Regulation (EU) 2024/900 of the European Parliament and of the Council of 13 March 2024 on the transparency and targeting of political advertising (Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 16 and 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

(1) The supply of and demand for political advertising are growing and becoming increasingly cross-border in nature. A large, diversified and increasing number of services are associated with that activity, such as political consultancies, advertising agencies, ‘ad-tech’ platforms, public relations firms, influencers and various data analytics and brokerage operators. Political advertising can take many forms, including paid content, sponsored search results, paid targeted messages, promotion in rankings, promotion of something or someone integrated into content, such as product placement, influencers and other endorsements. Related activities can involve, for instance, the dissemination of political advertising upon request of a sponsor or the publication of content against payment or other forms of remuneration, including benefits in kind.

(2) Political advertising can be disseminated or published through various means and media across borders both online and offline. It is rapidly increasing and can be disseminated or published via traditional offline media, such as newspapers, television and radio, but also increasingly via online platforms, websites, mobile applications, computer games and other digital interfaces. The latter are not only particularly likely to be offered cross-border, but also raise novel and difficult regulatory and enforcement challenges. The use of online political advertising is strongly increasing, and certain linear offline forms of political advertising, such as radio and television, are also offered online as on-demand services. Political advertising campaigns tend to be organised to make use of a range of media and forms.

(3) Given that it is normally provided against remuneration, which may include benefits in kind, advertising, including political advertising, constitutes a service activity under Article 57 of the Treaty on the Functioning of the European Union (TFEU). In Declaration No 22, regarding persons with a disability, annexed to the Treaty of Amsterdam, the Conference of the Representatives of the Governments of the Member States agreed that, in drawing up measures under Article 114 TFEU, the institutions of the Union are to take account of the needs of persons with disabilities.

(4) The need to ensure transparency is a legitimate public goal, in conformity with the values shared by the Union and its Member States pursuant to Article 2 of the Treaty on European Union (TEU). It is not always easy for citizens to recognise political advertisements and exercise their democratic rights in an informed manner. An increase in the sophistication of disinformation, diversification of actors, the fast evolution of new technologies and intensified spread of information manipulation and interference in our democratic electoral and regulatory processes are important challenges for the Union and for the Member States. Political advertising can be a vector of disinformation, in particular where the advertising does not disclose its political nature, comes from sponsors outside of the Union or is subject to targeting techniques or ad-delivery techniques. A high level of transparency is necessary inter alia to support open and fair political debate and political campaigns, and free and fair elections or referendums, and to counter information manipulation and interference, as well as unlawful interference, including from third countries. Transparency of political advertising contributes to enabling voters and individuals in general to better understand when they are being presented with a political advertisement, on whose behalf that advertisement is being made, as well as how and why they are being targeted by a provider of advertising services, so that voters are better placed to make informed choices. Media literacy should be supported to help individuals make best use of the transparency of political advertising.

(5) This Regulation aims to ensure that the provision of political advertising is in full respect of fundamental rights.

(6) In the context of political advertising, frequent use is made of targeting techniques and ad-delivery techniques on the basis of the processing of personal data, including observed and inferred personal data, such as data revealing political opinions and other special categories of data. Targeting techniques should be understood as techniques that are used either to address a political advertisement only to a specific person or group of persons or to exclude them, usually with tailored content, on the basis of the processing of personal data. Ad-delivery techniques should be understood as a wide range of optimisation techniques that rely on the automated processing of personal data in order to increase the circulation, reach or visibility of a political advertisement. Such techniques can be used by political advertising publishers and, in particular, by very large online platforms within the meaning of Regulation (EU) 2022/2065 of the European Parliament and of the Council (4), to deliver political advertisements to a targeted audience based on personal data and on the content of advertisements. Delivering advertisements using such techniques involves the use of algorithms which are currently opaque to individuals and the effect of which can differ from what the sponsors, or providers of advertising services acting on behalf of sponsors, intended. Given the potential for the misuse of personal data through targeting, including through microtargeting and other advanced techniques, such techniques may present particular threats to legitimate public interests, such as fairness, equal opportunities and transparency in the electoral process and the fundamental rights to freedom of expression, to privacy and the protection of personal data and to equality and non-discrimination, and the right to be informed in an objective, transparent and pluralistic way.

