Guest post by Anna Kudyk & Julia Kalus

Influencer Law Clinic series

1/27/20224 min read

Social media platforms have changed the rules of the game for political candidates. In the past the tools available for campaigning were radio, newspapers, and television. Currently, the role of publisher and broadcaster has been taken over by online platforms. Their power is incomparably higher due to the acquisition of data. However, they are not held accountable by the same standards as traditional marketers due to the regulatory gap. In 2016 we learnt the consequences of lack of disclosure in political advertising as Facebook ran advertisements that were purchased by Russia with the aim of influencing the 2016 Presidential elections in the US. Their design was aimed at reinforcing divisions around controversial topics like gun controls and race relations. Another scandal involving Facebook emerged in the form of ads coming from the candidate itself. Trump’s campaign hired Cambridge Analytica, the political consulting firm specialising in using data science methodologies, which exploited the data of millions of Facebook users. Company created a system that targeted voters with personalised ads [1].

The scandal demonstrated the massive threat to the integrity of elections. Lawmakers laid pressure on Facebook to increase transparency of online political advertising. In response, the company launched a publicly searchable ads archive. The goal was to allow researchers to keep companies accountable by reporting disinformation [2]. However, it has been heavily criticised by not-for-profit Mozilla due to the lack of basic features like ad targeting criteria and engagement metrics. Group of sixty academic researchers claimed that it hinders their work as it is impossible to obtain an overview of all the sponsored posts running on the platform [3]. The tech giant has no incentive to circumvent its main source of revenue, mainly ad targeting. It is in the hands of regulators to protect the electoral process.

In the reality of the pandemic, influencers became new actors present in political advertising. Their participation was most noticeable when it comes to advertising and promoting vaccination. The role of influencers was to spread knowledge and fight the myths surrounding the vaccines, which became a subject of a political debate and conflicts. This sort of campaign was organized in Summer of 2021 by the White House. As a consequence, around 50 Twitch Streamers, Youtubers and Tik-tok stars were hired and created, as described by the New York Times, “Influencer Army” [4]. What is most interesting in this program, is that the “Army” was mostly created of so-called “local micro influencers”, being influencers who dispose with around 5.000 up to 10.000 followers [5].

Despite the fact that the idea of the engagement of the influencers in the promotion of vaccinations seems highly desirable, it is perceived as controversial by some. Most importantly, as in case of advertising products such as clothing or cosmetics, influencers should have the duty to disclose that their content is created for the governmental campaign. However, when it comes to bigger scandals, such as the above-mentioned Cambridge Analytica case, the mere duty to disclose is not sufficient. Therefore, in the area of the growing significance of social media in elections or governmental campaigns, there is a pressing need for regulation in this area.

Those alarming situations came rightly to the attention of the European Union legislators. On 25 November 2021 European Commission has proposed Regulation on transparency and targeting of political adverts to protect the integrity of elections. The Commision has even named the proposal as the “Democracy package”. The main aim of the measure is to enable citizens to see whether they are looking at paid political content and who is the sponsor of it. In the scope of Regulation political ad definition is given, which includes a message from a political actor or on his/her behalf or publication being able to ‘influence the outcome of elections’. Main measures proposed are labels including an indication that advertisement is political, name of the funder and a transparency notice or its retrieval address. The last requirement shall possess a number of information like amounts spent, link to the specific elections and information how the ad is targeted [6]. According to the legislators those measures are necessary in the thriving and democratic society.

As a consequence of the regulation, some new duties will be imposed on the platform and media publishers. Not only will it be required to indicate when the content contains political speech, but also mention the aim of it and the broader context, which is a considerable advantage as it raises the awareness of the audience. What is very interesting and in our opinion beneficial, is that according to the proposal, the entire production chain of such an advertisement, including the PR, data broker and the online platform is responsible to adhere to the Articles of the Regulation. Another interesting fact about the proposed Regulation is that the national Data Protection Authorities will be responsible for the enforcement of the regulation.

For now, there exists only the proposal of the Regulation. However, the aim of the Commission is to have it implemented by all Member States in 2023 in order to make the 2024 elections meet the highest attainable democratic standards [7]. The whole proposal is a addition to the already existing ePrivacy framework (including the GDPR and the Digital Service Act).

The proposal can be interpreted as the beginning of reforms and new legislations and attempt to keep up with the internet governance area. Let’s hope that the Commission goal will be reached!