Legal provisions of COM(2021)731 - Transparency and targeting of political advertising

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dossier COM(2021)731 - Transparency and targeting of political advertising.
document COM(2021)731 EN
date March 13, 2024


CHAPTER I – GENERAL PROVISIONS

Contents

Article 1 - Subject matter and scope

1. This Regulation lays down:

(a)harmonised transparency obligations for providers of political advertising and related services to retain, disclose and publish information connected to the provision of such services; 

(b)harmonised rules on 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.

2. This Regulation shall apply to political advertising prepared, placed, promoted, published or disseminated in the Union, or directed to individuals in one or several Member States, irrespective of the place of establishment of the advertising services provider, and irrespective of the means used.

3. The aims of this Regulation are: 

(a)to contribute to the proper functioning of the internal market for political advertising and related services;

(b)to protect natural persons with regard to the processing of personal data.

1. This Regulation is without prejudice to the rules laid down in the following:

(a)Directive 2000/31/EC;

(b)Directive 2002/58/EC and Regulation (EU) XXX [ePrivacy Regulation];

(c)Directive 2005/29/EC;

(d)Directive 2006/114/EC;

(e)Directive 2006/123/EC;

(f)Directive (EU) 2010/13;

(g)Directive 2011/83/EU;

(h)Regulation (EU) 2019/1150;

(i)Regulation (EU) 2021/xxx [the Digital Services Act].

Article 2 - Definitions

For the purpose of this Regulation, the following definitions shall apply:

1. ‘service’ means any self-employed economic activity, normally provided for remuneration, as referred to in Article 57 TFEU;

2. ‘political advertising’ means the preparation, placement, promotion, publication or dissemination, by any means, of a message:

(a)by, for or on behalf of a political actor, unless it is of a purely private or a purely commercial nature; or

(b)which is liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour. 

3. ‘political advertisement’ means an instance of political advertising;

4. ‘political actor’ means any of the following:

(a)a political party within the meaning of Article 2(1) Regulation (EU, Euratom) No 1141/2014 or an entity directly or indirectly related to the sphere of activity of such a political party;

(b)a political alliance within the meaning of Article 2(2) of Regulation (EU, Euratom) No 1141/2014;

(c)a European political party within the meaning of Article 2(3) Regulation (EU, Euratom) No 1141/2014;

(d)a candidate for any elected office at European, national, regional and local level, or for one of the leadership positions within a political party;

(e)an elected official within a public institution at European, national, regional or local level;

(f)an unelected member of government at European, national, regional or local level;

(g)a political campaign organisation with or without legal personality, established to achieve a specific outcome in an election or referendum;

(h)any natural or legal person representing or acting on behalf of any of the persons or organisations in points (a) to (g), promoting the political objectives of any of those.

5. ‘political advertising service’ means a service consisting of political advertising with the exception of an online intermediary service within the meaning of Article 2(f) of Regulation (EU) 2021/XXX [Digital Services Act] that is provided without consideration for the placement, publication or dissemination for the specific message;

6. ‘political advertising campaign’ means the preparation, placement, promotion, publication or dissemination of a series of linked advertisements in the course of a contract for political advertising, on the basis of common preparation, sponsorship or funding;

7. ‘sponsor’ means the natural or legal person on whose behalf a political advertisement is prepared, placed, published or disseminated;

8. ‘targeting or amplification techniques’ means techniques that are used either to address a tailored political advertisement only to a specific person or group of persons or to increase the circulation, reach or visibility of a political advertisement;

9. ‘electoral period’ means the period preceding or during or immediately after an election or referendum in a Member State and during which the campaign activities are subject to specific rules; 

10. ‘relevant electorate’ means the body of individuals eligible to vote in the election or referendum being contested in the Member State in which a political advertisement circulates, which may be the entire electorate of a Member State;

11. ‘political advertising publisher’ means a natural or legal person that broadcasts, makes available through an interface or otherwise brings to the public domain political advertising through any medium;

12. ‘controller’ means a controller according to Article 4(7) of Regulation (EU) 2016/679 or, where applicable, to Article 4(8) of Regulation (EU) 2018/1725.

