Changes from report parliamentary committee draft to plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

▸10 unchanged paragraphs

on the proposal for a regulation of the European Parliament and of the Council on the transparency and targeting of political advertising

(COM(2021)0731 – C90433/2021 – 2021/0381(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2021)0731),

– having regard to Article 294(2) and Articles 16 and 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90433/2021),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the Economic and Social Committee of 23 February 2022,

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the opinion of the Committee on Culture and Education, the Committee on Civil Liberties, Justice and Home Affairs, the Committee on Legal Affairs and the Committee on Constitutional Affairs,

Changed– having regard to the report of the Committee on the Internal Market and Consumer Protection (A90000/2022),(A9-0009/2023),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

RemovedRecital 4: (4) The need to ensure transparency is a legitimate public goal, in conformity with the values shared by the EU and its Member States pursuant to Article 2 of the Treaty on European Union (‘TEU’). It is not always easy for citizens to recognise political advertisements and exercise their democratic rights in an informed manner. Furthermore, the increasingly sophisticated and intense interference by malign foreign actors in our democratic electoral processes through the spread of disinformation should be tackled. Political advertising can be a vector of disinformation in particular where the advertising does not disclose its political nature, where it comes from sponsors outside of the Union and where it is targeted or amplified. A high level of transparency is necessary inter alia to support an open and fair political debate, political campaigns and free and fair elections or referendums and to combat disinformation and unlawful interference, including from third countries. Transparency of political advertising contributes to enabling voters to better understand when they are being presented with a political advertisement, on whose behalf that advertisement is being made, and how they are being targeted by an advertising service provider, so that voters are better placed to make informed choices.

AddedRecital 1: (1) The supply of and demand for political advertising are growing and increasingly cross-border in nature. A large, diversified and increasing number of services are associated with that activity, such as political consultancies, advertising agencies, “ad-tech” platforms, public relations firms, influencers and various data analytics and brokerage operators. Political advertising can take many forms including paid content, sponsored search results, paid targeted messages, promotion in rankings, promotion of something or someone integrated into content such as product placement, influencers and other endorsements. Related activities can involve for instance the dissemination of political advertising upon request of a sponsor or the publication of content against payment or other forms of remuneration, including benefits in kind.

RemovedRecital 4 a (new): (4a) Defamatory advertising and libellous campaigns that deliberately fabricate and spread false information about political actors with the aim of worsening their public image are unacceptable in any democratic system as they undermine the electoral process and hinder political discussion based on facts, ideas and programmes. Member States should undertake all necessary steps to bring an immediate halt to such practices and to investigate them through the appropriate mechanisms and procedures, especially during electoral periods.

AddedRecital 2: (2) Political advertising can be disseminated or published through various means and media across borders both online and offline. It is rapidly increasing as it can be disseminated or published via traditional offline media such as newspapers, television and radio, and also increasingly via online platforms, websites, mobile applications, computer games and other digital interfaces. The latter are not only particularly prone to be offered cross-border, but also raise novel and difficult regulatory and enforcement challenges. The use of online political advertising is strongly increasing, and certain linear offline forms of political advertising, such as radio and television, are also offered online as on-demand services. Political advertising campaigns tend to be organised to make use of a range of media and forms.

RemovedRecital 5: (5) In the context of political advertising, targeting techniques are frequently used. Targeting techniques should be understood as techniques that are used to address a tailored political advertisement only to a specific person or group of persons. Amplification or ad delivery techniques are used to increase the circulation, the reach or the visibility of a political advertisement. Such techniques are used by political advertising publishers and especially by very large online platforms within the meaning of Regulation xxx [the Digital Services Act], to deliver political advertisements to an audience. Delivering advertisements using such techniques involves the use of opaque algorithms and can differ from what the sponsors and providers of advertising services, acting on behalf of sponsors, intended, making some users less likely than others to see particular political advertisements. Given the power and the potential for the misuse of personal data of targeting, including through microtargeting and other advanced techniques, such techniques may present particular threats to legitimate public interests, such as fairness, equal opportunities and transparency in the electoral process and the fundamental right to be informed in an objective, transparent and pluralistic way.

