In 2021, the Commission proposed new rules to address the dangers posed by information manipulation and foreign interference in elections, 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. A summary and update of the proposal was previously reported by Wiggin on 16 November 2023.

On 7 November 2023, the European Parliament and Council concluded their trilogue negotiations and reached a provisional agreement on the terms of the Regulation, the text of which has now been published. On 27 February 2024, the European Parliament formally adopted that text.

The co-legislators have made several changes to the original proposal. Of particular interest, given the upcoming European Parliament elections, is the requirement that providers of political advertising services shall not make the provision of their services subject to discriminatory restrictions solely based on the place of residence or establishment of the sponsor. Specifically, providers cannot restrict their services to a European political party or a political group within the European Parliament solely on the basis of its place of establishment. “Political advertising” means the preparation, placement, promotion, publication, delivery or dissemination, by any means, of a message by, for or on behalf of a political actor, or which is liable and designed to influence the outcome of an election or referendum, voting behaviour or a legislative or regulatory process, and “sponsor” is the person at whose request a political advertisement is prepared, placed, promoted, published, delivered or disseminated. Significantly, the co-legislators have provided that this obligation will apply from the date on which the Directive comes into force (all other obligations will apply 18 months from that date) which gives platforms which carry political advertising very little time to prepare.

Further, without prejudice to stricter national rules, in the last three months preceding an EU, national or local election or referendum, political advertising services pertaining to that election or referendum shall only be provided to a sponsor who declares they are an EU citizen, a third country citizen living in the EU with a right to vote, or a legal entity established in the EU not ultimately owned or controlled by a third country national (except one living in the EU with a right to vote) or by a legal entity established in a third country. Essentially this bans non-EU based entities from financing political advertising relating to EU elections within that period.

An area in which the co-legislators have added further requirements to those set out in the Commission’s original proposal relate to the targeting and ad-delivery techniques used in online political advertising. These include a requirement that, where such techniques involve the processing of personal data, the advertising is only permitted where the personal data has been collected from the data subject, 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).

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