Changes from report parliamentary committee draft to plenary report

AddedRecital 47 c (new): (47c) This should also include repeatedly requesting a user of the service to make a choice where such a choice has already been made, making the procedure of cancelling a service significantly more cumbersome than signing up to it, or making certain choices more difficult or time-consuming than others or by default settings that are very difficult to change, and so unreasonably bias the decision making of the user of the service, in a way that distorts and impairs their autonomy, decision-making and choice. However, rules preventing dark patterns should not be understood as preventing providers to interact directly with users of the service and to offer new or additional services to them. The systematic use of dark patterns, unclear consent agreements, misleading information, and insufficient time to read terms and conditions are common practices to make it difficult for users of the service to have clear information and control in the context of the surveillance-based online advertising industry.

RemovedArticle 1 – paragraph 1 – point b: (b) harmonised rules on the use of targeting and amplification techniques in the context of the publication, dissemination or promotion of political advertising that involve the processing of personal data.

AddedRecital 47 d (new): (47d) In order to protect individuals with regards to the way and purposes for which their personal data is processed, and in particular in contexts relevant for influencing their democratic choices and their involvement in the public debate, as well as to protect democracy and the integrity of elections, it is necessary to complement Regulations (EU) 2016/679 and (EU) 2018/1725 by adding further restrictions, which should take the form of strict limitations on the processing of personal data for targeting and ad delivery of online political advertising, based on Article 16 of the TFEU.

RemovedArticle 1 – paragraph 2: 2. This Regulation shall apply to political advertising sponsored, prepared, placed, promoted, published or disseminated in the Union, or directed to individuals in one or several Member States, irrespective of the place of establishment of the sponsor or the advertising services provider, and irrespective of the means used.

AddedRecital 47 e (new): (47e) Targeting and ad delivery techniques based on certain conditions and on strictly limited amount of provided personal data that are not special categories of personal data within the meaning of Article 9 of Regulation (EU) 2016/679 or of Article 10 of Regulation (EU) 2018/1725 can be useful in disseminating political advertising and information and in reaching out and informing citizens.

RemovedArticle 1 – paragraph 2 a (new): 2a. Political opinions expressed under the editorial responsibility of a service provider, in the programmes of audiovisual media, published in printed or in online media shall not be considered political advertising when they are prepared, placed, promoted, published or disseminated without any form of payment or equivalent remuneration from a third party.

AddedRecital 47 f (new): (47f) Targeting and ad delivery techniques that involve the processing of personal data should only be allowed based on personal data which are explicitly provided by the data subject to the advertising publisher for the specific and sole purpose of receiving targeted political advertisement. Providers should not request consent where the data subject exercises his or her right to object by automated means using technical specifications, in line with Article 21(5) of Regulation (EU) 2016/679. In the event that the data subjects refuses to consent, or has withdrawn consent, he or she should be given other fair and reasonable options to access information society services. Refusing consent should not be more difficult or time consuming to the data subject than its giving. The processing of observed or inferred personal data, in line with the European Data Protection Board Guidelines 8/2020 on the targeting of social media users, should not be allowed. Without such restriction imposed on targeting and ad delivery techniques, the targeting and ad delivery of political advertising based on personal data would be likely to result in a high risk to the rights and freedoms of natural persons.

RemovedArticle 1 – paragraph 3 – point a: (a) to contribute to the harmonisation of the internal market for political advertising and related services and its transparent, safe, and effective functioning;

AddedRecital 47 g (new): (47g) Provided personal data should only include categories of personal data explicitly and actively provided by the data subject for the specific and sole purpose of being targeted with political advertisement by the data controller to whom it has been provided. Data subjects should not be targeted with political advertisements by data controllers to whom they have not provided their personal data. When providing the data to the publisher, it should be entered into the publisher’s interface or settings. The processing of any data concerning the data subjects which would otherwise be processed in the course of the normal use of the service, such as metadata, traffic and location data or the content of communications, whether personal or public, should therefore be excluded.

RemovedArticle 1 – paragraph 3 – point b: (b) to protect the fundamental rights and freedoms enshrined in the Union and national law, including the Charter of Fundamental Rights, and to protect natural persons with regard to the processing of personal data.

AddedRecital 47 h (new): (47h) Some well-resourced political candidates or parties might circumvent the restrictions on targeting techniques with in-house services that conduct large-scale political marketing. Therefore, when sponsors process personal data for direct targeted political marketing, such as sending targeted electronic mail or text messages, at a large-scale and on a systematic basis, the restrictions on targeting techniques should apply, regardless of whether a service is involved or not. This does not affect the fact that the restrictions on targeting and ad delivery techniques should not apply to merely direct communication, including personalized electronic mails or text messages that are not targeted direct marketing at a large scale, and organic content published by using online intermediary services without consideration for the placement, publication or dissemination for the specific message.

