In a document dated 2 September, of which EUROPE has obtained a copy, the Czech Presidency of the Council of the European Union outlines the positions of Member States on Chapters III to V of the proposal on the transparency and targeting of political advertising (see EUROPE 13014/21).
First of all, there are different views in the Member States on the introduction of specific rules on political advertising during electoral periods.
While some, like Cyprus and Bulgaria, would welcome stricter rules during electoral periods, others, like Belgium, point out that the term ‘electoral period’ cannot be clearly delimited, as there is no “harmonised definition on EU level”.
Others, such as Germany, argue that it would be difficult to set up such a system, as “most likely there will nearly always be an electoral period somewhere in the EU”.
In addition, future discussions will also concern a complete ban on the targeting of individuals and the amplification of content. On this point, an overwhelming majority of Member States are in favour of a total ban. However, some qualify their position, believing it makes sense to limit targeting activities only to data for which users have given their consent.
Other Member States, such as Germany, are calling for profiling - seen as a potential means of targeting - to be included in the scope of the text. This aspect was so far not covered by the legislative proposal.
However, several Member States advocate exceptions to allow, for example, the targeting of local populations in smaller-scale elections. Exceptions have also been proposed for intra-party communication, which some argue should not be considered political advertising.
Alignment with DSA
Several Member States also highlight the links between this proposed regulation and the Digital Services Act (DSA) (see EUROPE 12973/11). In this respect, in addition to clarifying the roles and levels of cooperation of the different supervisory authorities, a large number of Member States emphasise the need to work on the alignment of the two texts.
Given their interrelatedness, Belgium also considers it essential to ensure that the dates of application of the two texts (currently 1 January 2024 for the DSA and 1 April 2023 for the regulation on the targeting and transparency of political advertising) are aligned.
Discussions will also have to be held on Article 14 of the text. According to this article, service providers who provide political advertising services in the EU without being established there should appoint a natural or legal person as their legal representative in one of the Member States in which they offer their services. Some Member States advocate the creation of a national register of such cases, while others, like the Netherlands, believe that this would place an additional burden on the Member States. Others say that the establishment of a register would mean an increase in the timescales for the application of the text.
Finally, Member States also seem to be divided on the issue of sanctions. Slovakia believes, for example, that sanctions should be left to national legislation. Germany, on the other hand, would like to see a minimum level of sanctions introduced, with the addition of specific rules for very large online platforms.
Others argue for the exclusion of sanctions for service providers in cases where content providers have provided information that was “not manifestly erroneous”.
In the case of Denmark, which has submitted an alternative solution to the Council Presidency, the balance is clearly even more difficult to find. The Scandinavian country points out that the decision to issue a financial sanction by an administrative authority is against its constitutional law and would be struck down in court.
See the document: https://aeur.eu/f/2yh (Original version in French by Thomas Mangin)