Shortly before midnight on Monday 6 November, negotiators from the Council of the European Union and the European Parliament reached a provisional political agreement on the targeting and transparency of political advertising. Although the co-legislators had set themselves the target of reaching an agreement that would enable the text to be implemented before the next European elections, only a few of the text’s provisions will come into force before this deadline. Measures covering potential interference by third countries or entities from third countries will not yet be applicable.
“This is a world first. For the first time, a continental bloc is introducing comprehensive legislation on the transparency of political advertising and the protection of democracies”, rapporteur Sandro Gozi (Renew Europe, Italian) told EUROPE, describing the trilogues as “the most difficult” of his career.
In concrete terms, the agreement provides for the labelling of political advertising so that this type of content can be clearly identified. Users will simply be able to click through to a transparency note. This note will list a range of information, such as the persons or entities that have financed the content in question, their place of establishment, the amount paid and the origin of the financing.
During the negotiations, Parliament got what it wanted in terms of the database. This database will have to be set up no later than 24 months after the entry into force of the text and will have to retain, for a period of 7 years, all political advertisements disseminated online and related information.
“If suspicions arise, the authorities or journalists will be able to access this data for 7 years. We insisted on this duration because we wanted it to cover more than one electoral cycle, which is generally 4 or 5 years”, Mr Gozi told EUROPE.
The Council of the EU considers the deadline for foreign interference to be too short
The scope of application has also been extended to cover companies, NGOs or associations that run political advertising campaigns with the aim of influencing public opinion during elections, without going through advertising service providers. “Just because it is not a political party does not mean that the text should not be respected”, commented the Italian MEP from the Renew Europe group.
The text also provides for the lifting of restrictions on the possibility for political groups to conduct transnational campaigns. Previously, “a European political group would, for example, have had to sign 27 contracts with Facebook in order to campaign. It didn’t make sense. From now on, the contract signed will be valid throughout the single market”, explained Sandro Gozi. The Meta group - which owns Facebook - blocked the campaigns of several parties for this reason during the last European elections. These provisions will be applied before the next European elections, the rapporteur confirmed.
On the other hand, and this is a matter of regret for the European Parliament, the provisions on the fight against foreign interference will not be applied before the European elections, which will take place between 6 and 9 June. Some Member States already have systems in place to deal with this problem, but the Council of the EU has decided that the deadline for forcing Member States to take action before the next elections is too short. As soon as these measures come into force, third countries and entities from third countries will no longer be able to sponsor political advertising for a period of 3 months prior to an election or referendum within the EU27, or during elections.
Ban on targeting based on sensitive personal data
The text also returns to the question of targeting. On this point, the agreement stipulates that only personal data explicitly provided for the purpose of online political advertising and collected from users may be used for targeting.
The use of data based on profiling using sensitive categories of personal data - such as ethnicity, religion or sexual orientation - will be prohibited, as will the use of data on minors. Consent to the use of data must be “easy” to withdraw.
Parliament would have liked to stick to the position adopted by the Committee on Civil Liberties, Justice and Home Affairs (LIBE), which was based on broader proscriptions - in particular a complete ban on the use of personal data. It has, however, had to make compromises.
In line with the DSA (see EUROPE 13286/8), fines of up to 6% of the annual worldwide turnover of sanctioned advertising service providers may be imposed.
Vote at the January 2024 plenary session
While the measures relating to transnational campaigns will come into force before 9 June, the rest of the rules will enter into application 18 months after the entry into force of the text. The text will not apply to internal communications - such as newsletters sent by political parties, foundations or non-profit organisations to their members - or to personal or political opinions, such as any non-sponsored journalistic content, or communications relating to the organisation of elections by official national or European sources.
The provisional political agreement still has to be formally approved by the Council of the EU and the European Parliament. It will be put to the vote by MEPs in committee and in plenary session in January 2024. (Original version in French by Thomas Mangin)