On 13 March 2024, the European Parliament and the Council adopted Regulation (EU) 2024/900 on the transparency and targeting of political advertising (the Regulation). The Regulation is now in force, however, the majority of its provisions will not take effect until October 2025.
This article aims to provide a summary of the key provisions of the Regulation under the following headings:
- Scope of the Regulation
- Transparency and due diligence obligations
- Targeting and ad delivery of online political advertising
- Supervision and enforcement
- Scope of the Regulation
The Regulation is intended to provide harmonised rules on transparency and related due diligence obligations for the provision of political advertising services and the use of targeting techniques within the EU.
“Political advertising” is defined broadly in the Regulation. In general terms, it covers the preparation, promotion, or dissemination of any message which is generally done for remuneration or as part of a political campaign and which is either:
- done for or on behalf of any political actor; or
- liable and designed to influence the outcome of voting behaviour, or a legislative or regulatory process, at any level in the European Union.
However the Regulation does exclude from its scope any political opinions expressed in a purely personal capacity, along with political opinions that are subject to editorial responsibility within the media (unless remuneration is involved).
The obligations applicable to political advertising services are also expressly excluded from applying to content uploaded by a user of an online intermediary service, such as an online platform, and disseminated by the online intermediary service, where such an action is completed without consideration for the subsequent dissemination of the specific message, unless the user has been remunerated by a third party for the political advertisement.
- Transparency and due diligence obligations
The Regulation draws a distinction between “providers of political advertising services” and “political advertising publishers”:
- “Providers of political advertising services” is the broader category, encompassing any person who is “engaged” in the provision of political advertising services. Political consultancies, advertising agencies and public relations firms may fall within this category.
- “Political advertising publishers” on the other hand, are a subset of “providers of political advertising services”. They are the persons who actively publish, or disseminate political advertising – these are usually entities at the end of the chain of service providers, which disseminate political advertising by broadcasting, making it available through an online interface or otherwise make it available to the public e.g. an online platform.
The Regulation provides for several obligations that are applicable to “providers of political advertising services” to ensure that the services are provided in a transparent manner.
The Regulation then imposes further, additional obligations on “political advertising publishers”.
Obligations for providers of political advertising services
- Contracts: Under Article 7, providers of political advertising services are required to ensure that the contractual arrangements for the provision of the political advertising are appropriate to ensure compliance with the Regulation, including the obligations relating to the completeness and accuracy of information in respect of the political advertisements and the allocation of certain responsibilities between the parties.
- Records: Under Article 9, providers of political advertising services are required to maintain records of information related to the provision of those services, including:
- Information regarding the political advertisement or political advertising campaign to which the service is connected
- The specific service or services that they provided in connection with the political advertising
- The amounts they invoiced for the service/s provided and the value of any other benefits they received for these services
- Information regarding the origin of the payment and/or other benefits received
The Regulation places an obligation on the providers of political advertising services to retain this information for seven years and to make “reasonable efforts” to ensure that the information retained is complete and accurate.
- Information for the political advertising publisher: Under Article 10, providers of political advertising services are required to transmit the information set out in Article 9 to political advertising publishers to enable them to comply with their obligations under the Regulation. This information must be transmitted in a timely, complete and accurate manner.
Additional obligations for political advertising publishers
- Political advertisements labelling and transparency requirements: Under Article 11, political advertising publishers must ensure that political advertisements are presented with specific information, provided in a “clear, salient and unambiguous way”. This information includes:
- a statement that the content is a political advertisement
- the identity of the sponsor of the political advertisement
- the transparency notice referred to in Article 12 of the Regulation (discussed below) or an indication of where it can be retrieved
If applicable, the political advertisement must also provide information regarding the ultimate controlling entity of the sponsor, the relevant election, referendum, legislative or regulatory process which the political advertisement is linked to, and a statement to the effect that the political advertisement has been subject to targeting or ad delivery techniques.
- Transparency notices: Article 12 sets out the information requirements for the transparency notice which the political advertising publisher must include in each political advertisement. The information includes:
- The identity of the sponsor of the advertisement along with their name, email address, and, when the sponsor is not a natural person, the address where it has its place of establishment
- The period during which the political advertisement is intended to be disseminated
- The amount and value of benefits received by the providers of political advertising services including those received by the publisher for the political advertising services and if relevant, the political advertising campaign
- Information on the origin of the amounts and other benefits referred to in point (iii)
- the methodology used for the calculation of the amounts and value referred to in point (iii)
- where applicable, an indication of elections or referendums and legislative or regulatory processes with which the political advertisement is linked
- where the political advertisement is linked to specific elections, links to official information about the modalities for participation
- where applicable, links to the European repository for online political advertisements referred to in Article 13
- information on the mechanisms referred to in Article 15 (described below)
- where applicable, whether a previous publication of the political advertisement or an earlier version of it has been suspended or discontinued due to an infringement of the Regulation
- where applicable, a statement to the effect that the political advertisement has been subject to targeting techniques or ad delivery techniques
- where applicable and technically feasible, the reach of the political advertisement in terms of the number of views and of engagements with the political advertisement
It is the political advertising publisher’s responsibility to ensure that the information in the transparency notice is up to date and complete during the entire period of the publication of the political advertisement
- Mechanism for indicating non-compliant political advertisements: Under Article 15, political advertising publishers are required to put mechanisms in place to enable viewers to notify them if a political advertisement that they have published does not comply with the Regulation. This mechanism must be free of charge and easy to access.