AddedRecital 4: (4) The need to ensure transparency is a legitimate public goal, in conformity with the values shared by the EU and its Member States pursuant to Article 2 of the Treaty on European Union (‘TEU’). It is not always easy for citizens to recognise political advertisements and exercise their democratic rights in an informed manner. Furthermore, the increasingly sophisticated and intense interference by malign foreign actors in our democratic electoral processes through the spread of disinformation should be tackled. Political advertising can be a vector of disinformation in particular where the advertising does not disclose its political nature, where it comes from sponsors outside of the Union or where it is targeted or amplified. A high level of transparency is necessary inter alia to support an open and fair political debate, political campaigns and free and fair elections or referendums and to combat disinformation and unlawful interference, including from third countries. Transparency of political advertising contributes to enabling voters and individuals in general to better understand when they are being presented with a political advertisement on whose behalf that advertisement is being made, as well as how and why they are being targeted by an advertising service provider, so that voters are better placed to make informed choices.

RemovedRecital 8: (8) This situation leads to the fragmentation of the internal market, decreases legal certainty for providers of political advertising services preparing, placing, publishing, promoting or disseminating political advertisements, creates barriers to the free movement of related services, distorts competition in the internal market, including between offline and online service providers as a consequence of the disparity in the level of obligations and compliance between those different types of service providers, and requires complex compliance efforts and additional costs for relevant service providers.

AddedRecital 4 a (new): (4a) Providers of advertising services which are intermediary service providers within the meaning of Regulation (EU) 2022/2065 (Digital Services Act) involved in the presentation of political advertising on their interface or the interface of another service provider should be encouraged to establish, implement and publish tailored policies and measures to prevent the placement of political advertising together with disinformation, including by participation in wider disinformation demonetisation initiatives such as the Code of practice on disinformation.

RemovedRecital 10: (10) A consistent and high level of transparency of political advertising throughout the Union should therefore be ensured when political advertising services are provided, while divergences hampering the free circulation of related services within the internal market should be prevented, by laying down uniform transparency and due diligence obligations for providers of political advertising services guaranteeing the uniform protection of rights of persons and supervision throughout the internal market based on Article 114 of the TFEU.

AddedRecital 5: (5) In the context of political advertising, targeting and ad delivery techniques are frequently used. Targeting techniques should be understood as techniques that are used to tailor political advertisement only to a specific person or group of persons or to exclude them by processing personal data. Ad delivery techniques should be understood as automated techniques of processing of personal data that are used to determine a specific audience, as a specific person or group of persons within the potential audience, for the dissemination of political advertisements. Such techniques are used by political advertising publishers and especially by very large online platforms within the meaning of Regulation (EU) 2022/2065 (Digital Services Act), to deliver political advertisements to a targeted audience based on personal data and on the content of advertisements. Delivering advertisements using such techniques involves the use of opaque algorithms and can differ from what the sponsors and providers of advertising services, acting on behalf of sponsors, intended, making some users less likely than others to see particular political advertisements. Given the power and the potential for the misuse of personal data of targeting, including through microtargeting and other advanced techniques, such techniques may present particular threats to legitimate public interests, such as fairness, freedom of expression, equal opportunities and transparency in the electoral process and the fundame…

AddedRecital 6: (6) Political advertising is currently regulated heterogeneously in the Member States, which in many cases tends to focus on traditional media forms. Specific restrictions exist including on cross-border provisions of political advertising services, which directly affect the capacity to conduct cross-border and pan-European political campaigns. Some Member States prohibit EU service providers established in other Member States from providing services of a political nature or with a political purpose during electoral periods. At the same time, gaps and loopholes are likely to exist in the national legislation of some Member States, as well as in Union legislation, resulting in political advertising sometimes being disseminated without regard to relevant national rules and thus risking undermining the objective of transparency regulation for political advertising.

