In April 2021, ARTICLE 19 and the European Partnership for Democracy (EPD) submitted their response to the EU public consultation on a proposal for an initiative on greater transparency in sponsored political content, and other supporting measures. In the submission, we highlight several issues surrounding spending limits for political parties and make several recommendations to the EU. We insist that a content-centred approach to political advertising is insufficient and problematic.
Transparency is one of the key factors in ensuring free and fair elections. As access to information and freedom of expression should be at the heart of any election, it is important that the tools used during election campaigns are transparent and allow the public to scrutinise the political parties and candidates. In the consultation organised by the European Commission, a major focus is on political advertising. Subsequently, the European Commission will present a package of measures to ensure greater transparency in political advertising, particularly as political campaigning moves online.
It is important to note that political advertising does not just occur during the election period and is not always tied to candidates. This means that legislators must consider the treatment of ads outside the election period for any measures to be effective.
By their nature, political advertisements contain competing information. A blanket ban on false or misleading claims is therefore undesirable especially as assessing the truthfulness of a statement requires a political judgment. This is why we believe that a content-centred approach is insufficient and is potentially problematic. Any content can become political over time, making it extremely difficult to regulate in practice. We propose that instead of focusing on the content itself, we need to focus on the advertiser behind the ad and the process of advertising itself. This would increase transparency and reduce the spread of disinformation while safeguarding freedom of expression.
In our submission, we highlight that:
- Political advertising should be defined by law. This includes defining core political advertisers such as political parties and candidates, as well as peripheral political advertisers (that is those that receives funding from political actors, including influencers, advertising agencies or political foundations).
- Campaign spending by actors financed by political parties and candidates during the official election period should be counted towards party spending limits. However, if there are no financial or close ties nor control over the advertiser, this should not count towards party spending limits.
- ‘Issue ads’ during an election period should only count towards a party or campaign’s spending limit if there exists a financial relationship between the advertiser and the political actor or if the party or campaign has control over the advertiser.
- Advertising of civil society and other actors be considered issue advertising. They should not have to follow the same rules as political parties when paying or placing political advertising, as this risks severely limiting non-profit and public interest campaigning. The only exception should be if there is a financial relationship or relationship of control between the non-profit and the core political advertiser.
We also make the following recommendations to the EU:
- The EU should regulate platforms’ responsibilities for ensuring inclusive, competitive and transparent elections.
- The EU should set rules requiring sponsors of ads to be disclosed within the ad itself for all ads – political, commercial or public interest ads. A single interoperable ad library is preferable to platform-specific libraries and the Commission should explore this possibility.
- In order to prevent foreign actors from sponsoring political advertising, the EU should ban advertising from outside the EU’s external boundaries, while ensuring advertising can still occur across EU Member State borders. In view of diaspora communities, political advertising should occur through a party representative within the EU.
- We propose a counter-speech mechanism to allow political advertisers to target the same group as an ad in the ad library by a different political advertiser (e.g. one candidate being allowed to reach the same group as their opponent). Such a measure would allow for counter-speech, and apply only to political advertisers. This should be seen as an application of the right of reply, as established in international law and applied to news publishers already. This would allow for overcoming the voter segmentation and polarisation linked to political microtargeting.