RemovedArticle 1 – paragraph 4 a (new): 4a. This Regulation shall not affect the content of political advertising or Union or Member States rules regulating the content of political advertising, electoral periods and the organisation and conduct of political campaigning.

AddedRecital 47 i (new): (47i) In order to protect elections and referendums and prevent any undue interference, manipulation and disinformation, it is necessary to add further restrictions regarding targeting and ad delivery in the period immediately preceding the election or referendum .In the 60 days preceding any election or referendum, targeting and ad delivery techniques in the context of political advertising that involve provided personal data should be strictly limited to using location and the languages spoken by the data subject. The fact that a person is a first time voter could also be used as it is important to reach out to such persons and provide them with information regarding the election or referendum. The location of the data subject used to deliver targeted political advertisement should be understood being at the level of the constituency which is applicable in the relevant election or referendum. However, in the Member States which have only one national level constituency for European Parliament elections, the location of the data subject could be understood being at regional or equivalent level in accordance with national law, for political advertising related to those elections.

RemovedArticle 2 – paragraph 1 – point 2 – introductory part: 2. ‘political advertising’ means the preparation, placement, promotion, publication or dissemination, by any means, of a message, unless the message is of a purely private or purely commercial nature:

AddedRecital 47 j (new): (47j) The prohibition and restrictions regarding the processing of personal data for political advertising should not prevent sponsors, political advertising publishers or providers of advertising services, including online platforms, from displaying online political advertising based on contextual information, including keywords. This limitation is proportionate in light of the fact that sponsors have access to other avenues for their political advertising, notably through contextual targeting online and through alternative media offline. This limitation complies with the right to impart information and ideas of general interest which the public is entitled to receive because this right may be circumscribed in some circumstances, if the circumscription is carried out reasonably, carefully and in good faith, and if it is proportionate and justified by relevant and sufficient reasons, in particular, for the protection of the rights of others.

RemovedArticle 2 – paragraph 1 – point 2 – point a: (a) by, for or on behalf of a political actor; or

AddedRecital 47 k (new): (47k) When selecting targeting parameters, sponsors delineate a potential audience for their political advertising. However, depending on the budget they dedicate to their advertising campaign, their political advertisement will not necessarily reach such entire potential audience. The publisher will have to select whom, from that potential audience, will actually receive the political advertisement. In order to prevent the creation of echo chambers and filter bubbles and to prevent demographic skews along race or gender, resulting in forms of discrimination, online platforms should not be allowed to selectively deliver political advertisement within the targeted potential audiences based on further processing of personal data. The actual recipients of the political advertisement should therefore only be randomly selected by the publisher, without any further processing of personal data.

RemovedArticle 2 – paragraph 1 – point 2 – point b: (b) which is designed and liable to influence, the outcome of an election or referendum, a legislative or regulatory process or voting behaviour.

AddedRecital 47 l (new): (47l) The extensive transparency obligations provided for in this Regulation will also be helping to make it impossible to proclaim, unnoticed, opposing and polarizing messages to specific parts of the electorate, because watchdogs, civil society, journalists and other parts of the electorate will be able to perform their scrutiny.

AddedRecital 48: deleted

AddedRecital 49: (49) In order to ensure enhanced transparency and accountability, when making use of targeting and ad delivery techniques in the context of political advertising involving the processing of personal data, controllers should implement additional safeguards. They should adopt and implement a policy describing the use of such techniques to target individuals or deliver the content of their ad, make annual risk assessments of the use of those techniques on the fundamental rights and freedoms of individuals and the society as a whole and keep record of their relevant activities. When publishing, promoting, delivering or disseminating a political advertisement making use of targeting techniques, controllers should provide, together with the political advertisement, meaningful information to allow the concerned individual to understand the logic involved and main parameters of the targeting used, and the use of third-party data and additional analytical techniques, including whether the targeting of the advertisement was further optimised during delivery.

AddedRecital 50: (50) Political advertising publishers making use of targeting or ad delivery techniques should include in their transparency notice information necessary to allow the concerned individual to understand the logic involved and main parameters of the technique used, and the use of third-party data and additional analytical techniques used and a link to the relevant policy of the political advertising service provider. In case the political advertising service provider is different from the advertising publisher the service provider should transmit to the political advertising publisher the internal policy or a reference to it. Providers of advertising services should, as necessary, transmit to the political advertising publisher the information necessary to comply with their obligations under this Regulation. The provision of such information could be automated and integrated in the ordinary business processes on the basis of standards.