For the purposes of the first paragraph, point (2) messages from official sources regarding the organisation and modalities for participation in elections or referendums or for promoting participation in elections or referendums shall not constitute political advertising.

Article 3 - Level of Harmonisation

1. Member States shall not maintain or introduce, on grounds related to transparency, provisions or measures diverging from those laid down in this Regulation.

2. The provisions of political advertising services shall not be prohibited nor restricted on grounds related to transparency when the requirements of this Regulation are complied with.


CHAPTER II – TRANSPARENCY OBLIGATIONS FOR POLITICAL ADVERTISING SERVICES

Article 4 - Transparency

Political advertising services shall be provided in a transparent manner in accordance with the obligations laid down in Articles 5 to 11 and 14 of this Regulation.

Article 5 - Identification of political advertising services

1. Providers of advertising services shall request sponsors and providers of advertising services acting on behalf of sponsors to declare whether the advertising service they request the service provider to perform constitutes a political advertising service within the meaning of Article 2(5). Sponsors and providers of advertising services acting on behalf of sponsors shall make such a declaration.

2. Providers of political advertising services shall ensure that the contractual arrangements concluded for the provision of a political advertising service specify how the relevant provisions of this Regulation are complied with.

Article 6 - Record-keeping and information transmission

1. Providers of political advertising services shall retain information they collect in the provision of their services, on the following:

(a)the political advertisement or political advertising campaign to which the service or services are connected;

(b)the specific service or services provided in connection to the political advertising; 

(c)the amounts they invoiced for the service or services provided, and the value of other benefits received in part or full exchange for the service or services provided; and

(d) where applicable, the identity of the sponsor and its contact details.

2. The information referred to in paragraph 1 shall be in writing and may be in electronic form. Such information shall be retained for a period of five years from the date of the last preparation, placement, publication or dissemination, as the case may be.

3. Providers of political advertising services shall ensure that the information referred to in paragraph 1 is communicated to the political advertising publisher which will disseminate the political advertisement to enable political advertising publishers to comply with their obligations under this Regulation. That information shall be transmitted, in a timely and accurate manner in accordance with best practice and industry standards, by means of a standardised automated process where technically possible. 

Article 7 - Transparency requirements for each political advertisement

1. In the context of the provision of political advertising services, each political advertisement shall be made available with the following information in a clear, salient and unambiguous way:

(a)a statement to the effect that it is a political advertisement; 

(b)the identity of the sponsor of the political advertisement and the entity ultimately controlling the sponsor;

(c)a transparency notice to enable the wider context of the political advertisement and its aims to be understood, or a clear indication of where it can be easily retrieved.

In this regard, political advertising publishers shall use efficient and prominent marking and labelling techniques that allow the political advertisement to be easily identified as such and shall ensure that the marking or labelling remains in place in the event a political advertisement is further disseminated.


2. The transparency notice shall be included in each political advertisement or be easily retrievable from it, and shall include the following information:

(a)the identity of the sponsor and contact details;

(b)the period during which the political advertisement is intended to be published and disseminated;

(c)based among others on information received in line with Article 6(3), information on the aggregated amounts spent or other benefits received in part or full exchange for the preparation, placement, promotion, publication and dissemination of the relevant advertisement, and of the political advertising campaign where relevant, and their sources;

(d)where applicable, an indication of elections or referendums with which the advertisement is linked;

(e)where applicable, links to online repositories of advertisements;

(f)information on how to use the mechanisms provided for in Article 9(1).

(g)The information to be included in the transparency notice shall be provided using the specific data fields set out in Annex I.

3. Political advertising publishers shall make reasonable efforts to ensure that the information referred to in paragraph 1 and 2 is complete, and where they find this is not the case, they shall not make available the political advertisement.

