EU policymakers face a challenge in agreeing the political ads regulation
But despite being a valuable tool, growing concerns around misinformation, voter manipulation, foreign influence and lack of transparency have turned the spotlight onto who advertises to European citizens and how.
With the next European elections just a year away, the EU’s proposal for regulating political ads is extremely timely.
Yet the current proposal – which is set to be debated in trilogues starting this week – could have a number of unintended consequences for both civil society and political parties.
- The proposal is unlikely to be effective and will quickly be out of date
The so-called trilogue is the next step in the process, bringing together representatives of the Parliament, Council and the Commission to jointly discuss the legislative file.
The trilogue is led by the Swedish Presidency, which has indicated a desire to postpone – diminishing the prospect of the file being finalised before next year’s elections.
But even if the new EU legislation were to be adopted in the immediate future, it is unlikely to be effective in addressing significant new technological challenges, such as advances in AI and the creation of deep fakes. In the US, the American Association of Political Consultants recently called for a ban on AI-generated political ads due to the obvious dangers of misuse and Washington state became the first state to enact legislation, requiring political advertisements that use synthetic media or AI to disclose that information on the ads.Advertisement
The file could thus quickly become out of date and need to be overhauled again in just a few short months – or worse, be out of date by the time of implementation.
- "Better safe than sorry" is not a good principle for regulating freedom of expression
The current proposal requires online platforms to respond within 48 hours to every post in the month before an election. With an even greater volume of content in an election period, it would be virtually impossible for all posts to be thoroughly reviewed within this short timeframe. Therefore, a significant amount of legitimate content will be removed without proper review.
The proposal also obliges publishers of political advertisements to put in place a mechanism allowing individuals to notify them if a particular advertisement does not comply with the rules. This would be open to abuse and manipulation by organised groups, both inside and outside the EU, further limiting freedom of expression and stifling political debate. For example, political opponents could flag each other’s content online.
To combat this, utilising ‘trusted flagger’ provisions such as those in the Digital Services Act, and prioritising flags from these trusted flaggers for review within the 48-hour deadline could be vastly more manageable and diminish the risks of overcompliance.
Of course, such accredited individuals and organisations would need to be limited in number and genuinely trusted to guard against the potential for political opponents to sabotage each others’ campaigns. But this is one of the many options that could improve the regulation.
- What falls under the definition of "political advertisement" matters
Finally, what is a political advertisement? If it is paid for by a political actor with the intention of influencing the outcome of an election, then it should clearly fall under the EU’s new proposed rules.
But what about a paid campaign by an NGO encouraging citizens to vote for parties that prioritise the climate? And what about a private individual expressing their views on social media?
The further away you get from the first example, the more important it is to narrow the definition of a political advertisement.
Moreover, defining unpaid content, which can be created by individuals, as political advertising, as is the case in the current proposal, poses a threat to freedom of expression. Unfortunately, the currently proposed imprecise definition of political advertising would mean that any person or group expressing views on social issues online would fall under the new legislation.
The EU faces a challenge: moves to regulate political advertising are important, and vital for democracy. But, as policymakers head into the trilogues, there remain a number of unresolved questions about how the regulation will work, and whether it could in fact hinder democracy rather than help.
Combined with the potential for delay, the pace of technological advancement, and the forthcoming European elections, policymakers face a significant challenge to get this right.
Sebastián Rodríguez is an expert on European political campaigns. He is writing this article in his personal capacity as a practitioner.
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