AddedRecital 51: (51) In order to further empower individuals to exercise their data protection rights, political advertising publishers should provide additional information and effective tools to the concerned data subject to support the exercise of their rights under the EU data protection legal framework including to withdraw their consent when targeted with a political advertisement. This information should also be easily accessible directly from the transparency notice. The tools made available to the individuals to support the exercise of their rights should be effective to prevent an individual from being targeted with political advertisements, as well as to prevent targeting on the basis of specific criteria and by one or several specific controllers.

AddedRecital 52: (52) The Commission should draw up guidelines to support the exercise of data subjects’ rights in this context.

AddedRecital 53: (53) Information to be provided in accordance with all requirements applicable to the use of targeting and ad delivery techniques under this Regulation should be presented in a format which is easily accessible, complete, clearly visible and user-friendly, including through the use of plain language and suitable for persons with disabilities.

AddedRecital 54: (54) It is appropriate to lay down rules on the transmission of information on targeting and ad delivery to other interested entities. The applicable regime should be consistent with the regime for the transmission of information linked to the transparency requirements.

AddedRecital 55: (55) Providers of political advertising services established in a third country that offer services in the Union should designate a mandated legal representative in the Union that is registered with the national single contact point, to allow for effective oversight of this Regulation in relation to those providers. The legal representative could be the one designated on the basis of Article 27 of Regulation (EU) 2016/679 or the representative designated on the basis of Article 13 of Regulation (EU) 2022/2065 (Digital Services Act). Member States should keep a publicly available register of all legal representatives registered on their territory under this Regulation, and the Commission should keep a publicly available and easily accessible database of legal representatives registered within the Union.

AddedRecital 56: (56) In the interest of the effective supervision of this Regulation, it is necessary to entrust oversight authorities with the competence to monitor and enforce the relevant rules and endow them with resources commensurate with such additional competences. Depending on the legal system of each Member State and in line with existing Union law including Regulation (EU) 2016/679 and Regulation (EU) 2022/2065 (Digital Services Act), different national judicial or administrative authorities may be designated to that effect.

AddedRecital 57: (57) As regards the supervision of online intermediary services under this Regulation, Member States should designate competent authorities and ensure that such supervision is coherent with the competent authorities designated pursuant to Article 38 of Regulation (EU) 2022/2065 (Digital Services Act). Digital Services Coordinators, pursuant to Regulation (EU) 2022/2065 (Digital Services Act), in each Member State should in any event be responsible for ensuring coordination at national level in respect to those matters and engage, where necessary, cross-border cooperation with other Digital Services Coordinators following the mechanisms laid down in Regulation (EU) 2022/2065 (Digital Services Act). In the framework of application of this Regulation, this mechanism should be limited to the national cooperation across Digital Services Coordinators [and should not include the escalation to the Union level as provided by the Regulation (EU) 2022/2065 (Digital Services Act).

AddedRecital 58: (58) For the oversight of those aspects of this Regulation that do not fall within the competence of the supervisory authorities under Regulation (EU) 2016/679, Regulation (EU) 2018/725 and Regulation (EU) 2022/2065 (Digital Services Act), Member States should designate competent authorities to monitor and enforce relevant rules. To support the upholding of fundamental rights and freedoms, the rule of law, democratic principles and public confidence in the oversight of political advertising it is necessary that such authorities are structurally independent from external intervention or political pressure and are appropriately empowered effectively monitor and take the measures necessary to ensure compliance with this Regulation, in particular the obligations laid down in Article 7. Member States may designate, in particular, the national regulatory authorities or bodies under Article 30 of Directive 2010/13/EU of the European Parliament and of the Council13.

AddedRecital 58 a (new): (58a) For the purpose of the exercise of their powers under this Regulation, the competent authorities referred to in Article 15 and the European Data Protection Board should be provided with sufficient resources.

AddedRecital 59: (59) Where rules already exist under Union law regarding the provision of information to competent authorities and cooperation with and between those authorities such as Article 9 of Regulation (EU) 2022/2065 (Digital Services Act), or those contained in Regulation (EU) 2016/679, those rules should apply mutatis mutandis to the relevant provisions of this Regulation.

