level.
To summarise, the existence of this difference
regarding the processing of sensitive data in
Spain has the following potential effect:
1. A limitation on the provision of certain
kinds of cross-border targeted political
ad services to and from Spain-based
entities (intended as a safeguard for the
protection of Spanish residents).
2. A lack of legal clarity regarding the
provision of these cross-border
services.
3. Extra compliance costs for Spain-based
entities, as well as for the market
players willing to engage with Spain-
based entities (e.g. need for substantial
legal advice to mitigate legal risk).
4. Risk of regulatory arbitrage: non-
Spanish market players are able to
circumvent the limitation that applies
to Spain-based entities – if their
personal data processing does not rely
on these entities.
5. Unintended disadvantage for Spain-
based market actors which, unlike
actors from other Member States, are
unable to offer cross-border politically-
targeted political advertising services
(anywhere in the EU).
AVMSD If the ad is audiovisual material of a
commercial nature, the platform must:
- Mention the name, address, email address
of the media service provider, as well as
identify the competent supervisory
authority.
220
- Label the ad (i.e. identify it as a product
placement).
- Make sure that the ad respects the
limitations regarding hate speech and
harmful messages.
DSA The platform has user-facing transparency
obligations:
• stating the information displayed is an
advertisement.
• the natural or legal person on whose behalf
the advertisement is displayed.
• meaningful information about the main
parameters used to determine the recipient to
whom the advertisement is displayed.
It must also retain and display it in an ad
repository, specifying:
• the content of the advertisement.
• the natural or legal person on whose behalf
the advertisement is displayed.
• the period during which the advertisement
was displayed.
• whether the advertisement was intended to
be displayed specifically to one or more
particular groups of recipients of the service
and if so, the main parameters used for that
purpose.
• the total number of recipients of the service
reached and, where applicable, aggregate
numbers for the group or groups of
recipients to whom the advertisement was
targeted specifically.
6) Ad agency in MS A is commissioned by a Maltese political party to run political
ads, for circulation in MS A and in Malta.
Instrument/Obligations From perspective of ad
agency in MS A,
circulating ads in MS A
From perspective of ad agency in MS A,
circulating ads in Malta
National laws MS A’s laws apply, the
ad agency can run the ads
following the relevant
national requirements
The Foreign Interference Act530
forbids political
ads by ‘aliens,’ i.e. non-Maltese citizens, even
if they are EU citizens. Aliens are forbidden
from performing, doing, holding, taking part in,
aiding or abetting, or allowing any restricted
activity in Malta.
The ad agency is able to run the Maltese ads in
MS A, but not in Malta.
7) FR service provider of offline political advertising (broadcasting) providing its
services to BE political party
530
https://europam.org/data/mechanisms/PF/PF%20Laws/Malta/Malta_Foreign%20Interference%20Act_1982.pdf
221
Instrument From perspective of service provider
in MS A
From perspective of political party in MS
B
Belgium
legislation
Art. 5 of the BE Law of 4 July 1989
provides that during the 4 months
preceding the date of the elections,
the political parties and the candidates,
as well as third parties wishing to make
propaganda for political parties or
candidates, may not distribute
commercial advertisements on radio,
television and in cinema.
At the same time the Law of 4 July
1989 explicitly allows the broadcasting
on radio or television of programmes
containing opinions or comments, if
these programmes are carried out in the
same way and according to the same
rules as outside election periods,
without or without remuneration.
It also allows the broadcasting on radio
or television of an election programme
or of a series of election programmes,
provided that representatives of the
political parties may take part in these
programmes.
Finally, it is permitted to have radio or
television broadcasting of election
programmes, provided that their
number and duration are determined
according to the number of
representatives of political parties in
legislative assemblies
1) BE Loi of 4 July 1989. - Loi relative à
la limitation et au contrôle des dépenses
électorales [engagées [pour l'élection
de la Chambre des représentants]],
ainsi qu'au financement et à la
comptabilité ouverte des partis
politiques.
Art. 2: Paid political ads allowed during
pre-election campaigns. Maximum spend:
EUR 1 Mio.
Art. 4 provides for the definition of electoral
propaganda expenses as being all expenses
and all financial commitments relating to
verbal, written, audio and visual messages,
intended to favourably influence the result
of a political party and its candidates and
issued within four months preceding the
elections. Yet, There is no specific definition
of online political advertising.
Art. 5: during the 4 months preceding the
date of the elections, the political parties
and the candidates, as well as third
parties wishing to make propaganda for
political parties or candidates, may not to
distribute commercial advertisements on
radio, television and in cinema.
2) BE Regulation – Règlement relatif aux
programmes de radio et de télévision en
période électorale
The Regulation applies to all elections
organised in Belgium, i.e. federal legislative
elections, regional elections, European
elections and municipal and provincial
elections. They are addressed to all
audiovisual media services publishers under
the French Community of Belgium. They do
not apply to the services disseminated on
open platforms, published by or on behalf of
candidates, lists, ideologies or parties and
openly dedicated to the electoral
communication thereof. They apply during
the three months preceding the ballot, except
in the case of early elections, where this
period may be brought back to 40 days
(federal legislative elections and regional
elections) or 50 days (local elections) before
the poll. Publishers are responsible for
complying with this Regulation for all
programs disseminated on the services they
assume editorial responsibility. If an
audiovisual media service publishers covers
222
the election campaign on a social network
account open to its name, or on behalf of
one of its services, the Regulation applies to
the production of the audiovisual contents
distributed therein.
AVMSD Article 3: Member States shall ensure
freedom of reception and shall not
restrict retransmissions on their
territory of audiovisual media services
from other Member States for reasons
which fall within the fields coordinated
by this Directive.
8) BE service provider of offline political advertising (broadcast) providing its
services to FR political party
Instrument From perspective of service provider in
MS A
From perspective of political party in MS
B
French
legislation
The service provider cannot propose its
services to French political parties during
the pre-election period but only during the
‘campaigning period’ (second Monday
before polling day – ending the day before
polling day at midnight = Art. L47A of
Electoral Code). During the six months
prior to an election (pre-election period)
and until the date of the ballot when it is
acquired, the use, for the purposes of
electoral propaganda, of any process of
commercial advertising in the press or in
any means of audio-visual communication
is prohibited. (Art. L52-1 of Electoral
Code).
Promotional audio-visual programmes
of a political nature are prohibited at all
times, including during pre-elections
period (Article 14, para 2 and 3 of Law No
86-1067 of 30 September 1986 on freedom
of communication).
During the six weeks preceding polling
day, audio-visual media, in particular, the
publishers of radio and television
services must, in their election coverage,
ensure that the candidates and their
supporters “are presented fairly and
given fair access to airtime” (Resolution
No 2011-1 of 4 January 2011 relating to
the principle of political pluralism in radio
and television services during the election
period). News coverage unrelated to the
election remains subject to these rules.
For French offline service providers:
During the electoral campaigns, the
broadcasts of the public audio-visual
communication services shall be made
available to political parties and groups
(Article L167-1 of the Electoral Code).
In particular, for the first ballot, a
transmission time of seven minutes shall
be made available to each party or
political group. For broadcasts preceding
the second ballot, a five-minute broadcast
period is made available to the same
parties and political groups. In addition,
the expenses related to the official audio-
visual campaign are the responsibility of
the State.
AVMSD Article 3: Member States shall ensure
freedom of reception and shall not restrict
retransmissions on their territory of
223
audiovisual media services from other
Member States for reasons which fall
within the fields coordinated by this
Directive.