France proposes clarifications and additions in new rulebook for political ads

The French Presidency of the EU Council has issued a compromise text on the legislation on online political advertising, clarifying the scope of the rules. 

The document, obtained by Contexte and dated 3 June, includes additions detailing what is considered to constitute a political advertisement, the bodies to which the regulation does and does not apply and its relationship with existing EU and national law covering electoral periods.

The regulation was proposed last year with the aim of establishing a more concrete framework for transparency and data use in political advertisement, an area under increasing scrutiny in the wake of high-profile controversies such as the Cambridge Analytica Scandal.

The Commission published the proposal in November in the hopes of having the law in place by spring 2023, ahead of the next round of European Parliament elections in 2024. 

EU Commission presents new rules for political ads

The European Commission launched a proposal to regulate political advertising, introducing transparency obligations for marketers and strict limits to the use of sensitive personal information.

The proposal was published on Thursday (25 November) to protect the electoral process and democratic debate …

The draft includes a new article outlining the criteria on which a political advertisement should be identified, including the message’s content, objective and sponsor and the language used to convey it, as well as the context in and duration for which it is disseminated.

The definition of political advertising provided in the text has also been updated to include material that is “promoted”, not just published or disseminated by or for political actors. Additionally, the text specifies that this definition refers to advertising designed to impact elections, referendums and votes across a range of areas, from EU to national, regional, local and party levels. 

The requirement that a “clear and substantial link” must be found between the message in question and the potential for it to influence the outcome of a vote or voting behaviour has also replaced previous wording, which stipulated that the content needed to be identified as “liable” to have such an impact. 

Also clarified is the definition of political actors. Under the draft text, this concept includes all “candidates for or holders of any elected office” along with members of government at European, national, regional and local levels, as well as political organisations set up with the aim of achieving a specific outcome in an election or referendum. 

The EU Court of Justice, the European Central Bank and the EU’s Court of Auditors, however, are excluded. 

New articles have also been added to clarify what constitutes political ad publishers and sponsors. Under the new provisions, publishers are to be understood as “normally at the end of the chain of service providers” publishing and disseminating political ads and sponsors are those on behalf of whom the advertising is occurring, such as electoral candidates or political parties. 

The text also solidifies measures pitched by the French Presidency in a compromise text earlier this year on responding to notifications about ads. Under these new articles, in the month preceding a vote, publishers will have a reduced time period of 48 hours in which to address any notifications received about advertisements. 

It stipulates, however, that any action publishers do take must be “strictly targeted”, serving to “correct, complete or remove” non-compliant content in order to respect fundamental rights including freedoms of expression and information. 

France pitches urgent reporting for political ads before elections

Political ad providers in the European Union will have 48 hours to address notifications and provide information about political ads in the month leading up to votes, under the compromise text on the EU directive regulating political ads. 

In order to fulfil their transparency obligations, publishers will be required to contact the providers and sponsors of the material when concerns are raised. Where correct information cannot be swiftly accessed, publishers will be required to discontinue the publication or dissemination of the ads.

Very large online platforms have also been asked to make available via online repositories information about the ads they publish, as outlined in the Digital Services Act, a recently approved EU regulation on online content.

Under the draft text, this will be required to happen in real-time and to contain specific details such as the reason for the withdrawal of an advertisement. 

The regulation as a whole, it is also noted, should not impact the content of existing rules at an EU or member state level on the presentation of political advertising, electoral periods or campaign conduct, including advertising bans. 

The draft is reportedly set for discussion at tomorrow’s (8 June) Coreper I meeting.

[Edited by Luca Bertuzzi/Nathalie Weatherald]

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