Statement of the Association of Commercial Television on the proposal for a regulation of the European Parliament and of the Council on the transparency and targeting of political advertising
APRIL 2024
On Tuesday 27 February 2024, the European Parliament approved by a large majority in plenary the new rules on transparency in political advertising, following a political agreement on the regulation reached by the European Parliament, the Council of the EU, and the European Commission on 6 November 2023. The adopted legislation was also formally approved by the Council on 11 March 2024, the European Parliament signed the Regulation on 13 March 2024 and the Regulation was subsequently published in the Official Journal of the EU, entering into force 20 days after its publication.
The proposal was put forward by the European Commission as part of the European Democracy Action Plan to complement the Digital Services Act on the specific issue of transparency of online political advertising. The Regulation aims to address various concerns raised by the prevalence of online political advertising, such as the lack of transparency of individual advertisements and campaigns, the misuse of personal data, and the potential exploitation of these loopholes by political actors.
While we generally welcome the consensus reached on the adopted document, which has the potential to bring more transparency and ensure the protection of personal data in the environment of online political advertising, we must also express our concern that the text of the Regulation still contains a number of shortcomings that were repeatedly pointed out during the legislative process and that we as private broadcasters also commented on in our July 2022 statement. Although we believe that the Regulation was intended as a stepping stone to ensure transparency of online campaigns, the text of the Regulation has not fully met these ambitions (refer to the vague definitions that persist in the final text).
We appreciate that the final text of the definition of political advertising includes criteria based on remuneration, however, we must express some disappointment that the definition has not been clarified and the Regulation does not specify political advertising exclusively as online political advertising to avoid, inter alia, undermining or affecting the existing functioning regulatory frameworks and national definitions of political advertising since the internal market problems with regard to political advertising only concern the online environment as we have already stated in our previous comment.
On the other hand, provisions that we very much welcome and that were included in the final text of the Regulation after the negotiations on the wording are the clauses relating to political opinions expressed in programmes and the amendments adopted to ensure that audiovisual media services are not excessively affected, i.e. that the text of the adopted Regulation is not inconsistent with the AVMSD.
As regards the provisions on transparency, we consider it very beneficial that repositories have been included in the text of the Regulation; this step is essential to ensure transparency not only for individual advertisements but also for advertising campaigns. As we have stated before, we welcome the intention to address non-transparent political advertising and its impact on the democratic process and democratic society, we believe that internal market issues are fundamentally linked to the online sphere while traditional political advertising in traditional media – if it is allowed at all – is already limited to the national level and strictly regulated.
In our July 2022 statement, we emphasised as absolutely essential that online platforms should be directly responsible for any political or other advertising content shown to consumers through them and should make the assessment themselves rather than relying on third-party statements given that we as linear broadcasters have long been subject to such a requirement. Different rules contribute to inequality in the market, which we consider highly inappropriate. We believe that the adopted Regulation will resolve the most pressing inequalities that we pointed out in our previous statement.
On the other hand, we have to say that we welcome the clarifications contained in Article 15 where more effective mechanisms are introduced to ensure that all affected players “examine” and “make best efforts to examine” the sponsors’ declarations. As we have mentioned before, we as commercial TV broadcasters play a major role in informing the public by providing diverse, credible, and verified news and political coverage, all while being regulated to the maximum extent possible. There is no reason for digital platforms to shirk responsibility for the advertising content they select, place, promote, and ultimately profit from.
In conclusion, the final text of the Regulation has been significantly improved, supplemented, and linked to existing legislation (e.g. AVMSD, DSA, and GDPR) following the legislative process. Nevertheless, it still contains a number of provisions that are questionable and could be resolved during implementation. We consider it essential to ensure that the new rules are not counterproductive, hindering political expression rather than encouraging it transparently and effectively. Thus, while our statement points out many of the pitfalls of the Regulation, in general principle we welcome the effort to establish rules for online providers of political advertising services, even though in our view, this could have been achieved more appropriately, i.e. by adopting a regulation that would have maintained the existing frameworks for regulated (traditional) players and that would have applied fully equivalent rules for the “new” players who are not yet regulated.–
JULY 2022
With regard to the ongoing negotiations on the proposal for a regulation of the European Parliament and of the Council on transparency and targeting of political advertising, we consider it necessary to emphasise at the outset that the problems of the internal market relating to political advertising concern only the online environment, and our opinions, which we set out below, follow from this real situation.
In our opinion, a clarification of the definition of political advertising in the sense that political advertising in the proposal will mean exclusively online political advertising is essential for the establishment of a healthy market, inter alia in order to ensure that the current well-functioning regulatory frameworks and national definitions of political advertising are not undermined or affected. Given the fact that political advertising is enshrined in national legislation in the Member States in some way, we emphasise that it is essential to assess very carefully how the proposed legislation corresponds to the existing national definitions of political advertising.
We welcome the intention to address non-transparent political advertising and its impact on the democratic process and democratic society. In line with the stated objectives and the impact assessment, we see that internal market issues are essentially linked to the online sphere, while traditional political advertising in traditional media, if it is allowed, is limited to the national level and strictly regulated.
We also emphasise that it is absolutely essential that online platforms are also directly responsible for all advertising content – political or other – shown to consumers through them and that they make this assessment themselves rather than relying on third-party statements. This solution would be much more effective; in this context, it should be noted that at present, this requirement is already imposed on us as linear broadcasters, and therefore, the different rules contribute to inequality in the market, which we consider highly inappropriate. We, as commercial broadcasters, play a major role in informing the public by providing diverse, credible and verified news and political coverage while being regulated to the maximum extent possible. There is no reason for digital platforms to shirk responsibility for the advertising content they select, place, promote and ultimately profit from.
We understand that the underlying rationale for the regulation is to address the online sphere, i.e. addressing the gap between unregulated and regulated players, and we therefore welcome efforts to set rules for online providers of political advertising services. This can best be achieved by focusing the measures on online service providers, specifically by aligning obligations for video sharing platforms and social networks. We thus call for the adoption of a regulation that maintains the existing frameworks for regulated (traditional) players, thereby respecting the national regulatory framework and applying equivalent rules for unregulated players.
In respect of unlabelled political advertising, we believe, like other European associations of linear broadcasters, that it should not be published at all unless it meets the rules of transparency.
We believe that it is essential that online political advertising service providers should be able to link specific unlabelled political ads to legal or natural persons, i.e. they should verify the identity of customers before publishing the ads. Platforms must therefore be obliged to maintain transparent and up-to-date repositories.
We believe that the proposed regulation should not aim to facilitate the cross-border provision of political advertising services. Political advertising is not a service like other services, given its impact on our democracy. The aim should be to redress imbalances and protect national democratic debate, not to promote cross-border business models.
Like our partner association ACT, we welcome the clarifications proposed by the French Presidency in Recital 19 and Article 2 (2) regarding political views expressed in programmes and alignment with the definitions in the Audiovisual Media Services Directive (AVMSD).
We also support all other proposals for changes to ensure that audiovisual media services are not disproportionately affected and are consistent with the AVMSD.