AddedRecital 60: (60) Authorities competent for the oversight of this Regulation should cooperate with each other both at national and at EU level making best use of existing structures including national cooperation networks, the European Cooperation Network on Elections as referred to in Recommendation C(2018) 5949 final, the European Board for Digital Services as referred to in Regulation (EU) 2022/2065 (Digital Services Act) and the European Regulators Group for Audiovisual Media Services established under Directive 2010/13/EU. Such cooperation should facilitate the swift, secured exchange of information on issues connected to the exercise of their supervisory and enforcement tasks pursuant to this Regulation, including by jointly identifying infringements, sharing findings and expertise, and liaising on the application and enforcement of relevant rules.

AddedRecital 60 a (new): (60a) Within the framework of the European Cooperation Network on Elections, a permanent Network of National Contact Points should be established to serve as platform for the regular exchange of information, and for structured cooperation, between national contact points and the Commission concerning all aspects of this Regulation. It should work in close cooperation with the European Regulators Group for Audiovisual Media Services and other relevant athorities and networks.

AddedRecital 61: (61) With a view to facilitating the effective application of the obligations set out in the regulation, it is necessary to empower national authorities to request from the services providers the relevant information on the transparency of political advertisement. Information to be transmitted to competent authorities could concern an advertising campaign, be aggregated by years or concern specific advertisements. In order to ensure that the requests for such information can be complied with in an effective and efficient manner, and at the same time that the providers of political advertising services are not subject to any disproportionate burdens, it is necessary to set certain conditions that those requests should meet. In the interest of the timely oversight of an election process in particular, providers of political advertising services should quickly respond to requests from competent authorities, and always within 10 working days upon receipt of the measure. In the last month preceding an election or a referendum, an infringement of this Regulation should be deemed to negatively and severely affect individuals’ rights and therefore providers of political advertising services should provide the requested information without undue delay and, in case they are not micro or small enterprises, no later than 48 hours. In the interest of legal certainty and in compliance with the rights of defence, requests to provide information from a competent authority should contain an a…

AddedRecital 62: (62) Member States should designate a national contact point at Union level for the purpose of this Regulation. The contact point should, if possible, be a member of the European Cooperation Network on Elections. The contact point should facilitate cooperation among competent authorities between Member States in their supervision and enforcement tasks, in particular by intermediating with the contact points in other Member States and with other competent authorities in their own.

AddedRecital 63: (63) Member States authorities should ensure that infringements of the obligations laid down in this Regulation are sanctioned by administrative fines or financial penalties. When doing so, they should take into account the nature, gravity, recurrence and duration of the infringement in view of the public interest at stake, the scope and kind of activities carried out, as well as the size and economic capacity of the infringer. In that context, the crucial role played by the obligations laid down in Articles 3a, 5, 7, 7a, 7b and 12 for the effective pursuit of the objectives of the present Regulation should be taken into account and infringements of those Articles should be regarded as particularly serious. Furthermore, they should take into account whether the service provider concerned systematically or recurrently fails to comply with its obligations stemming from this Regulation, including by delaying the provision of information to interested entities, as well as, where relevant, whether the provider of political advertising services is active in several Member States. Financial penalties and administrative fines shall in each individual case be effective, proportionate and dissuasive, with due regard to the provision of sufficient and accessible procedural safeguards, and in particular to ensure that the political debate remains open and accessible.

AddedRecital 63 a (new): (63a) Member States should lay down rules on penalties, including administrative fines and financial penalties, applicable to infringements of this Regulation and should ensure that those rules are effectively enforced. The fines and penalties provided for should be effective, proportionate and dissuasive. Member States may also impose periodic penalty payments for serious and repeated violation of this Regulation. At Union level, the Network of National Contact Points should facilitate the development of a harmonised approach on sanctions applicable at national level.

AddedRecital 65: (65) Member States should publish the exact duration of their electoral periods, established according to their legislation and electoral traditions, sufficiently in advance of the beginning of the electoral calendar.

AddedRecital 67: (67) Within two years after each election to the European Parliament, the Commission should submit a public report on the evaluation and review of this Regulation. In preparing that report the Commission should take into account the implementation of this Regulation in the context of other elections and referendums taking place in the Union. The report should review inter alia the continued suitability of the provisions of this Regulation and its annexes and consider the need for their revision. In particular, the Commission should assess the appropriateness of the scope and definitions and the effectiveness of the obligations, the governance and enforcement provisions, including in the light of technological progress, market developments and new scientific evidence.

AddedRecital 68 a (new): (68a) In the interest of ensuring that a high level of transparency and strengthened individual personal data protections are provided for political advertising in the context of the European Parliament elections 2024, political advertising service providers should ensure that the labelling and transparency notice requirements are complied with immediately, notwithstanding the availability of supplementary elements to be provided by the Commission. Political advertising publishers should make best efforts to ensure the availability of transparency notices notwithstanding the availability of a European repository for online political advertising.