4. Transparency notices shall be kept up to date and presented in a format which is easily accessible and, where technically possible, machine readable, clearly visible and user friendly, including through the use of plain language. The information shall be published by the political advertising publisher with the political advertisement from its first publication until one year after its last publication. 

5. Political advertising publishers shall retain their transparency notices together with any modifications for a period of five years after the end of the period referred to in paragraph 4.

6. Political advertising publishers which are very large online platforms within the meaning of Article 25 of Regulation (EU) 2021/xxx [the DSA] shall ensure that the repositories that they make available pursuant to Article 30 of that regulation [Digital Services Act] make available for each political advertisement in the repository the information referred to in paragraph 2.

7. Member States, including competent authorities, and the Commission shall encourage the drawing up of codes of conduct intended to contribute to the proper application of this Article, taking into account the specific characteristics of the relevant service providers involved and the specific needs of micro, small and medium-sized enterprises, within the meaning of Article 3 of Directive 2013/34/EU.

8. The Commission is empowered to adopt delegated acts in accordance with Article 19 to amend Annex I by adding, modifying or removing elements from the list of information to be provided pursuant to paragraph 2 where, in the light of technological developments, such an amendment is necessary for the wider context of the political advertisement and its aims to be understood.

Article 8 - Periodic reporting on political advertising services

1. Where they provide political advertising services, advertising publishers shall include information on the amounts or the value of other benefits received in part or full exchange for those services, including on the use of targeting and amplification techniques, aggregated by campaign, as part of their management report within the meaning of Article 19 of Directive 2013/34/EU in their annual financial statements.

2. Paragraph 1 shall not apply to undertakings qualifying under Article 3(3) of Directive 2013/34/EU.

Article 9 - Indicating possibly unlawful political advertisements

3. Where they provide political advertising services, advertising publishers shall put in place mechanisms to enable individuals to notify them, free of charge, that a particular advertisement which they have published does not comply with this Regulation.

4. Information on how to notify political advertisements as referred to in paragraph 1 shall be user friendly and easy to access, including from the transparency notice.   

5. Political advertising publishers shall allow for the submission of the information referred to in paragraph 1 by electronic means. The political advertising publisher shall inform individuals of the follow up given to the notification as referred to in paragraph 1.

6. Repetitive notifications under paragraph 1 regarding the same advertisement or advertising campaign may be responded to collectively, including by reference to an announcement on the website of the political advertising publisher concerned.

Article 10 - Transmission of information to competent authorities

1. Competent national authorities shall have the power to request that a provider of political advertising services transmits the information referred to in Articles 6, 7 and 8. The transmitted information must be complete, accurate and trustworthy, and provided in a clear, coherent, consolidated and intelligible format. Where technically possible, the information shall be transmitted in a machine readable format.

The request shall contain the following elements:

(a)a statement of reasons explaining the objective for which the information is requested and why the request is necessary and proportionate, unless the request pursues the objective of the prevention, investigation, detection and prosecution of criminal offences and to the extent that the reasons for the request would jeopardise that objective; 

(b)information on the redress available to the relevant service provider and to the sponsor of the political advertising service.

2. Upon receipt of a request pursuant to paragraph 1, providers of political advertising services shall, within two working days, acknowledge receipt of that request and inform the authority of the steps taken to comply with it. The relevant service provider shall provide the requested information within ten working days.

3. Providers of political advertising services shall designate a contact point for the interaction with competent national authorities. Providers of political advertising services which are SMEs within the meaning of Article 3 of Directive 2013/34/EU may appoint an external natural person as contact point.

Article 11 - Transmission of information to other interested entities

1. Providers of political advertising services shall take the appropriate measures to transmit the information referred to in Article 6 to interested entities upon request and without costs.

Where the provider of political advertising services is a political advertising publisher, it shall also take the appropriate measures to transmit the information referred to in Article 7 to interested entities upon request and without costs.