AddedRecital 8: (8) This situation leads to the fragmentation of the internal market, decreases legal certainty for providers of political advertising services preparing, placing, promoting, publishing, delivering or disseminating political advertisements, creates barriers to the free movement of related services, distorts competition in the internal market, including between offline and online service providers as a consequence of the disparity in the level of obligations and compliance between those different types of service providers, and requires complex compliance efforts and additional costs for relevant service providers.

AddedRecital 9: (9) In this context, providers of political advertising services are likely to be discouraged from providing their political advertising services in cross-border situations. This is particularly true for microenterprises and SMEs, which often do not have the resources to absorb or pass on the high compliance costs connected to the preparation, placement, promotion, publication or dissemination of political advertising in more than one Member State. This limits the availability of services and negatively impacts the possibility for service providers to innovate and offer multi-medium and multi-national campaigns within the internal market.

AddedRecital 10: (10) A consistent and high level of transparency of political advertising throughout the Union should therefore be ensured when political advertising services are provided, while divergences hampering the free circulation of related services within the internal market should be prevented, by laying down harmonised rules on provision of political advertising services, and on transparency and due diligence for sponsors and providers of political advertising services guaranteeing the uniform protection of rights of persons and supervision throughout the internal market based on Article 114 of the TFEU.

Recital 11: (11) Member States should not maintain or introduce, in their national laws, provisions diverging from those laid down in this Regulation, in particular more or less stringent provisions to ensure a different level of transparency in political advertising. Full harmonisation of the transparency and due diligence requirements linked to political advertisement increases legal certainty and reduces the fragmentation of the obligations that service providers meet in the context of political advertising.

Change 2

ChangedRecital 13: (13) This Regulation should neither affect the content of political advertising nor Union or Member States rules regulating the content of political advertising, presentation of political advertisiements, electoral periods and the conduct of political campaigning including advertising bans. Furthermore, this Regulation should not affect, in particular, the fundamental right to freedom of opinion and freedom of speech.

Change 3

RemovedRecital 13 a (new): (13a) In order to support the enforcement of national rules concerning external interference in elections it is necessary to ensure that political advertising sponsored, prepared, placed, promoted, published or disseminated in the Union, or directed to individuals in one or more Member States is only available to sponsors holding the nationality of a Member State or residing in the Union, and to service providers acting on behalf of such sponsors. For the purposes of determining the place of establishment of a sponsor, the place of establishment of entities ultimately controlling the sponsor should be taken into account.

AddedRecital 13 a (new): (13a) The specific needs of micro, small and medium-size enterprises should be taken into account in the application and enforcement of this Regulation, in line with the principle of proportionality. The notion of micro, small and medium-sized enterprises should be understood within the meaning of Directive 2013/34/EU.

Change 4

ChangedRecital 14: (14) The Regulation should provide for a harmonised transparency and due diligence requirementrequirements applicable to economic actors providing political advertising and related services (i.e. activities that are normally provided for remuneration); those services consist in particular of the preparation, placement, promotion, publicationpublication, delivery and dissemination of political advertising. The rules of this Regulation that provide for a high level of transparency of political advertising services are based on Article 114 of the TFEU. This Regulation should also address the use of targeting and amplificationad delivery techniques in the context of the promotion, publication, disseminationdelivery or promotiondissemination of political advertising that involve the processing of personal data. The rules of this Regulation that address the use of targeting and amplificationad delivery are based on Article 16 of the TFEU. Political advertising directed to individuals in a Member State should include advertising entirely prepared, placed, published,promoted, published delivered or promoteddisseminated by service providers established outside the Union but disseminated to individuals in the Union. To determine whether a political advertisement is directed to individuals in a Member State, account should be taken of factors linking it to that Member State, including language, context, objective of the advertisement and its means of dissemination.