(7) Political advertising is currently regulated heterogeneously in the Member States, which in many cases tends to focus on traditional media forms. Specific restrictions exist including on cross-border provision of political advertising services, which affect the conduct of cross-border and pan-European political campaigns. Some Member States prohibit Union service providers established in other Member States from providing services of a political nature or with a political purpose during electoral periods. At the same time, gaps and loopholes are likely to exist in the national law of some Member States, resulting in political advertising sometimes being disseminated without regard to relevant national rules and thus risking undermining the transparency regulation of political advertising.

(8) To provide enhanced transparency of political advertising, including to address citizens’ concerns, some Member States have already explored or are considering additional measures to address the transparency of political advertising and to support a fair political debate and free and fair elections or referendums. Those national measures are in particular considered for political advertising published and disseminated online and can include further restrictions. Those measures vary from soft to binding measures and entail different elements of transparency.

(9) That situation leads to the fragmentation of the internal market, decreases legal certainty for providers of political advertising services preparing, placing, promoting, publishing, delivering or disseminating political advertisements, creates barriers to the free movement of related services, distorts competition in the internal market, including between offline and online service providers, and requires complex compliance efforts and additional costs for relevant service providers.

(10) In that context, providers of political advertising services are likely to be discouraged from providing their political advertising services in cross-border situations. That is particularly true for micro, small and medium-sized undertakings, which often do not have the resources to absorb or pass on the high compliance costs connected to the preparation, placement, promotion, publication, delivery or dissemination of political advertising in more than one Member State. That limits the availability of services and negatively impacts the possibility for service providers to innovate and offer multi-medium and multi-national campaigns within the internal market.

(11) A consistent and high level of transparency of political advertising throughout the Union should therefore be ensured when political advertising services are provided, while divergences hampering the free circulation of related services within the internal market should be prevented, by laying down harmonised rules for the provision of political advertising services, including on transparency and related due diligence obligations, for sponsors and providers of political advertising services guaranteeing the uniform protection of rights of persons and supervision throughout the internal market based on Article 114 TFEU.

(12) Member States should not maintain or introduce, in their national laws, provisions on the transparency of political advertising that diverge from those laid down in this Regulation, in particular more or less stringent provisions to ensure a different level of transparency in political advertising. Full harmonisation of the transparency and related due diligence obligations linked to political advertisement increases legal certainty and reduces the fragmentation of the obligations that service providers meet in the context of political advertising.

(13) Full harmonisation of the transparency and related due diligence obligations should be without prejudice to the freedom of providers of political advertising services to provide on a voluntary basis further information on political advertising, as part of the freedom of expression and information protected under Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

(14) This Regulation is limited to harmonising the rules on the transparency and related due diligence obligations for the provision of political advertising services and on the use of targeting techniques and ad-delivery techniques, as well as rules on its supervision and enforcement. It should neither affect the content of political advertisements, nor Union or Member States’ rules regulating aspects related to political advertising other than those covered by this Regulation. Consequently, this Regulation does not alter the rules regulating the conduct and financing of political campaigning, including general bans or limitations on political advertising during specified periods, the so-called silence periods, donations by individual campaign donors or prohibitions regarding the use of commercial advertising for election campaign purposes. Furthermore, this Regulation should not affect, in particular, the fundamental rights to freedom of opinion and freedom of speech.

(15) The specific needs of micro, small and medium-sized undertakings should be taken into account in the application and enforcement of this Regulation, in line with the principle of proportionality. The notion of micro, small and medium-sized undertakings should be understood as undertakings qualifying under Article 3(1), (2) and (3) of Directive 2013/34/EU of the European Parliament and of the Council (5).

(16) This Regulation should provide for harmonised transparency and related due diligence obligations applicable to economic actors providing political advertising and related services, that is, activities that are normally provided for remuneration, which may include benefits in kind. Those services consist in particular of the preparation, placement, promotion, publication, delivery and dissemination of political advertisements. The rules of this Regulation that provide for a high level of transparency of political advertising services are based on Article 114 TFEU. This Regulation should also address the use of targeting techniques and ad-delivery techniques in the context of the promotion, publication, delivery or dissemination of political advertising that are based on the processing of personal data. The rules of this Regulation that address the use of targeting techniques and ad-delivery techniques are based on Article 16 TFEU. Political advertising directed to individuals in a Member State should include advertising entirely prepared, placed, promoted, published, delivered or disseminated by service providers established outside the Union but disseminated to individuals in the Union. To determine whether a political advertisement is directed to individuals in a Member State, factors linking it to that Member State, including language, context, the objective of the advertisement and its means of dissemination, should be taken into account.

