Europe is continuing its fight against mechanised political influence, propaganda, disinformation. Package restricting the use of targeted political ads is the new chapter. In this note, I critically analyse the proposals. This analysis will also help to understand what might lie ahead for non-political ads in the future.
It’s an interesting problem on the cross-sections of technology and society. But why do I write about it? I studied new technical channels (1 2) of ad serving for many years. I highlighted the risks in 2016, long before the topic became widely known and discussed. I know in-depth how the technologies work. Together with my background in information security, privacy, and a grasp of disinformation, that will be the technical view. In 2018 I criticised the EU's proposal intended for the 2019 elections, saying that disinformation risks in 2019 are overblown . I was correct. Anyway, let’s get to it then!
The regulation concerns all elections, not just the ones to the European Parliament.
Political ad
It is noted that “a large, diversified and increasing number of services are associated with that activity, such as political consultancies, advertising agencies, “ad-tech” platforms, public relations firms, influencers and various data analytics and brokerage operators”. It is also noted that “messages on societal or controversial issues may, as the case may be, be liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour”.
‘Political advertising’ is defined as content directed by political organisations or content that may influence the outcome of an election.
‘Political actors’ are the politicians/candidates or any person or firm working on their behalf (e.g. PR consultants). This is the subject of this law.
Unpaid content?
The regulation does not cover unpaid campaigning (“Political views expressed in the programmes of audiovisual linear broadcasts or published in printed media without direct payment or equivalent remuneration”). This means that, for example, people who receive advantages for their activities (i.e. officials, clerks, administration employees, political appointees, employees of state companies and institutions, other beneficiaries etc.) may engage in “unpaid” political campaigning. For “their own” funds. Ordinary citizens, too, may do the campaigning.
Transparency
It gets stricter and more technical here. Ads must be placed in a strictly transparent manner. Political ads will have to be labeled with:
“following information in a clear, salient and unambiguous way:
(a) a statement to the effect that it is a political advertisement;
(b) the identity of the sponsor of the political advertisement and the entity ultimately controlling the sponsor;
(c) a transparency notice to enable the wider context of the political advertisement and its aims to be understood, or a clear indication of where it can be easily retrieved.”
Identity of the sponsor and “aggregated amounts spent” (how much money is spent), a link to upcoming elections, all this must be included in the transparency notice. The information must be accessible but also “machine-readable” (this will help with oversight by NGOs and researchers).
Technically, doing this all is very simple (despite what the EU Commission tried to assert!). In fact, I believe that this should’ve been done a long time ago. This is not rocket science.
Individuals will also have to be able to have easy ways to notify the ads publishers that a particular political ad may be illegal. Technically this is also very simple.
Prohibition of some targeting/amplification
Prohibited territory here. “Targeting or amplification techniques” using sensitive data are prohibited. Sensitive data are these: “personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation”.
Unless the user consents to it. It's probably also possible to game this system by targeting aspects correlated with the above. This is possible.
The use of targeting and amplification will warrant the creation of an internal policy and register of use, writing down the parameters for targeting. Together with the ads (transparency!), there must be a way to learn information “ to allow the individual concerned to understand the logic involved and the main parameters of the technique used, and the use of third-party data and additional analytical techniques”. I do not think this will be impossible, especially if the political actors will decide that it is worth it.
Cynics or skeptics could describe this as a "big nothing", considering how the upcoming laws have been presented for the previous months.
However, a caveat: it is now prohibited to target political content based on political opinions (so logically reasoning, also preferences?). Someone in the European Commission overlooked it?
Infringements
Supervisory authorities will be tasked with monitoring compliance. In case of a breach, they may publish (in public) the names of persons responsible for breaching the rules (that may actually be quite penalising!). And impose administrative fines. It is unclear what will be the amount of fine. Clarity is only about the “targeting via sensitive data”, which considers fines equal to the GDPR level (€20M). So again, a mixed bag.
The rules will be enforced by Data Protection Authorities (same who enforce GDPR). Not the national elections authorities. This makes sense. The regulation introduces strict transparency needs and some (undefined!) fine regimes. The amount of fines ranges from GDPR (in some cases) to “one defined by the Member States” (in principle, it may be €1).
The actual regulation is here: on the transparency and targeting of political advertising.
Summary
This Regulation does not prohibit targeted political ads. It will not contribute much to the ‘civilisation’ of ads to limit propaganda or disinformation. We may wonder why this did not exist before.
While the curbs are tangible, it is not impossible to overcome them.
The introduction of these rules will mean that competition between political parties will simply be broader and more specialised - they will involve additional advisors and consultants, who will be tasked with finding appropriate holes in the rules.
If it was supposed to be a big bang, it is not. Let’s see what European Parliament does to it. Specifically, what the politicians who often complain about Big Tech and data misuses will decide about themselves.