Change 5

RemovedRecital 16: (16) The definition of political advertising should include advertising promoted, published or disseminated directly or indirectly by or promoted, published or disseminated directly or indirectly for or on behalf of a political actor. Since advertisements by, for or on behalf of a political actor cannot be detached from their activity in their role as political actor, they can be presumed to be liable to influence the political debate, except for messages of purely private or purely commercial nature. In order to determine that a message is of a purely private or purely commercial nature, account should be taken of all relevant factors, such as its content, the language used to convey it, the context in which it is conveyed, its objective and the means by which it is promoted, published or disseminated. Messages concerning a political actor’s family status or business activities can be purely private or purely commercial. However, messages which are designed and liable to influence, the outcome of an election or referendum, a legislative or regulatory process or voting behaviour cannot be purely private or purely commercial.

AddedRecital 14 a (new): (14a) The specificities of the medium of publication or dissemination of the political advertisement should be taken into account in the application and enforcement of this Regulation.

RemovedRecital 17: (17) The publication, promotion or dissemination by other actors of a message that is designed and liable to influence, the outcome of an election or referendum, legislative or regulatory process or voting behaviour at Union, national, regional, local or at a political party level should also constitute political advertising. In order to determine whether the publication, promotion or dissemination of a message is designed and liable to influence, the outcome of an election or referendum, a legislative or regulatory process or voting behaviour, account should be taken of all factors relevant at the time the message was published, promoted or disseminated, such as the identity of the sponsor of the message, the content of the message, the language used to convey the message, the context in which the message is conveyed, the objective and intention of the message and the means by which the message is published, promoted or disseminated. A clear and substantial link should exist between the message and its design and its liability to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour. Messages on societal or controversial issues may, as the case may be, be designed and liable to influence, the outcome of an election or referendum, a legislative or regulatory process or voting behaviour.

AddedRecital 14 b (new): (14b) This Regulation should recall the importance of the principle of non-discrimination in the cross-border provision of political advertising services in the Union. Providers of political advertising services should not discriminate against sponsors legally established in the Union, including in the case of cross-border services to European political parties, as it would harm the possibility for the conduction of cross-border political campaigns, essential to foster a European public sphere. However, refusal to provide services in a Member State where providers of political advertising services do not conduct business does not constitute discrimination as such service providers should not be compelled to conduct business in a Member State in which they are not economically active.

RemovedRecital 17 a (new): (17a) Commercial advertising and marketing practices can legitimately affect consumers' perceptions of products and services or their buying behaviour, including through brand differentiation based on company actions in the field of corporate social responsibility, delivering social impact, or any other types of purpose-driven engagement. Commercial advertising in some cases may be designed and liable to influence, the outcome of an election or referendum, a legislative or regulatory process or voting behaviour, and where this is not the case, this Regulation should not apply to such advertising.

AddedRecital 14 c (new): (14c) A solid body of evidence shows that foreign actors have been actively interfering in the democratic functioning of the Union and its Member States, particularly during election and referendum periods. Considering that foreign interferences constitute a serious violation of values and principles on which the Union is funded and moreover, foreign interferences, information manipulation and disinformation are an abuse of the fundamental freedoms of expression and information as laid down in Article 11 of the Charter and threaten these freedoms, as well as undermining democratic processes in the EU and its Member States, such as the holding of free and fair elections, it is necessary to take appropriate measures to combat disinformation and prevent such interferences by means of advertisements sponsored by actors coming from outside the Union. To support the enforcement of national rules concerning external interference in elections, it is necessary to ensure that political advertising sponsored, prepared, placed, promoted, published, delivered or disseminated in the Union, or directed to individuals in one or more Member States, regardless of the place of establishment of service providers, can be supplied only to sponsors who are citizens of the Union, and to service providers acting on behalf of such sponsors, in addition to natural or legal persons residing or established in the Union. For the purposes of determining the place of establishment of a sponsor, the place of…

RemovedRecital 17 b (new): (17b) For the effective implementation of the requirements of this Regulation, and in particular to support the sponsors of advertising and service providers acting on behalf of the sponsors in declaring political advertising, and to support providers of political advertising services in facilitating and appropriately administrating such declarations, it is necessary for the Commission to encourage the preparation of guidance, codes of conduct and standards. This should be done in the context of the European Cooperation Network on Elections, and in coordination and cooperation with other relevant structures including the European Regulators Group for Audiovisual Media (ERGA) and stakeholders from the civil society and industry.