2. Interested entities requesting the transmission of information pursuant to paragraph 1 shall be independent from commercial interests and shall fall in one or more of the following categories: 

(a)vetted researchers in accordance with Article 31 of Regulation (EU) 2021/xxx [Digital Services Act];

(b)members of a civil society organisation whose statutory objectives are to protect and promote the public interest, authorised under national or Union law;

(c)political actors as authorised under national law; or

(d)national or international electoral observers accredited in a Member State.

Such interested entities shall also include journalists accredited in a Member State by national, European or international bodies.

3. Following a request from an interested entity, the service provider shall make best efforts to provide the requested information or its reasoned response under paragraph 5, within one month.

4. When preparing the information to be provided pursuant to paragraph 1, the service provider may aggregate the relevant amounts or place them in a range, to the extent necessary to protect its commercial legitimate interests.

5. Where requests pursuant to paragraph 1 are manifestly unfounded, unclear or excessive, in particular because of their lack of clarity, the service provider may refuse to respond. In this case, the relevant service provider shall send a reasoned response to the interested entity making the request.

6. Where requests under paragraph 1 are repetitive and their processing involves significant costs, the service provider may charge a reasonable and proportionate fee, which in any event shall not exceed the administrative costs of providing the information requested.

7. Service providers shall bear the burden of demonstrating that a request is manifestly unfounded, unclear or excessive, or that requests are repetitive and involve significant costs to process.


CHAPTER III – TARGETING AND AMPLIFICATION OF POLITICAL ADVERTISING

Article 12 - Specific requirements related to targeting and amplification

1. Targeting or amplification techniques that involve the processing of personal data referred to in Article 9(1) of Regulation (EU) 2016/679 and Article 10(1) of Regulation (EU) 2018/1725 in the context of political advertising are prohibited. 

2. The prohibition laid down in the first sentence shall not apply to the situations referred to in Article 9(2)(a) and (d) of Regulation (EU) 2016/679 and Article 10(2)(a) and (d) of Regulation (EU) 2018/1725.

3. When using targeting or amplification techniques in the context of political advertising involving the processing of personal data, controllers shall, in addition to the requirements laid down in Regulation (EU) 2016/679 and Regulation (EU) 2018/1725, as applicable, comply with the following requirements:

(a)adopt and implement an internal policy describing clearly and in plain language, in particular, the use of such techniques to target individuals or amplify the content, and retain such policy for a period of five years; 

(b)keep records on the use of targeting or amplification, the relevant mechanisms, techniques and parameters used, and the source(s) of personal data used.

(c)provide, together with the political advertisement, additional information necessary to allow the individual concerned to understand the logic involved and the main parameters of the technique used, and the use of third-party data and additional analytical techniques. This information shall comprise the elements set out in Annex II.

4. Political advertising publishers making use of targeting or amplification techniques shall include in the transparency notice required under Article 7 the information specified in paragraph 3(c) and a link to the policy referred to in paragraph 3(a). In case the controller is different from the advertising publisher, the controller shall transmit the internal policy or a reference to it to the political advertising publisher.

5. Political advertising publishers making use of targeting or amplification techniques referred to in paragraph 3 shall include in or together with the advertisement and in the transparency notice required under Article 7 a reference to effective means to support individuals exercise their rights under Regulation (EU) 2016/679.

6. Information to be provided in accordance with this provision shall be presented in a format which is easily accessible and, where technically feasible, machine readable , clearly visible and user-friendly, including through the use of plain language.

7. Providers of advertising services shall, as necessary, transmit to the controller the information necessary to comply with paragraph 3.

8. The Commission is empowered to adopt delegated acts in accordance with Article 19 to amend Annex II by modifying or removing elements of the list of information to be provided pursuant to paragraph 3(c) of this Article in light of technological developments in relevant scientific research, and developments in supervision by competent authorities and relevant guidance issued by competent bodies.

Article 13 - Transmission of information concerning targeting or amplification to other interested entities

1. The controller referred to in Article 12 shall take appropriate measures to transmit, upon request by interested entities in accordance with Article 11(1), the information referred to in Article 12.

