Political Advertising Online: a Regulation fit for Digital Democracy

The EU’s regulation on political advertising online is intended to enhance transparency, but it may inadvertently threaten free speech, especially impacting grassroots political discussions. What is worse, the proposal for the establishment of a user-notification mechanism, under certain conditions, could be exploited by malicious entities to skew public discourse, particularly in EU states with a record of illiberal politics. In the ongoing trialogues, can the co-legislators create a regulatory framework that is fit for the digital age?

Regulating Political Advertising: Promises and Challenges

The EU’s task of regulating online political advertising demonstrates a troubling reality: some parts of the proposed regulation might compromise rather than uphold democratic processes across Europe. With the trialogue negotiations still unfolding, a closer examination of the Commission’s proposal and the positions held by the EU Council reveals three key areas of concern: the broad regulatory scope, the hotly contested article 12 that adds restrictions on the use of targeting in political advertising, and a user-notification mechanism with dangerous potential for misuse in countries veering towards illiberalism.

Not All Political Expressions are Advertisements

As it stands, the regulation appears to consider every political speech online as political advertising, without discrimination between paid ads and organic user-created content. The regulations’ vast scope could unintentionally restrict open political discourse. By attempting to capture and regulate a wide range of online content instead of increasing transparency, we risk stifling grassroots discussions vital for democracy.

Think about the grassroots political campaigning that was key to success in recent referendums in Ireland and elections in Spain. If activism can be considered a political advertisement, the beneficiary of such regulation can only be an illiberal political establishment that already controls the political narrative. With a sweeping regulatory approach, we risk silencing political expressions and organic debates that enrich our democratic processes.

Micro-targeting is also used by Activists and Minorities

Article 12 of the proposal seeks to add restrictions on targeting and amplification techniques used in online political advertising. The concern arises from political micro-targeting, which utilizes vast personal data to tailor messages, potentially limiting access to diverse information sources. The proposal bans techniques involving sensitive personal data processing but allows for some exceptions, i.e., when there is explicit individual consent. Giving consent will probably look like GDPR’s exhaustive consent pop-ups, which will add another layer of inconvenience to online experiences.

While the intention is to enhance transparency, the inconvenience to user experience might, of course, be deemed a lesser concern. The problem is that banning micro-targeting could also pose challenges for political activists and emerging entities in communicating their messages and reaching relevant audiences. Although the regulation intends to prevent bad actors from targeting vulnerable segments of the electorate, the unintended casualties could be nascent political voices seeking to establish their own niche in the public sphere.

User-Notifications may lead to Election Manipulation

Finally, the proposal relies in part on individual users to monitor political ads online through a user-notification mechanism. When individual users flag content as political advertisements, the service provider must evaluate the content. In the month leading up to elections, providers must respond within 48 hours or risk significant financial penalties.

And here is the glaring loophole: malicious actors could orchestrate mass flagging of opposing political content, drowning out competing voices and muddying public discourse. Mass flagging does not even have to be that massive. In the face of financial penalties, service providers like YouTube, for instance, will be quick to take down any user-created content that is ‘flagged’ by a few individual users as political advertising.

We’ve seen how “brigading”—an organised effort by groups to influence online content—wreaked havoc in other domains, in platforms like Reddit, for example, where organised groups have been coordinating to manipulate ratings to either promote or bury certain viewpoints, manipulating public opinion. In the context of political advertising, especially during election periods, such tactics can also distort narratives and, at worst, manipulate electoral outcomes. Inadvertently, the EU could be handing over a tool to the proponents of illiberal democracy in the continent, allowing them to hide their tactics of manipulation under the cover of regulatory legitimacy.

The Way Forward: a Regulation fit for Digital Democracy

In this crucial juncture for the regulation, the co-legislators should proceed with caution. It is important to consider a clear definition of political advertising online, simple user-consent procedures, and vigilant oversight against misuse. Digital democracy is already at the heart of our political processes: it touches upon the sacrosanct act of voting, includes diverse digital voices and embraces varied perspectives, which together shape Europe’s democratic ethos.

As we grapple with the complexities of regulating online political advertising, our overarching goal should be to strengthen, not undermine, our democratic foundations. The trajectory of Europe’s democratic history will be determined by the decisions we take now.

Dr Antonios Nestoras
Dr Antonios Nestoras
Dr Antonios Nestoras is Deputy Director of the European Liberal Forum (ELF) and an adjunct professor at the Brussels School of Governance of the Free University of Brussels (VUB), where he teaches geopolitics and technopolitics.