31. January 2023

Everything you need to know about the new rules for political advertising

Online political advertising is a relatively new phenomenon that is not yet adequately regulated in the European Union. This regulatory gap threatens the integrity of elections through voter manipulation, non-transparent campaigns and the spread of disinformation. Therefore, at the end of 2021, the EU Commission presented a draft Regulation with rules on transparency as well as targeting and amplification of political advertising. Here are the most important questions and answers on the new Regulation.


1. Why do we need rules for targeting political advertising? 


Prominent examples such as the “Cambridge Analytica” scandal and the Brexit campaign, but also national elections in recent years have shown that foreign actors attempt to influence the result from the outside. 


Recent revelations by Facebook whistleblower Frances Haugen have highlighted how the business model of large tech companies such as Google or Meta have played a crucial role in amplifying these problems. The platforms sit on mountains of personal and sometimes very intimate data that enable the creation of psychological profiles. Such profiles can then be misused to target potential voters with tailored messages, to create filter bubbles and thus fragment the public political debate. This allows political parties or other organisations to play out different messages to different groups, e.g. “free ride for diesel drivers” to older men or “we do climate protection” to younger women. Messages that trigger fear can be specifically displayed to particularly anxious people or people with mental disorders. 


Cambridge Analytica was unfortunately not an isolated case but has become the norm in the business of political advertising: special PR agencies, often based in London, develop entire campaigns on the basis of data profiles – especially for far-right parties. This was recently highlighted by investigative journalist Peter Kreysler in his documentary “Election Campaign Undercover”.


2. What new rules should apply to recommendation algorithms in the future?


The text of the Council (in its “General Approach”) contains rules on recommendation algorithms:


“Article 12: Prohibitions related to targeting and amplification
1. Targeting or amplification techniques that involve the processing of special categories of
personal data referred to in Article 9(1) of Regulation (EU) 2016/679 and Article 10(1) of
Regulation (EU) 2018/1725 in the context of political advertising are prohibited.” 


Recommendation algorithms are a well-kept secret of the platforms. They ensure that each and every one of us sees something different on YouTube Autoplay (Up Next), in their Instagram or Facebook timelines or their Tiktok feeds. The criteria according to which this so-called amplification takes place are not yet comprehensible.


Experts like Facebook whistleblower Frances Haugen demonstrated that the decisive factor for the distribution of content is the interaction of users with the content. If a post has a high probability of being shared or commented on by many people, the message will be flushed into many timelines. Interaction is proven to be particularly strong when the message triggers negative emotions such as fear and anger, because then we don’t just passively watch, but want to act. Negative emotions are particularly triggered by disinformation and by extremist and often far-right messages or by conspiracy narratives. As a result, a disproportionate number of people see this content, because it can be used to keep them on the platform and display more advertising. This is the business model of the big tech companies, this is how social networks make their money. This system leads to lies and right-wing propaganda spreading faster and being shown to more people than facts and neutral content.

One example: In the 2021 Bundestag election campaign, the Facebook page of the Russian state broadcaster Russia Today generated more interactions than the pages of Bild, Spiegel or the Tagesschau. 64 percent of all interactions on the Facebook pages of political parties were with the German extreme right-wing populist political group AfD.

Such a distortion – that TV stations, for example, would prefer to broadcast AfD videos during the Bundestag election campaign – is unthinkable in other media thanks to clear rules. Or is the higher interaction on the net due to the fact that people prefer to watch AfD pages?


The answer is provided by a project of the Süddeutsche Zeitung together with The Markup: This joint research used a browser app to collect data from the feeds of Facebook users with different demographic backgrounds. This data was used to analyse how the Facebook accounts of the major German parties reach their supporters. More than 200 Facebook pages of the AfD were shown to the experimental group – many more than pages than of all other parties. The AfD’s posts landed in the timeline of the experimental group four times as often as the posts of the social-democrat party SPD. So they saw AfD posts 3,200 times and SPD posts only 760 times. This was not because the majority of the test group had already shown interest in AfD posts; only 44 people were AfD voters, in contrast to 62 SPD and 82 CDU/CSU supporters. The algorithm alone ensured that AfD ads were four times more visible, regardless of the interests of the addressees. A large civil society alliance working on the EU regulation, led by European Partnership for Democracy (EPD), points out the risks of recommendation algorithms:


“As the aim of the platforms is to maximise their profits derived from advertising, the use of amplification techniques for political advertising has inherent and undesirable by-products including the creation of filter bubbles, the fostering of polarisation and the fragmentation of the public space of deliberation.”  


For good reason, political advertising on television and in the printed press is clearly regulated. On the internet, however, the algorithms of Google, Facebook & Co continue to decide who gets to see what political advertising. This must not be allowed. Democracy needs transparent rules for political advertising both the online and the offline world.  