2. Article 11(2) to (7) shall apply mutatis mutandis.


CHAPTER IV – SUPERVISION AND ENFORCEMENT

Article 14 - Legal representative

1. Service providers that provide political advertising services in the Union but do not have an establishment in the Union shall designate, in writing, a natural or legal person as their legal representative in one of the Member States where the provider offers its services.

2. The legal representative shall be responsible for ensuring compliance with the represented service provider’s obligations pursuant to this Regulation and shall be the addressee for all communications with the relevant service provider provided for in this Regulation. Any communication to that legal representative shall be deemed to be a communication to the represented service provider.

Article 15 - Competent authorities and contact points

1. The supervisory authorities referred to in Article 51 of Regulation (EU) 2016/679 or Article 52 of Regulation (EU) 2018/1725 shall be competent to monitor the application of Article 12 of this Regulation in their respective field of competence. Article 58 of Regulation (EU) 2016/679 and Article 58 of Regulation (EU) 2018/1725 shall apply mutatis mutandis. Chapter VII of Regulation (EU) 2016/679 shall apply for activities covered by Article 12 of this Regulation.

2. Member States shall designate competent authorities to monitor the compliance of providers of intermediary services within the meaning of Regulation (EU) 2021/xxx [DSA] with the obligations laid down in Articles 5 to 11 and 14 of this Regulation, where applicable. The competent authorities designated under Regulation (EU) 2021/xxx [Digital Services Act] may also be one of the competent authorities designated to monitor the compliance of online intermediaries with the obligations laid down in Articles 5 to 11 and 14 of this Regulation. The Digital Services Coordinator referred to in Article 38 of Regulation (EU) 2021/xxx in each Member State shall be responsible for ensuring coordination at national level in respect of providers of intermediary services as defined by Regulation (EU) 2021/xxx [Digital Services Act]. Article 45(1) to (4) and Article 46(1) of Regulation (EU) 2021/xxx [Digital Services Act] shall be applicable for matters related to the application of this Regulation as regards providers of intermediary services.

3. Each Member State shall designate one or more competent authorities to be responsible for the application and enforcement of the aspects of this Regulation not referred to in paragraphs 1 and 2. Each competent authority designated under this paragraph shall structurally enjoy full independence both from the sector and from any external intervention or political pressure. It shall in full independence effectively monitor and take the measures necessary and proportionate to ensure compliance with this Regulation.

4. Competent authorities referred to in paragraph 3, where exercising their supervisory tasks in relation to this Regulation, shall have the power to request to access data, documents or any necessary information from providers of political advertising services for the performance of their supervisory tasks.

5. Competent authorities referred to in paragraph 3, where exercising their enforcement powers in relation to this Regulation, shall have the power to:

(a)issue warnings addressed to the providers of political advertising services regarding their non-compliance with the obligations under this Regulation;

(b)publish a statement which identifies the legal and natural person(s) responsible for the infringement of an obligation laid down in this Regulations and the nature of that infringement;

(c)impose administrative fines and financial penalties.

6. Member States shall ensure cooperation among competent authorities in particular in the framework of national elections networks, to facilitate the swift and secured exchange of information on issues connected to the exercise of their supervisory and enforcements tasks pursuant to this Regulation, including by jointly identifying infringements, sharing findings and expertise, and liaising on the application and enforcement of relevant rules. 

7. Each Member State shall designate one competent authority as a contact point at Union level for the purposes of this Regulation. 