AddedRecital 15: (15) There is no existing definition of political advertising or political advertisement at Union level. A common definition is needed to establish the scope of application of the harmonised transparency obligations and rules on targeting and ad delivery. This definition should cover the many forms that political advertising can take and any means and mode of publication or dissemination within the Union, regardless of whether the source is located within the Union or in a third country.

RemovedRecital 18: (18) Practical information from official sources strictly limited to the organisation and modalities for participation in the elections or referendums should not constitute political advertising.

AddedRecital 16: (16) The definition of political advertising should include advertising prepared, placed, promoted, published, delivered or disseminated directly or indirectly by or prepared, placed, promoted, published, delivered or disseminated by any means directly or indirectly for or on behalf of a political actor. Since advertisements by, for or on behalf of a political actor cannot be detached from their activity in their role as political actor, they can be presumed to be liable to influence the political debate, or the outcome of an election or referendum, except for messages of purely private or purely commercial nature. In order to determine that a message is of a purely private or purely commercial nature, account should be taken of all relevant factors, such as its content, the language used to convey it, the context in which it is conveyed, its objective and the means by which it is promoted, published or disseminated. Messages concerning a political actor’s family status or business activities can be purely private or purely commercial. In addition, the definition of political advertising should include prepared, placed, promoted, published, delivered or disseminated messages which are liable to influence the outcome of an election or referendum or a legislative or regulatory process or voting behaviour. Those messages cannot be considered as purely private or purely commercial. Those messages can originate from any natural or legal person, including from official sources, suc…

RemovedRecital 19: (19) Political views and opinions expressed for journalistic purposes or under the editorial responsibility of a service provider, in the programmes of audiovisual media including linear and non-linear broadcasts or published in printed media, should not be considered political advertising and should not be covered by this Regulation, if no payment is provided by a third party for the expression of the views or opinions. Journalistic practices established either in national law or by media and press councils in accordance with Union law, including the Charter of Fundamental Rights, should be followed and should prohibit and prevent any form of covert advertising. Such political views and opinions which are additionally promoted, published or disseminated by service provider should be considered to be political advertising.

AddedRecital 17: (17) The promotion, publication, delivery or dissemination by other actors of a message that is liable to influence, the outcome of an election or referendum, legislative or regulatory process or voting behaviour or the public opinion on societal or controversial issues at Union, national, regional, local or at a political party level should also constitute political advertising. A legislative or regulatory process should include decision making having binding effects of general application at the local, regional, national or European level. In order to determine whether the publication, promotion or dissemination of a message is liable to influence, the outcome of an election or referendum, a legislative or regulatory process or voting behaviour, account should be taken of all factors relevant at the time the message was promoted, published, delivered or disseminated, such as the identity of the sponsor of the message, the form and the content of the message, the spoken or written language used to convey the message, the context in which the message is conveyed, the objective of the message and the means by which the message is promoted, published, delivered or disseminated, the audience targeted and the objective of the message.

RemovedRecital 21: (21) It is necessary to define political advertisement as an instance of political advertising. Advertisements include the means by which the advertising message is communicated, including in print, by broadcast media on web pages showing results from search engine queries or via an online platforms service;

AddedRecital 17 a (new): (17a) Communication of a political party with its current or former members is an inherent part of the membership in a political party and should not constitute political advertising.