The positions of the three EU institutions (Parliament, Council, Commission) on the recommendation algorithms are different from each other. The proposal of the Council of the EU includes restrictions on amplification – meaning tailored recommendation algorithms. The EU Parliament deletes “amplification” from its position and replaces it with “ad delivery” (i.e. optimising the delivery process of the ad by online platforms or advertising services).


3. Will the EU soon “ban” YouTubers like Rezo?


No. The statement made by YouTuber RubBubble is not true. There is not a single sentence in the regulation that “bans” YouTubers or other creators. The rules that the parliament is now passing will hardly restrict the possibilities of private web video producers.


According to the draft text, there should also be no transparency obligations for such private videos – unless the user has received a service in return or payment for the distribution of the message. The draft regulation states:


(27) The notion of political advertising services should not include messages that are shared by individuals in their purely personal capacity. Individuals should not be considered as acting in their personal capacity if they are publishing messages the dissemination or publication of which is paid for by another.  


(29) The rules on transparency laid down in this Regulation should only apply to political advertising services, i.e. political advertising that is normally provided against remuneration, which may include a benefit in kind. The transparency requirements should not apply to content uploaded by a user of an online intermediary service, such as an online platform, and disseminated by the online intermediary service without consideration for the placement, publication or dissemination for the specific message, unless the user has been remunerated by a third party for the political advertisement.  


These are explanatory “recitals” of the regulation. However, looking at Article 12 of the Commission’s draft and the Council’s text, the restriction on targeting practices would apply even if it is not a “service”.


If the Council text were to be adopted, Rezo’s videos regarding personalised recommendations could however be affected – though again, Rezo is so diligent journalistically that he would likely fall under the exception provided for this. Also affected, however, would be posts from many far-right channels, which are currently frequently promoted by recommendation algorithms and which often know perfectly well how to exploit the algorithms. Their posts spread much faster than posts from fact-based and neutral channels.


4. Why should government communications be exempt?


The governments of the Member States are represented in the Council of the EU – the institution that put this proposal for an exemption on the table. The EU’s Member States have an interest in being able to communicate certain information to their citizens, such as the date of elections or the availability of vaccinations, also on social networks.


However, it is important to avoid in the Regulation that governments have a free pass to advertise themselves or to have fewer requirements for government advertising – while the opposition is obliged to abide by strict rules. At the same time, it must be ensured that neutral messages and information from the government to citizens do not fall under the regulation. Finding a balance for this is not easy.

The Council of the EU adopted a position in December 2022 that is far from being the final product. The Council’s broad exemption is indeed worrying when one considers what such an EU Regulation would mean for countries like Poland or Hungary:


Article 2(2): “Political advertising does not include 

iii. public communications by, for or on behalf of a public authority of a Member State, including members of government, provided that they are not intended to influence the outcome of an election or referendum, voting behaviour or a legislative or regulatory process”.


The EU Parliament is still working on its position and is not including such a broad exemption for government communications.


5. Where does the lobby push come from?


The digital industry spends by far more money on lobbying the European institutions than any other sector. Google in particular is very actively trying to influence the text of the Regulation. At center appears to be the defense of its own business model, which is geared towards collecting the highest possible advertising revenue and keeping people on the platform longer with viral organic content and increasing interactions. Google wants to prevent transparency for recommendation algorithms and fears any government intervention in the profit-optimised machine.


Google is spreading the misleading claim that “in future, videos with (political) messages may not be distributed by means of personalised recommendations”. This was the wording of a lobby email that reached our office. On the one hand, videos can of course still be uploaded and thus “disseminated”. But on the other hand, it is true that the restriction proposed by the Council refers to the selective playing of content to certain groups of people according to opaque criteria (amplification). Videos would still be seen, but randomly by people from all sectors of our society. In addition, AfD content would then no longer be displayed four times more frequently than SPD content.


Google suggests to limit the regulation to “services” that are paid for. This could potentially mean that cases where Google or Facevook use their own services for advertising purposes in their own interest (and where no payment happens) are exempt from the regulation.


It also means that political actors such as parties can continue to engage in opaque targeting of voters as long as they do not use external service providers.


6. When can an agreement be expected?


There is currently no final text for this regulation and no draft for the final agreement between the three EU bodies (Commission, Council and Parliament). But the first two hurdles of EU legislation have been cleared: The Commission has presented a proposal for the text and the Council has adopted it in a so-called “general approach”.


In the coming months, the Parliament and the Council as co-legislators must now start “trilogue” negotiations to agree on a final version, with the support by the Commission.


An overview of the steps taken so far:


The regulation on political advertising was proposed by the EU Commission on 25 November 2021.


The Council of the EU, the 27 Member States, agreed on a common position on 6 December 2022.


The EU Parliament is still working on its position. The Parliament text will be voted in the Internal Market and Consumer Protection Committee on 24 January 2023, with the plenary vote to follow in early February. After that, the trialogue of the three institutions will start. I expect an agreement before the summer – so that the rules are in place and applied by the European elections at the latest.

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