Where a political advertising publisher is a very large online platform (VLOP) or very large online search engine (VLOSE) (as defined in the Digital Services Act), it is required to examine and address notifications made under these mechanisms in a diligent, non-arbitrary and objective manner without undue delay. Political advertising publishers who are VLOPs/VLOSEs must also inform the person who made the notification with the follow up, again without undue delay.
For political advertising publishers who are not VLOPs/VLOSEs, the requirements are slightly less burdensome. Political advertising publishers who are not VLOPs/VLOSEs must, without undue delay, make “best efforts” to examine and address notifications in a diligent, non-arbitrary and objective manner. They must also inform the individual or organisation who made the notification, “at least upon request,” of the follow up given to it.
- European repository: The Regulation requires the Commission to establish a European repository for online political advertisements which will be a public repository for all online political advertisements published in the EU or directed to its citizens. Political advertising publishers must make each political advertisement they publish accessible through the European repository, along with the corresponding transparency information.
- Targeting and ad delivery of online political advertising
The Regulation introduces specific requirements for targeting and ad delivery techniques when used in the context of online political advertising.
Under Article 18 of the Regulation, targeting or ad delivery techniques involving the processing of personal data in the context of online political advertising shall only be permitted if certain conditions are fulfilled. These conditions are:
- The controller has collected the personal data from the data subject
- The data subject has provided explicit consent (as defined in the GDPR) to the use of personal data separately for the purpose of political advertising
- The techniques do not involve profiling (as defined in the GDPR) using special category data
Additional transparency requirements
Article 19 of the Regulation imposes additional transparency requirements where controllers are using targeting or ad delivery techniques involving the processing of personal data. These transparency requirements are in addition to the other requirements set out in the Regulation and the requirements laid down in the GDPR. Controllers are required to:
- Have an publicly available internal policy on their targeting and ad delivery techniques
- Keep a record of their use of such techniques
- Provide additional information to the individuals concerned regarding the logic involved in the techniques and whether an artificial intelligence system has been used to target or deliver the political advertising
- Prepare an internal annual risk assessment of the use of targeting and ad delivery techniques and publish the results
- Provide a reference to effective means to support individuals exercise their rights under the GDPR, in particular a reference to their rights to amend personal data or withdraw consent
- Supervision and Enforcement
Competent authorities
The Regulation provides for each Member State’s Data Protection Commission to operate as the national competent authority to monitor the application of Articles 18 and 19 of the Regulation, which impose obligations on controllers in respect of targeting and ad delivery techniques. The European Data Protection Supervisor is the competent authority for supervising compliance with the Regulation where European institutions and bodies are concerned.
Member States are required to designate a competent authority to supervise the compliance of intermediary services (as defined in the Digital Services Act) with the obligations laid down in Articles 7 to 17 and 21 of the Regulation, which largely concern transparency and due diligence obligations for political advertising services. The Regulation provides that competent authorities designated under the Digital Services Act may also be designated as the competent authorities to supervise Articles 7 to 17 and 21 of the Regulation.
The competent authorities are given various powers under the Regulation, including the power to:
- Request providers of political advertising services provide them with any information that is required to verify the providers compliance with particular obligations
- Order the cessation of infringements of the Regulation
- Impose fines
Cross-border cooperation
The Regulation provides in Article 23 that compliance by providers of political advertising shall be subject to the competence of the Member States where the provider has its establishment, or main establishment if it is established in multiple Member States.
Complaints
Under Article 24, competent authorities are obliged to address every notification of possible infringement under the Regulation. Where it is requested, the competent authority must inform the person who made the notification of the follow up.
Where notifications are received during the last month preceding elections or referendums, these must be addressed without undue delay.
Fines
Article 25 of the Regulation provides that the maximum fines which may be imposed for infringements of the Regulation are 6% of the annual income or budget of the entity subject to the fine, or 6% of the annual worldwide turnover of the entity subject to the fines in the previous financial year.