RemovedRecital 26: (26) In order to cover the broad range of relevant service providers connected to political advertising services, providers of political advertising services should be understood as comprising providers involved in the preparation, placement, promotion, publication and dissemination of political advertising. For example, providers of political advertising services may initiate political advertising services on behalf of sponsors. Political advertising publishers should be understood as providers of political advertising services. The provision of targeting and amplification techniques in the context of political advertising should be understood to be a political advertising service;

AddedRecital 17 b (new): (17b) Commercial advertising and marketing practices can legitimately affect consumers' perceptions of products and services or their buying behaviour, including through brand differentiation based on company actions in the field of corporate social responsibility, delivering social impact, or any other types of purpose-driven engagement. Commercial advertising in some cases may be liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour, in which case this Regulation should apply.

RemovedRecital 26 a (new): (26a) Providers of purely ancillary services in relation to political advertising, which are provided in addition to and which merely complement the preparation, placement, promotion, publication and dissemination of political advertising, should not be understood as providers of political advertising services within the meaning of this Regulation. Ancillary services are services that typically depend on and complement a political advertising service. Such services include transportation, financing and investment, purchasing, sales, catering, marketing, computer services, cleaning and maintenance.

AddedRecital 17 c (new): (17c) For the effective implementation of the requirements of this Regulation, and in particular to support the sponsors of advertising and service providers acting on behalf of the sponsors in declaring political advertising, and to support providers of political advertising services in facilitating and appropriately administrating such declarations, it is necessary for the Commission to draw up common guidance.

RemovedRecital 26 b (new): (26b) A sponsor should be understood as the person on whose behalf political advertising is prepared, placed, promoted, published or disseminated, for instance an individual candidate in an election or a political party.

AddedRecital 18: (18) Practical information from official sources strictly limited to the announcement of elections or referendums or of the modalities for participation in the elections or referendums should not constitute political advertising.

RemovedRecital 26 c (new): (26c) Political advertising publishers should be understood as providers of political advertising services, usually at the end of the chain of service providers, promoting, publishing and disseminating political advertising by broadcasting, making it available through an interface or otherwise bringing it to the public.

AddedRecital 19: (19) The media contribute to the well-functioning of democratic processes and play an essential role in the freedom of expression and right to information, particularly during election periods. They provide a space for public debate and contribute to public opinion-forming. This Regulation should not affect the editorial freedom of the media. Political views and opinions or other editorial content expressed or disseminated for journalistic purposes or under the editorial responsibility of a media service provider should not be considered political advertising and should not be covered by this Regulation, if no payment or other remuneration is provided by third parties specifically for the expression of the views or opinions. Such political views and opinions which are additionally promoted, published or disseminated by service provider should in any case be considered to be political advertising. Journalistic practices established either in national law or by media and press councils in accordance with Union law, including the Charter of Fundamental Rights, should apply. Any form of surreptitious advertising should be prohibited.

RemovedRecital 27: (27) The notion of political advertising services should not include messages that are shared by individuals in their purely personal capacity. Individuals should not be considered as acting in their personal capacity if they are publishing messages the dissemination or publication of which is paid for.

AddedRecital 19 a (new): (19a) Media literacy is central to allow individuals to use media effectively and safely. It is also an essential skill for the public to benefit from the access to information on political advertisement provided by this Regulation. Therefore, it is important to promote the development of media literacy in Member States and at Union level, in all sections of the society, for individuals of all ages.

RemovedRecital 28: (28) Once the sponsor declares advertising to be political, this should be clearly indicated to other service providers involved in the political advertising services. In addition, once advertising has been identified as political advertisement, its further dissemination should still comply with transparency and due diligence requirements. For instance, when political advertising is shared organically, the advertising should still be labelled as political advertising.

AddedRecital 21: (21) It is necessary to define political advertisement as an instance of political advertising. Advertisements include the means by which the advertising message is communicated, including in print, by broadcast media, online media portals, on web pages showing results from search engine queries or via an online platforms service.