8. Where a provider of political advertising services is providing services in more than one Member State, or has its main establishment or a representative in a Member State but provides its main activities in another Member State, the competent authority of the Member State of the main establishment or other establishment or of the representative, and the competent authorities of those other Member States shall cooperate with and assist each other as necessary. Unless already regulated by Union law, that cooperation shall entail, at least, the following:

(a)the competent authorities applying supervisory or enforcement measures in a Member State shall, via the contact point referred to in paragraph 7, inform and consult the competent authorities in the other Member State(s) concerned on the supervisory and enforcement measures taken and their follow-up;

(b)a competent authority may request, via the contact point referred to in paragraph 7, in a substantiated, justified and proportionate manner, another competent authority, where it is better placed, to take the supervisory or enforcement measures referred to in paragraphs 4 and 5; and

(c)a competent authority shall, upon receipt of a justified request from another competent authority, provide the other competent authority with assistance so that the supervision or enforcement measures referred to in paragraphs 4 and 5 can be implemented in an effective, efficient and consistent manner. The relevant competent authority so requested shall, via the contact points referred to in paragraph 7 and within a timeframe proportionate to the urgency of the request provide a response communicating the information requested, or informing that it does not consider that the conditions for requesting assistance under this Regulation have been met. Any information exchanged in the context of assistance requested and provided under this Article shall be used only in respect of the matter for which it was requested.

9. Contact points shall meet periodically at Union level in the framework of the European Cooperation Network on Elections to facilitate the swift and secured exchange of information on issues connected to the exercise of their supervisory and enforcements tasks pursuant to this Regulation.

Article 16 - Sanctions

1. In relation to Articles 5 to 11, 13 and 14 Member States shall lay down rules on sanctions including administrative fines and financial penalties applicable to providers of political advertising services under their jurisdiction for infringements of the present Regulation, which shall in each individual case be effective, proportionate and dissuasive.

2. Member States shall notify the Commission of those rules within twelve months of the entry into force of this Regulation and shall notify it, without delay, of any subsequent amendments affecting them.

3. When deciding on the type of sanctions and its level, due regard shall be given in each individual case, among others, to the following:

(a)the nature, gravity and duration of the infringement;

(b)the intentional or negligent character of the infringement;

(c)any action taken to mitigate any damage;

(d)any relevant previous infringements and any other aggravating or mitigating factor applicable to the circumstances of the case; and

(e)the degree of cooperation with the competent authority.

4. Infringements of Article 7 shall be considered to be particularly serious where they concern political advertising published or disseminated during an electoral period and directed to citizens in the Member State in which the relevant election is being organised.

5. If a service provider intentionally or negligently infringes the provisions of this regulation, for the same or linked political advertising, the total amount of the administrative fine shall be sufficiently adjustable in order to take into account all the relevant factors; the fact that the Regulation has been violated in multiple respects shall be reflected in the amount of the total fine, in compliance with the principle of proportionality.

6. For infringements of the obligations laid down in Article 12, the supervisory authorities referred to in Article 51 of the Regulation (EU) 2016/679 may within their scope of competence impose administrative fines in line with Article 83 of Regulation (EU) 2016/679 and up to the amount referred to in Article 83(5) of that Regulation.

7. For infringements of the obligations laid down in Article 12, the supervisory authority referred to in Article 52 of Regulation (EU) 2018/1725 may impose within its scope of competence administrative fines in line with Article 66 of Regulation (EU) 2018/1725 up to the amount referred to in Article 66 (3) of that Regulation.

Article 17 - Publication of electoral periods

Member States shall publish the dates of their national electoral periods in an easily accessible place, with an appropriate reference to this Regulation.


CHAPTER V –FINAL PROVISIONS

Article 18 - Evaluation and review

Within two years after each election to the European Parliament and for the first time by 31 December 2026 at the latest, the Commission shall submit a report on the evaluation and review of this Regulation. This report shall assess the need for amendment to this Regulation. The report shall be made public.

Article 19 - Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 7(8) and Article 12(8) shall be conferred on the Commission for a period of [until the application of this regulation is evaluated, two years after the next European Parliamentary elections].

3. The delegation of power referred to in Article 7(8) and Article 12(8) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. As soon as it adopts a delegated act, the Commission shall notify that act simultaneously to the European Parliament and to the Council.

5. A delegated act adopted pursuant to Article 7(8) or Article 12(8) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Article 20 - Entry into force and application

1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2. It shall apply from 1 April 2023.

3. This Regulation shall be binding in its entirety and directly applicable in all Member States.