Political Advertising: New EU Transparency Rules Should Avoid Unrealistic Deadlines
European legislators are currently debating new rules on the transparency and targeting of political advertising (TTPA) in order to better protect democratic elections. Users themselves are set to play an important role in the future, as they will be able to flag political ads on the Internet that do not respect the new transparency rules – generating so-called “user notices”.
Some EU lawmakers recently suggested adding a new obligation to the Commission’s original proposal, which would require online platforms – such as social media websites and ad-delivery platforms – to react within 48 hours to user notices during the month before an election or referendum. While this may sound useful in theory, such strict turnaround times could have the opposite effect of what the TTPA rules intend to achieve. As discussions in the EU institutions progress, four key risks related to these unrealistically short deadlines stand out.
1) 48-hour deadline would lead to over-removal of political ads
First of all, while it makes sense to enable users to flag content they deem noncompliant – for example political ads that are not labelled as such – the co-legislators’ proposal does not take into account the delicate balance that must be struck between freedom of expression and the quick removal of content. It is of course in everyone’s interest to address these notices as quickly as possible, yet the proposed text fails to recognise that it risks incentivising the over-removal of political ads in order to meet obligations such as the 48-hour deadline. The Digital Services Act, on the other hand, managed to strike the right balance between efficient content moderation and fundamental rights.
User notices cannot just be taken at face value by platforms, as users lack the expertise to determine if an ad does not respect the law. These notices therefore require further investigation, but the obligation to complete that process within 48 hours would in practice lead to over-removal. In turn, that would negatively impact politicians’ freedom of expression and the electorate’s access to information – both of which are key to enabling voters to make well-informed decisions.
2) User notices could easily be abused to suppress opposing voices
It is also easy to imagine how this rule could be abused by malicious actors that want to suppress opposing voices. Because the proposed obligation would incentivise the false reporting of political ads by those who hold different opinions or political affiliations. Knowing that platforms probably will have to take down ads when being overwhelmed with user notices and facing a strict 48-hour deadline, this could soon become the favourite tool of those who want to undermine our democratic elections.
The European Commission actually proposed the new TTPA rules back in 2021 with the idea of better protecting electoral integrity across the EU, so it’s difficult not to conclude that a 48-hour turnaround time would run against the proposal’s core objective. In fact, the over-removal of political ads because of an unrealistically short deadline could even be seen as interference in the democratic process.
3) Proposed changes would lead to ambiguity instead of more clarity
The third major issue is that the current proposal remains unclear as to which types of user notices online platforms would have to prioritise and address within 48 hours, as it only refers to generic “non-compliance with the law”. In practice this could cover a wide array of issues: ranging from the lack of a label indicating it’s a political ad or missing transparency information, to (unintentionally) incorrect or inaccurate information and purposely misleading content. At the same time, the proposed obligations would also require platforms to contact the political sponsor behind an ad within those 48 hours. By creating more ambiguity, the suggested changes would only make the process less efficient.
Aside from clarifying the scope of what has been proposed by MEPs and Member States in recent months, it still remains unclear how a dispute can be reasonably resolved by those services running the ad concerned under the proposed mechanism, while it also doesn’t make clear whose views should be considered trustworthy in resolving disputes. In hotly contested cases, this would simply result in a user-versus-advertiser standoff, without any benefits.
4) Decisions should be based on expert knowledge
Everyone will agree that it is good to be extra careful with political advertising during electoral campaigns. However, this actually requires giving a much bigger role to trustworthy experts and organisations. They are the ones that can provide the required knowledge about local issues and have the specific regulatory expertise on which platforms can rely when assessing whether political ads comply with the rules or not. That would allow online platforms to prioritise based on quality and importance when addressing potentially problematic content, rather than just relying on user notices and the quantity in which they come. Making the new rules as effective as possible requires a more accurate and independent approach to regulating political advertising.
Policymakers are aiming to have the TTPA rules in place for the 2024 European elections. To see tangible benefits by then, Europe needs to ensure that the new transparency rules are efficient and workable. Even when some of the suggestions that have recently been tabled might appear to be heading in the right direction, it remains important to constantly keep weighing and reassessing the potential impact the rules will have on political advertising. Imposing a strict 48-hour deadline for addressing user notices will likely prove counterproductive if implemented.
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