THE REGULATION OF DIGITAL POLITICAL ADVERTISING
Guest post by Roël Remak
Digital political advertising has seen a quite the rise in the last few years. in the 2020 US mid-terms, an estimated 1,6 billion dollars was spent on online advertising, doubling the amount of the 2017-2018 election cycle. This amount to about 18% of the total spent on advertising in that year, which is a sizeable growth compared to 2-3% share of the four years. The use of digital political ads is not exclusive to the United States, in the UK we can observe a similar trend. In 2017 around 3.2 million was spent on Facebook advertising, making up 42,8% of the total spent on advertising. In 2014 the share of digital advertising was just 1.7%. One I might think that digital political advertising, by virtue of being advertisements, would fall under the already existing advertising laws, but surprisingly that is not exactly the case. Then what about the regulations that the old media has been subjected to for years, are they directly applicable to digital political advertising? No, they are not. These are relatively easy answers for complex questions, because how can such an important topic like politics have an apparent black spot when it comes to the digital dimension? This led me to my central question of this paper: what is the current position of digital political advertising in relation to the existing regulations of political advertising and advertising in general?
The rise of digital political ads shows a clear lack of legislative foresight of lawmakers across Europe, including the European lawmakers themselves. As it turns out the strict European campaign regulations concerning transparency of party financing and paid political advertising are not well equipped to deal with algorithmic platforms like Facebook and their advertising constructions. This essentially gives political parties a way to circumvent these laws and regulations. On a national level we see the same lack of laws and regulations pertaining to this subject. Out of 28 member states that had elections in 2019, only two states had legislation that could be qualified as digital political advertising regulation. This is concerning as social media platforms have showed a political power comparable to that of a broadcaster, but simultaneously don’t have the same regulatory framework applicable. This apparent mismatch in applicability is in part due to how much this new form of advertising differs from the methods of old. One of those main differences is the central role of data. This data in combination with data analytics tools allows for precise targeting of these advertisements. This precise targeting can also be used for a practice called political micro-targeting (PMT). With the use of data and analytics, an almost perfectly tailored message can be given to individuals and target audiences alike. This can have positive consequences like increased political participation and increased interest in a certain campaign. But on the flipside of the coin, it can also have negative consequences, like discouragement of political participation and creating disinterest or apathy for a campaign. Unsurprisingly this field is also not regulated. Another development with the rise of digital political advertising is the degree of commercialization of political advertising. The tools that are used by social media platforms to promote these political parties were originally made for commercial parties that are regulated by the European consumer law. This is quite interesting when you take into account that the directive of unfair commercial practices is not applicable to political advertising, because of fundamental free speech laws. They use the same tools, analytics, data but are again not subject to the same rules. The lack of regulation is the common denominator in the literature that I have consulted. The question of why this is, and what the current position of digital political advertising is in relation to existing regulatory frameworks is not really explored. This gap is where I will position my research question.
The legacy news media
The first regulatory framework which I will be analyzing is that of methods of political advertising and if it could be applicable to digital political content. This framework consists mostly of obligations to newspapers and broadcast organizations, which I’ll call the legacy news media. Most of these obligation stem from the freedom of expression, in unison with the right to free elections. These rules are about: reporting restriction during elections, candidate interviews, equal media coverage and political advertising. Political advertising in this context has some relevant case law surrounding it, because member states like the UK have completely banned the broadcasting of political advertising. The court upheld this ban in the animal defenders International v United kingdom case, ‘citing risk of abuse and risk of arbitrariness,  which was a deviation from cases against Norway and Switzerland rules where the prohibition was in violation of art 10 ECHR. From these cases it can be established that a restriction on political advertising can be allowed if there is a social need that makes this restriction necessary, because the court has acknowledged that that the broadcast media has an immediate and powerful effect on people watching these mediums. If these rules were applied to digital political advertising, it would translate rather poorly. In particular the practices of banning political advertising altogether. First off, it should be noted that social media are not media as in the traditional sense and therefore fall under European e-commerce law. This in combination with the court stating that the internet and social media don’t have the same impact as broadcasted information, would lead to the conclusion that the current framework is not fit to regulate this. A ban would therefore most likely violate free speech laws, especially if it is during an election period But what if we would forgo these conclusions, and would entertain the thought that banning digital political advertising would be possible? Well, this would have interesting consequences for the posts made by the accounts of political parties on social media. Should these posts promoting their political party also be subject to this ban? Well, first off article 10 ECHR could again prove problematic, but what is of even more interest are the implications arising from the E-commerce directive. If the ban would extend to a post made by the account of a political party, we could see a potential violation of article 15, as this would entail a general obligation to monitor the posts made by social media accounts. This article would be relevant as social media like Facebook fall under the definition of hosting service in European case law. Direct application of the current regulations of the legacy news media would therefore have an undesirable effect.