AddedRecital 70: (70) This Regulation is without prejudice to the rules laid down in particular by Directive 2000/31/EC, including the liability rules for intermediary service providers in Articles 12 to 15 of that Directive as modified by Regulation (EU) 2022/2065 (Digital services Act), Regulation (EU) 2022/1925 (Digital Markets Act), Directive 2002/58/EC, as well as Directive 2010/13/EU, Directive 2000/31/EC, Directive 2005/29/EC, Directive 2011/83/EU, Directive 2006/114/EC, Directive 2006/123/EC and Regulation (EU) 2019/1150. This Regulation should complement the Union data protection acquis, in particular Regulations (EU) 2016/679 and (EU) 2018/1725 and Directive 2002/58/EC and provide for specific data protection rules thereto. This Regulation does not provide for a legal ground that satisfies the requirements of Article 6 of Regulation (EU) 2016/679 or Article 5 of Regulation (EU) 2018/1725 for the processing of personal data for the purpose of political advertising.

AddedRecital 71: (71) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on 20 January 2022.

AddedArticle 1 – paragraph 1 – introductory part: 1. This Regulation lays down harmonised rules on:

AddedArticle 1 – paragraph 1 – point a: (a) the provision of political advertising services, and on transparency and due diligence for sponsors and providers of political advertising services, that require them to provide, collect, retain, disclose and publish information connected to the provision in the internal market of such services;

AddedArticle 1 – paragraph 1 – point b: (b) the use of targeting and ad delivery techniques in connection with the preparation, placement, promotion, publication, delivery or dissemination of political advertising, in the context of the provision of political advertising services, that involves the processing of personal data;

AddedArticle 1 – paragraph 1 – point b a (new): (ba) the supervision and enforcement of this Regulation, including as regards the cooperation and coordination between the competent authorities.

AddedArticle 1 – paragraph 2: 2. This Regulation shall apply to political advertising that is sponsored, prepared, placed, promoted, published, delivered or disseminated in the Union, or that is directed to individuals in one or several Member States, irrespective of the place of establishment of the sponsor or the advertising services provider concerned, and irrespective of the means used.

AddedArticle 1 – paragraph 2 a (new): 2a. Political views and opinions and other editorial content expressed under the editorial responsibility of a media service provider shall not be considered political advertising unless specific payment or other remuneration is provided for their preparation, placement, promotion, publication, delivery or dissemination by third parties.

AddedArticle 1 – paragraph 3 – point a: (a) to contribute to the harmonisation and proper functioning of a transparent, safe, predictable and trusted internal market for political advertising and related services;

AddedArticle 1 – paragraph 3 – point b: (b) to protect the fundamental rights and freedoms enshrined in the Union and national law, including those enshrined in the Charter of Fundamental Rights, and, in particular, to protect natural persons with regard to the right to privacy and the processing of personal data.

AddedArticle 1 – paragraph 4 – point b: (b) Directive 2002/58/EC;

AddedArticle 1 – paragraph 4 – point f: (f) Directive 2010/13/EU;

Added1

AddedArticle 1 – paragraph 4 – point i: (i) Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act), OJ L 277, 27.10.2022, p.1;

AddedArticle 1 – paragraph 4 – point i a (new): (ia) Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act), OJ L 265, 12.10.2022, p. 1.

AddedArticle 1 – paragraph 4 a (new): 4a. The data protection rules on processing of personal data provided for in this Regulation shall be considered as specific data protection rules to the general rules laid down in the Regulations (EU) 2016/679 and (EU) 2018/1725. None of the provisions in this Regulation can be applied or interpreted in such way as to diminish or limit level of protection offered by the right to respect for private life and protection of personal data and by the right of freedom of expression as protected in the Charter of Fundamental Rights and in the Union law on data protection and privacy, in particular by Regulations (EU) 2016/679 and (EU) 2018/1725.

AddedArticle 1 – paragraph 4 b (new): 4b. This Regulation shall not affect the content of political advertising, or Union or Member States rules regulating the content of political advertising, electoral periods and the organisation and conduct of political campaigning.

AddedArticle 2 – paragraph 1 – point 2 – introductory part: 2. ‘political advertising’ means the preparation, placement, promotion, publication, delivery or dissemination, by any means, of a message:

AddedArticle 2 – paragraph 1 – point 2 – point b: (b) which is liable to influence voting behaviour or the outcome of an election, referendum, or a legislative or regulatory process.