Summary of the Opinion of the European Data Protection Supervisor on the Proposal for Regulation on the transparency and targeting of political advertising

(The full text of this Opinion can be found in English, French and German on the EDPS website: www.edps.europa.eu)

(2022/C 145/11)

The European Commission adopted on 25 November 2021 a Proposal for a Regulation of the European Parliament and of the Council on the transparency and targeting of political advertising (‘Proposal’), as part of a larger legislative package on ‘Democracy and Integrity of the European Elections’.

The objective of the Proposal is to support the functioning of the single market for political advertising services, as well as to promote high European standards of transparency in political campaigning and free and fair elections in the EU, strengthen the resilience of democratic processes in the EU and combat disinformation, information manipulation and interference in elections.

The EDPS recognises political communication as essential to the participation of citizens, political parties and candidates in democratic life and to the fundamental right to freedom of expression. At the same time, he recalls that these rights and freedoms are interdependent with the rights under Article 7 of the Charter to respect for private and family life, home and communications, and under Article 8 of the Charter to the protection of personal data.

The EDPS welcomes the aim of the Proposal to lay down harmonised rules on the transparency obligations for providers of political advertising and related services and on the use of targeting and amplification techniques. The EDPS has previously expressed serious concerns with regard to the significant risks related to targeted advertising, most recently in his Opinion 1/2021 on the Proposal for a Digital Services Act, as well as in the EDPS Opinion 3/2018 on online manipulation and personal data.

The EDPS agrees that there is a need to complement the provisions applicable to the processing of personal data in the context of political advertising contained in the GDPR and EUDPR. In this regard, the EDPS considers that that the Proposal needs to go even further and to provide additional restrictions on the processing of personal data in the context of targeting political advertising. Given the multitude of risks associated with online targeted advertising, the EDPS urges the co-legislators to consider stricter rules, by (1) providing for a full ban of microtargeting for political purposes; and (2) introducing further restrictions of the categories of data that may be processed for the purposes of political advertising, including targeting and amplification, in particular prohibiting targeted advertising based on pervasive tracking.

The EDPS also offers in the Opinion other specific comments and recommendations on certain elements of the Proposal, such as the relationship with the existing legal framework on data protection, the roles and responsibilities of the actors involved in the political advertising and the cooperation among the authorities responsible for supervision and enforcement, including data protection authorities.

1. INTRODUCTION AND BACKGROUND

1. The European Commission adopted on 25 November 2021 a Proposal for a Regulation of the European Parliament and of the Council on the transparency and targeting of political advertising (‘Proposal’) ( 1 ) . The Proposal had already been envisaged in the European Democracy Action Plan presented by the Commission in December 2020 ( 2 )

2. The Proposal is part of a larger legislative package on ‘Democracy and Integrity of the European Elections’, which includes also a proposal for a Regulation (recast) on the statute and funding of European political parties and European political foundations ( 3 ) , and two proposals for a Directive (recasts) on the rights of citizens residing in a Member State of which they are not nationals in European elections and municipal elections. The EDPS has been separately consulted on the other three proposals.

3. The objective of the Proposal, as stated by the Commission, is to support the functioning of the single market for political advertising services, as well as to promote high European standards of transparency in political campaigning and free and fair elections in the EU, strengthen the resilience of democratic processes in the EU and combat disinformation, information manipulation and interference in elections, by laying down harmonised rules on: — the transparency obligations for providers of political advertising and related services to retain, disclose and publish information connected to the provision of such services; and — the use of targeting and amplification techniques in the context of the publication, dissemination or promotion of political advertising that involve the use of personal data (4).

4. The Proposal complements the proposal for the Digital Services Act (‘DSA’) ( 5 ) , which includes certain general transparency obligations for online intermediaries as regards online advertising. Compared to the DSA, it expands the categories of information to be disclosed in the context of political advertising, as well as the scope of the relevant service providers concerned. While the DSA imposes transparency requirements on online platforms, the Proposal seeks to cover the entire spectrum of political advertising publishers, as well as other relevant service providers involved in the preparation, placement, promotion, publication and dissemination of political advertising ( 6 ) . Additionally, there is complementarity and synergies with the requirement under the DSA to have assessments of systemic risks by very large online platforms stemming from the functioning and use of systems for selecting and displaying advertisement, with actual or foreseeable effects related to electoral processes ( 7 )

5. On 25 November 2021, the Commission requested the EDPS to issue an Opinion on the Proposal, in accordance with Article 42(1) of Regulation (EU) 2018/1725. The EDPS was also informally consulted during the process of preparation of the Proposal, and communicated his informal comments on 10 November 2021. He welcomes the fact that his views have been sought at an early stage of the procedure and encourages the Commission to continue with this good practice. The comments and recommendations in this Opinion are limited to the provisions in the Proposal that are most relevant from data protection perspective.

4. CONCLUSIONS

51. In light of the above, the EDPS makes the following main recommendations: — to further specify that the Proposal complements and is without prejudice to the application of both the GDPR and the EUDPR as regards the processing of personal data in the context of political advertising; — to provide for a full ban of microtargeting for political purposes and introduce further restrictions of the categories of data that may be processed for the purposes of political advertising, in particular prohibiting targeted advertising based on pervasive tracking; — to further clarify the roles and responsibilities of the actors involved in political advertising involving the processing of personal data and the use of targeting and amplification techniques; — to further clarify which actors shall be responsible for the transmission of information to other interested entities; — to explicitly refer both to ‘competent authorities’ and ‘supervisory authorities’ in Article 15(6) of the Proposal.

Brussels, 20 January 2022. Wojciech Rafał WIEWIÓROWSKI

(1) COM(2021) 731 final.

(2) COM/2020/790 final https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2250

(3) COM(2021) 734 final.

(4) Explanatory memorandum, p. 6 and Recital (6) of the Proposal (‘This Regulation should also address 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. The rules of this Regulation that address the use of targeting and amplification are based on Article 16 of the TFEU’).

(5) COM (2020) 825 final ,https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12418-Digital-Services-Act-package-ex-ante-regulatory-instrument-of-very-large-online-platforms-acting-as-gatekeepers and https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12417-Digital-Services-Act-deepening-the-Internal-Market-and-clarifying-responsibilities-for-digital-services

(6) See Explanatory memorandum, pages 3 and 4.

(7) Idem.