HomeInsightsPolitical advertising: Council of the EU formally adopts proposed Regulation

In 2021, the Commission proposed new rules to address the dangers posed by information manipulation and foreign interference in elections. As such, the Regulation (a summary of which was previously reported by Wiggin) seeks to make it easier for citizens to recognise political advertisements both off and online, to understand who is behind them and to know if they are being targeted with such advertising. On 7 November 2023, the European Parliament and Council concluded their trilogue negotiations and reached a provisional agreement on the terms of the Regulation, details of which were previously reported by Wiggin. That agreement was formally adopted by the European Parliament on 27 February 2024 and, on 11 March 2024, the Council of the EU formally adopted that agreement as well. This marks the end of the negotiations on the final text of the Regulation.

Those who provide services to prepare, place, promote, publish, deliver or disseminate messages on behalf of political actors, or which are liable or designed to influence the outcome of an election, referendum, voting behaviour or legislative process at EU, national, regional or local level (“political advertising”), and those who publish such political advertising, should begin to prepare themselves for compliance with the numerous obligations under the Regulation. For example, providers of political advertising services will have to keep records of their services, the payment and other benefits received for providing the services and details of the person requesting their services (the “sponsor”). Political advertising publishers must ensure that each political advertisement is labelled as such, that it identifies the sponsor, the election with which it is linked and whether it has been subject to targeting or ad-delivery techniques, and that it is accompanied by a transparency notice containing potentially up to 13 pieces of information, including the amounts paid for the advertising and how viewers can submit complaints where they believe the advertising breaches the Regulation. Publishers must also submit all online political advertising and related transparency notices to a public European repository for online political advertisements (which the European Commission must establish within 24 months from the entry into force of the Regulation) no later than 72 hours after publication.

As previously reported, the Regulation only permits targeting or ad-delivery techniques (optimisation techniques used to increase circulation) that involve the processing of personal data in the context of online political advertising, where the personal data has been collected from the data subject, where explicit and separate consent has been given for processing for the purpose of political advertising, and the techniques do not involve profiling using special category personal data (racial or ethnic origin, political opinions, religious beliefs etc).

The Regulation will soon be published in the EU Official Journal and will come into force within 20 days of that date.  The requirements under the Regulation will apply 18 months from the date of entry into force, apart from the obligation on providers of political advertising not to make their services subject to discriminatory restrictions based solely on the place of residence or establishment of the person requesting the creation or publication of the political advertisement.  This provision, which seeks to ensure the public sees a balanced range of political advertising, will apply immediately on the date on which the Regulation comes into force.

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