In ancient Greece, considered the first form of democracy, only free male citizens could engage in debates and vote in the Ecclesia. More than two millennia later, after the American and French revolutions, parliamentary democracy 2.0 emerged. This new system not only expanded the universe of voters progressively, including women, but was also representative. Despite this broadening of suffrage changed the way voters accessed information about political proposals and candidates remained the same. They got information through socialization in small communities, newspapers, radio, and later television. However, digital democracy 3.0 is different and poses challenges for which we are not yet prepared. Today, most information is consumed, and produced, via mobile phones, which allow large platforms to collect vast amounts of data on citizens and draw their individualized profiles as consumers and voters. Artificial intelligence has enhanced the targeting of political advertising to an unprecedented degree, making it difficult to distinguish fake news from factual news on social media. Manipulation of voters’ preferences, by internal political actors and external third parties was clear in Donald Trump’s campaign in 2016, or in the Brexit campaign in the UK in the same year. The Cambridge Analytica scandal, which used personal data of millions of Facebook users without their permission to carry out political propaganda, signalled the start of a new era, sounding the alarms of Member States and the European Union (EU). The EU institutions rightly realized that the action plan against disinformation, namely the Code of practice on disinformation (2018) was not enough to tackle the problem and moved to regulate political advertising. Whatever the theory of democracy we may endorse – from a minimalist Schumpeterian approach, based on political competition, to a broader Habermasian approach focused on political deliberation in the public sphere – there is no doubt that today we face new threats to liberal democracies.
As we approach the European elections of 2024, the institutions of the European Union – Commission, Council, and European Parliament – are in trilogue to reach a compromise on the Commission’s proposal (COM 2021/731) for a Regulation on political advertising. The European Council and the European Parliament proposed many amendments. The initial proposal aims to increase transparency, avoid opacity of political advertisements, and harmonize Member State’s regulation concerning targeting and amplification of political advertising that use citizens’ personal data. This proposal is crucial in the context of Democracy 3.0, but it still contains issues that deserve further discussion.
If we adopt the perspective of civil society the critical point is whether the proposals achieve a right balance between a needed regulation to guarantee fair political competition and, on the other hand, the importance to preserve freedom of expression, freedom of speech, association and the right for individuals or independent civil society organizations to participate in the public sphere. In our understanding, the Regulation proposal goes in the right direction, namely on the restriction to use personal data for political targeting. However, it does not reach the right balance because the concept of political advertising is too broad.
According to the Commission “ ‘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….; or b) which is liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour.” (italics ours) The amendments proposed by the Council and the Parliament only restrict slightly this formulation suggesting that the message which is “liable and designed to influence…”. The problem with this formulation is the conjunction “or”. If it was cumulative (a and b) it would be understandable but as it is formulated (a or b) , it is a severe burden on all those public interest organizations, or individuals, who participate in the public space. Examples are easy to grasp. Think about a consumer association promoting policy measures (eventually leading to legislative proposals) to diminish obesity and diabetes in children, namely increasing taxation on sugar intense beverages or an environment association supporting measures to diminish the dependence on fossil fuels. Consider a group of citizens that start a crowdfunding initiative to submit a law proposal to change the electoral law of their country[1]or an independent opinion maker that has a regular paid column in a newspaper. All would be under the scope of this regulation. Note that, neither these public interest organizations nor this group of individuals, who get together for a legislative proposal, or the non-party affiliated opinion maker are political actors as they do not fit into the concept of political actor defined in the Resolution proposal. However, since the conditions in number 2 of article 2 are alternative, either being a political actor (or someone on behalf of him/her) or influencing the outcome of a legislative process, this opens a pandora box where almost everything fits as political advertising. It is sufficient to remember that legislative processes cover a huge amount of issues in society so that participation in almost any public interest group will influence legislative processes.
In this context, It is not a surprise that several civil society organizations addressed an open letter to the then President of the European Council, highlighting three points that need to be considered. Firstly, they consider, and we agree, that it is essential to define what is meant by political advertisements reasonably. The current definition that encompasses anything that may influence the result of an election, referendum, or legislative process is too broad and could restrict the participation of individuals or civil society organizations in the public sphere. Secondly, necessary sanctions should be limited to the violation of political advertisement services, which are different from simple political propaganda because they are paid. Finally, the deadline of 2026 for implementing the key measures of the Regulation seems excessive.
The EU’s essential challenge is to balance the fight against the manipulation of citizens’ political preferences with ensuring that political actors and civil society exercise freedom of expression and plurality in the public arena. Every citizen in each Member State of the EU must participate in this debate, as each Member State will have to apply this European legislation once approved.
[1] Several countries, including Portugal, have the possibility of citizens’ legislative initiatives.