Commercial political advertising
Next up is the directive that regulates unfair market practices. This directive’s core purpose is to prevent unfair commercial practices, like misleading and aggressive practices, that are likely to distort the economic behavior of a consumer. Advertising run on social media platforms is subject to this regulation due to the broadly formulated provisions of the directive, which can even be directly applicable to the new method of influencer marketing. But as I have mentioned before digital political advertising does not fall under the scope of this directive, due to free speech laws. Nonetheless this is not something that should be overlooked. The line between commercial advertising and digital political advertising is getting very slim, which is problematic. Concerns for issues of manipulation, loss of autonomy, micro-targeting arise from the tools that political advertisers have available, like their commercial counterpart. The fact that this regulation is not fit to judge these advertisements, even though they can include the same unfair practices, is troublesome to say the least.
Proposed European action
The last regulatory framework I’ll discuss is a proposal from the European Union regarding the Regulation of Transparency and Targeting of Political Advertising (RPA). In its current form this is still a proposal and therefore has no current legal implications for digital political advertising, it does however provide a future framework for this subject. This proposal has quite extensive implications for the now diverging regulations of member states, because all the provisions mentioned in the proposal are subject to maximum harmonization. The main regulated topics are transparency obligations and the targeting of political advertisements, that would cover most of the aforementioned topics that show a clear lack of regulation. The way in which these provisions are formulated is mostly directed at the services that provide these advertisements, which is reminiscent of how the legacy news media is regulated. The proposal has a regulatory fitness explanation that summarizes that this proposal is fit to deal with the emerging use of political advertising with service providers that are across the border and also makes no distinction between online and offline activities, which is the case with the current offline regulation. An analysis of the relevant articles point to the same conclusion. The use of broad definitions in article 2 makes any paid political advertisement subject to these regulations, while avoiding non-commercial political speech. In regards to transparency we can see regulation similar that of the Imprint requirements for newspapers in the UK, wherein they were required to provide an imprint on al printed election materials as a way of transparency. This transparency provision in the proposal would require a very extensive transparency notice made by platforms . The restrictions on targeted political advertising gives member states the tools necessary to prevent voters from being targeted by political ads, which has been a growing concern for both commercial and political advertising. As a whole this proposal looks quite promising, if it survives the European parliament.
If we were to apply the duck test to digital political advertising in its current form, we can conclude that it looks like political advertising, it has the same goal as political advertising and it is made by the same organizations that make political advertising. In practice this is easier said than done. The legal framework of the legacy media shows clear shortcomings in the applicability to digital political advertising and are in their current state inadequate for this purpose. In a similar vein, the directive concerning unfair market practices is unfit to be applied digital advertising, even though they are getting almost indistinguishable from one another. Well, one distinction can be made, and that is that one is political and the other is not. Therefore, I’ll conclude that the current position of digital political advertising is rather poor in relation to the existing rules and regulation regarding this topic. There is however hope for adequate future regulation pertaining to this subject. The RPA proposal of the European shows a very promising regulatory framework that would harmonize and fix almost all the aforementioned regulatory problems in a slew of provisions provided in this document, as long as it does not get shutdown in the legislative procedure of the European Union.
 Howard Homonoff, ‘2020 Political Ad Spending Exploded: Did It Work?’ (Forbes) <https://www.forbes.com/sites/howardhomonoff/2020/12/08/2020-political-ad-spending-exploded-did-it-work/> accessed 14 December 2022.
