Abstract

The Regulation on the transparency and targeting of political advertising is the first act of EU law directly concerning political marketing. Its aim is to increase the transparency of this activity and protect democratic processes against disinformation, manipulation techniques and foreign interference, including those carried out using social media communication. The key challenge was to define political advertising, covering both classic ads and content published by Internet users, impacting the audience. The EU legislator has made every effort to ensure that this definition does not become a tool for suppressing the freedom of political debate. However, the finally adopted definition is not free from controversy. Doubts are aroused by the fact that it is based on a number of assessments (e.g. as regards the private nature of opinions), features that are hard to prove (mainly as regards intentionality of influencing the outcome of an election or a vote) or dates far from clear (such as “internal activities” of the entities concerned). Online media are primarily concerned with the restrictions contained in Chapter III of the Regulation on the targeting of political advertising carried out with the use of personal data. They seem to be a partial success at best. On one hand, they can be seen as too modest, primarily due to the lack of a ban on micro-targeting and adoption of solutions that only slightly exceed the current legal status. On the other, these provisions are not entirely free from risks to fundamental rights, particularly with regard to free circulation of information. The transparency and due diligence obligations in Chapter II are the least questionable. While they may be burdensome for participants in the political advertising value chain, they do not seem to go beyond the purpose of providing advertising audiences, national authorities and independent researchers with information about the origin of advertising, sources of financing or techniques used to target and deliver political advertising. At the same time, these obligations clearly do not affect the content of political advertising in the sense that they do not provide grounds for considering political messages as illegal or blocked due to their informative content.