(17) The specificities of the medium of publication or dissemination of the political advertisement should be taken into account in the application of this Regulation, in particular to adapt its modalities to television, radio and newspapers, as the case may be, in compliance with Union law.

(18) It should be recalled that the cross-border provision of advertising services in the internal market is subject to the principle of non-discrimination. That principle entails, inter alia, that access by a recipient to a service on offer to the public is not to be restricted solely on the grounds of the recipient’s nationality or place of residence or establishment. Therefore, providers of political advertising services should not be allowed to discriminate against sponsors residing or legally established in the Union on the grounds of their place of residence or establishment, except where the difference of treatment is justified and proportionate in accordance with Union law. Non-discriminatory access to cross-border political advertising services is essential for the recipients of those services to reap all the benefits of the internal market in that sector. Non-discriminatory access to cross-border political advertising services is particularly important for European political parties, given their role in contributing to forming European political awareness and in expressing the will of citizens of the Union as set out in Article 10(4) TEU and Article 12(2) of the Charter and their European legal status pursuant to Regulation (EU, Euratom) No 1141/2014 of the European Parliament and of the Council (6). Unjustified restrictions by providers of political advertising services on the freedom of European political parties to receive cross-border political advertising services should not be allowed as they obstruct the conduct of effective political campaigns across the Union, thus impeding them from fulfilling the role assigned to them by the Treaties. Consequently, providers of political advertising services should not deny, hinder or make less attractive their services to a European political party solely on the grounds of its place of establishment, including registration, without precluding the possibility of differences of treatment based on justified objective reasons. Similar considerations apply in respect of political groups in the European Parliament that are formed in accordance with the Rules of Procedure of the European Parliament and carry out their duties as part of the activities of the Union. The clause on non-discrimination laid down in this Regulation does not determine, nor affect in any way, the legal status of European political parties or of political groups in the European Parliament as it limits itself to addressing their position as sponsors.

(19) Interference in elections by certain third-country entities or third-country nationals, who may sponsor political advertising in the Union, is known to pose a serious threat to democracy, which is a common value of the Union and the securing of which is of fundamental importance to the Union and its Member States. Consequently, some Member States have already put in place, or are considering, various restrictions on third-country entities or third-country nationals from providing financing in the context of elections. That heterogeneous regulatory situation, which is likely to get worse due to the prevailing tense international climate, creates obstacles for providers of political advertising services to operate on the markets of different Member States. That heterogeneous regulatory situation should therefore be approximated to a common minimum standard. Providers of political advertising services should be required, in the three months preceding an election or referendum organised at Union level or at national, regional or local level in a Member State to only provide political advertising services to citizens of the Union, third-country nationals permanently residing in the Union and having a right to vote in that election or referendum or legal persons established in the Union which are not controlled by third-country entities. The risk of interference in elections or referendums in different Member States and Member States’ assessments of that risk vary, which is why stricter national rules providing notably for longer time periods for restricting sponsoring by third-country entities or third-country nationals may be appropriate in different Member States. The minimum standard of three months should thus not preclude Member States from providing for stricter national rules in compliance with Union law. Where an election or referendum is announced less than three months before the date of that election or referendum, this should not be understood to give rise to obligations in the period before the elections or referendums were announced.

(20) To counter information manipulation and interference in political advertising, ‘online platforms’ as defined in Regulation (EU) 2022/2065 are encouraged, including through the Code of Practice on Disinformation, to establish and implement tailored policies and other relevant measures, including by means of their participation in wider disinformation demonetisation initiatives to prevent the placement of political advertising containing disinformation.

(21) There is no existing definition of political advertising or political advertisement at Union level. A definition at Union level is necessary to establish the scope of application of the harmonised transparency and related due diligence obligations and of the rules on the use of targeting techniques and ad-delivery techniques. That definition should cover the many forms that political advertising can take and any means and modes of publication or dissemination within the Union, regardless of whether the source is located within the Union or in a third country.