Monday

5th Dec 2022

Opinion

What EU political ads regulation will - and will not - deliver

  • The commission was also smart to leave most technical detail in annexes that can be changed through delegated acts meaning the regulation is future-proof to the fast-changing reality of online advertising (Photo: SimonQ)
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Elections are increasingly won and lost over the savviness of online political campaigning techniques. And given the lack of transparency of political advertising online, the European Commission is right to address the issue in a separate regulation to complement the upcoming Digital Services Act (DSA).

The proposal presented on Thursday (25 November) by EU Commission vice president Jourová is a big step forward for transparency online but it still falls short in two areas: a missed chance at mandating ad libraries and a failure to ban some types of data being used for targeting.

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Europeans concerned about the functioning of our democracies should welcome many elements of the regulation: it imposes obligations on all providers of online political advertising services, including the data brokers, advertising agencies and ad networks involved.

Such a comprehensive approach is necessary given the multitude of actors involved in political advertising. The commission was also smart to leave most technical detail in annexes that can be changed through delegated acts meaning the regulation is future-proof to the fast-changing reality of online advertising.

Yet, two key issues remain unresolved: real-time public scrutiny and targeting and ad delivery.

Transparency - but only for the viewer

Political parties post thousands of online political ads during an election campaign, which are shown only to some people, meaning they evade all public scrutiny that broadcast ads would be exposed to.

Such real-time public scrutiny is essential for meaningful oversight by watchdogs, who can inform voters about potential misleading or inconsistent messaging by political parties or breaches of campaign spending limits.

While the regulation sets out to expand the granularity of information provided to viewers of political ads - with detailed information on ad spending, targeting criteria, and the General Data Protection Regulation (GDPR) basis for data processing - it only does so at an individual level i.e. to the viewer of the ad.

The regulation thereby falls short of addressing one of the key problems with online political advertising: the lack of oversight.

While the regulation does point to the online ad repositories made obligatory for Very Large Online Platforms (VLOPs) in the DSA, it does not impose obligations for real-time transparency - essential in a fast-paced electoral environment.

This still fails to capture 10 percent of online political ads that are not posted on VLOPs. Aggregated data on those platforms would only be made available upon request, for which those platforms get a full month to respond. This risks incentivising a shift of malign ads to smaller online platforms, perpetuating the lack of public scrutiny.

A much more efficient and simple solution would be to create a single ad library where all the information on ad content, ownership and expenditure would be available for third parties to examine in real time.

So, in sum, the regulation adds additional transparency obligations on top of those expected in the DSA, but falls short of placing universal ad libraries - so central to public scrutiny - at the heart of these transparency obligations.

Indirect ban on targeting

Another thorny issue is the question of ad targeting.

Targeting allows advertisers to exploit people's vulnerabilities and send diverging messages - for instance, different electoral promises - to different homogenous population groups, thereby fragmenting the public debate.

Micro-targeting is also problematic for privacy reasons. This month the European Data Protection Board called for "a phase-out leading to a prohibition of targeted advertising on the basis of pervasive tracking." At this very moment, the European Parliament is fighting the battle over whether to ban such advertising in the DSA.

The regulation deals with this by reiterating the GDPR ban on the use of special category data when specific consent has not been granted. It builds further on the GDPR with additional transparency requirements regarding data source and processing.

While enhancing transparency works well for targeting techniques, it doesn't for the optimisation process that happens after advertisers pick their targeting criteria. These 'amplification techniques', as the regulation calls them, are essentially platform algorithms that optimise the circulation, reach and/or visibility of ads. A process which is inherently opaque.

So while the transparency gains on targeting will be important for ensuring fair campaigning, it will be virtually impossible to provide meaningful transparency over the thousands of apparently irrelevant parameters used to profile users and deliver ads to them.

Instead, the transparency obligations should be complemented with measures reaching the root of the problem: the masses of inferred data derived from the users' online behaviour. A ban on using such data - which lacks meaningful user consent - would mitigate a variety of the dangers of political micro-targeting.

At each and every election we see certain political actors manipulating the current online ecosystem to the detriment of democracy. While it is too late to impact the French and Hungarian elections on the horizon, the pressure is on for the parliament and council to get this regulation right and fix online political ads well ahead of the next European Parliament elections.

Author bio

Ken Godfrey is executive director at the European Partnership for Democracy, an NGO network of 18 organisations, advocating for rule of law, human rights, good governance and democratic participation.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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