5th Dec 2023


EU political ads rules could be 'hotbed for retaliatory flagging'

  • There is undoubtedly a way to regulate political advertising without compromising freedom of expression (Photo: Jorge Franganillo)
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The European Union was founded on the principles of shared economic prosperity and the protection of fundamental rights, including freedom of speech and expression. Index on Censorship, established in 1972, has been a staunch ally in upholding these principles. Initially, our mission focused on smuggling dissident material out of the former Soviet Union, publishing it, and then smuggling it back in.

However, the landscape has dramatically changed with the advent of new technologies, presenting new challenges for the preservation and promotion of free speech.

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In today's digital era, we face a different set of obstacles in our quest to safeguard freedom of speech. Technological advancements have provided us with greater accountability and scrutiny over decision-makers and politicians. Platforms now enable millions of individuals to engage with the click of a button, allowing anyone with a viewpoint to reach entire continents before they finish their morning coffee.

Undoubtedly, this simplicity also brings forth threats. False information can flood into otherwise thoughtful debates, conspiracy theories can spread rapidly, and foreign interference in elections has become a well-documented concern. Balancing the fundamental principles of free speech and expression with the regulation of technology, platforms, and content to promote fairness and safety presents a significant challenge.

At the moment, the European Union is striving to address this challenge during the trilogue discussions on EU Political Advertising regulations.

On the surface, it appears to be a thoughtful attempt to introduce transparency, scrutiny, and accountability into the digital systems that are now deeply intertwined with our political processes.

However, the current proposals, aimed at encompassing all aspects of digital political engagement, risk unintended consequences that could undermine freedom of speech.

As it stands, the proposals would cover any content with a political nature that could be considered advertising. This means that a journalist reporting on national elections and covering manifesto launches or policy initiatives could be classified as a political advertisement and subjected to these new rules.

Organisations like Index on Censorship, which express views on government actions through articles like this, could face moderation, regulation, and potential censorship.

Even well-known voices championing important issues, such as Greta Thunberg, could find themselves subject to European regulations for every tweet, Facebook post, or snap they share. This not only stifles organisations' willingness to intervene or comment but also significantly narrows political debate.

It is important to acknowledge the necessity of regulating political advertising services to hold them accountable to the voting public, ensuring transparency regarding targeted ads and their funding.

However, this regulation goes beyond that.

By covering anything that could be deemed a political advertisement, it encroaches on the private lives of citizens and compromises a free and independent press. This issue could be easily rectified by explicitly stating that the regulation only applies to political advertising services.

Another concern is the proposed flagging system, allowing anyone to flag content for platform review to determine if it falls under the new regulation. Platforms would be required to review flags within 48 hours. However, this transfer of responsibility to the opaque internal workings of tech giants raises questions.

How will they determine what constitutes political advertising, and why should they possess such power? Imposing an arbitrary 48-hour limit on this process may result in the removal of thousands of voices and opinions, particularly from marginalised communities, as platforms fear legal repercussions and penalties for non-compliance.

Suddenly, whether this article is to be considered a political advert should it be shared on social media would be at the discretion of an employee — or algorithm — of a tech platform completely unaccountable to me.

Additionally, opponents of lawful campaigns may abuse the system, flagging legitimate content to stifle free expression. Implementing a trusted flagger mechanism, akin to what was adopted in the Digital Services Act, would be a step in the right direction.

Whether it is anti-fascist groups targeting politicians on the right or anti-LGBTQ groups seeking to close down campaigns for greater equality, the system will become a hot-bed for retaliatory flagging — costing millions to administer and ultimately creating the circumstances for less debate, rather than more.

There is undoubtedly a way to regulate political advertising without compromising freedom of expression. While the European Union has yet to arrive at that solution, there is still time to address these issues and consider the available answers.

By reducing the scope of the regulations to just paid-for content through political advertising services, you give protection to the journalist, the campaigner and the minority opinion. By removing the arbitrary 48 hour window for review, you allow time for considered responses which in turn allows the quieter voices to be heard and by having a trusted flagger system, you prevent abuse and bad-faith actors.

Simple answers to complex issues. Index on Censorship knows the preservation of free speech is of the utmost importance, and it is crucial to strike the right balance in the digital age.

Author bio

Ruth Anderson is the CEO of Index on Censorship, the London-based free speech NGO, and a Labour member of the House of Lords.


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

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