 The Political Economy of Facebook Advertising: Election Spending, Regulation and Targeting Online
 ‘In Varietate Concordia?! Political Parties’ Digital Political Marketing in the 2019 European Parliament Election Campaign’ 48 <https://journals-sagepub-com.proxy.library.uu.nl/doi/epub/10.1177/14651165211040728> accessed 14 December 2022.
 Martin Moore, ‘Tech Giants and Civic Power’ (King’s College London) 28–29 <https://kclpure.kcl.ac.uk/portal/en/publications/tech-giants-and-civic-power(b8e837ec-abd8-4838-b8e7-f0059f0de550).html> accessed 16 December 2022.
 Natali Helberger, Tom Dobber and Claes de Vreese, ‘Towards Unfair Political Practices Law: Learning Lessons from the Regulation of Unfair Commercial Practices for Online Political Advertising’ 275.
 Balázs Bodó, Natali Helberger and Claes H de Vreese, ‘Political Micro-Targeting: A Manchurian Candidate or Just a Dark Horse?’ (2017) 6 Internet Policy Review 3 <https://policyreview.info/node/776> accessed 12 December 2022.
 Helberger, Dobber and de Vreese (n 6) 276.
 Helberger, Dobber and de Vreese (n 6).; Art. 2 (d), art. 3 (1) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/
 Stan Diel, ‘New Media, Legacy Media and Misperceptions Regarding Sourcing’ (2017) 5 KOME 104, 105.
 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), art. 10
 ECHR, art. 3 protocol no. 1
 Andrei Richter and David Goldberg, ‘Media Coverage of Elections: The Legal Framework in Europe IRIS Special’ 8–13 <https://www.academia.edu/34199587/Media_coverage_of_elections_the_legal_framework_in_Europe_IRIS_Special> accessed 12 December 2022.
 Michael Harker, ‘Political Advertising Revisited: Digital Campaigning and Protecting Democratic Discourse’ (2020) 40 Legal Studies 151, 158; Richter and Goldberg (n 13) 13.
 Animal Defenders International v. the United Kingdom [GC], no. 48876/08, 22 April 2013, par. 122
 Richter and Goldberg (n 13) 13.; TV Vest As & Rogaland Pensjonistparti v. Norway, no. 21132/05, 11 December 2008, VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, 28 June 2001,
 Harker (n 14) 165.
 Helberger Natali, ‘The Political Power of Platforms: How Current Attempts to Regulate Misinformation Amplify Opinion Power’ (2020) 8 Digital Journalism 842.
 Animal Defenders International v. the United Kingdom [GC], no. 48876/08, 22 April 2013, 119
 ECHR art. 10 and art 3 protocol no.1
 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (E-commerce directive)
 E-commerce directive art. 14
 C-18/18, Eva Glawischnig-Piesczek v Facebook Ireland Limited,  ECLI:EU:C:2019:821.
 Willem Van Boom, Amandine Garde and N Orkun Akseli, The European Unfair Commercial Practices Directive: Impact, Enforcement Strategies and National Legal Systems (2014) 2–3.
 Joasia Luzak and Catalina Goanta, ‘‘#paidpartnership Means More than Money: Influencer Disclosure Obligations in the Aftermath of Peek & Cloppenburg’ (20 September 2022) 188–191 <https://papers.ssrn.com/abstract=4282364> accessed 15 December 2022.
 Helberger, Dobber and de Vreese (n 6) 279–280.
 Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the transparency and targeting of political advertising 2021. (COM/2021/731 final) (RPA)
 Max Zeno van Drunen, Natalie Helberger and Ronan Ó Fathaigh, ‘The Beginning of EU Political Advertising Law: Unifying Democratic Visions through the Internal Market’ (2022) 30 International Journal of Law and Information Technology 181, 182.
 RPA art 3(1)
 RPA Chapter II – Transparency Obligations for Political Advertising Services
 RPA Chapter III – Targeting and Amplification of Political Advertising
 van Drunen, Helberger and Ó Fathaigh (n 29) 184.
 RPA Explanatory Memorandum p. 11
 van Drunen, Helberger and Ó Fathaigh (n 29) 184.
 Harker (n 14) 159.
 van Drunen, Helberger and Ó Fathaigh (n 29) 187.
 ibid 185.
 Referring to “if it looks like a duck, swims like a duck, and quacks like a duck, then it is probably a duck”