For Propaganda Without Disinformation: Draft EU Regulation on Political Advertising

Right now, the EU stands ready to adopt a set of strict rules in yet another area of free expression: political advertising in the online and traditional media. This blog examines the draft proposal made by the Commission, and subsequently adopted by the Council and the Parliament, and how it focuses on stopping disinformation in political advertising, especially when sponsored by alien forces (most likely, Russia). We note that the suggested measures fail to deal with the core problem of disinformation in political speech – propaganda when designed to undermine democracy and unity in the region. Instead, the proposal makes a paper tiger of disinformation itself, failing to understand some of the basic tenants of free speech in Europe.

The proposal for a Regulation on the transparency and targeting of political advertising (RPA or Proposal) was published in 2021. Most recently, in December 2022, the Council of the European Union adopted the proposal by the European Commission and agreed upon its general approach for negotiations with the European Parliament, while the latter, on 2 February 2023, adopted almost 300 amendments to the original text by the Commission. When it comes into force, the RPA will be the first piece of EU legislation to directly address political advertising, which so far is left to the member states. There is certain urgency behind this legislative process. The Commission aims to have the regulation in place before the 2024 European Parliament elections.

In addition to transparency rules, providers of political advertising services “should be encouraged to establish, implement and publish tailored policies and measures to prevent the placement of political advertising together with disinformation, including by participation in wider disinformation demonetisation initiatives such as the EU Code of Practice on Disinformation” (Recital 4a). Thus, it directly says that the placement of political advertising that contains disinformation should be prevented and countered.

Countering disinformation

Although the Council of the EU states that the draft RPA is not to regulate the content of political advertisements, it also makes it clear enough that a key target of the proposal is the content of advertisements if it is disinformation.

Apparently, the whole enterprise of drafting the proposal roots itself in the controversial targeted advertising practices used in the 2017 US election of Donald Trump and the UK’s 2016 Brexit referendum the year prior. However, since then media platforms have taken action against the foul use of their commercial services in the promotion of electoral interests, including, in some cases, total self-restraint on political advertising.

The text of the RPA is explicitly designed to be another step in the consistent response of the Union to political disinformation “from abroad,” that – through its messages – undermines the ability of citizens to “exercise their democratic rights in an informed manner”. Regulation of political advertising is now part of its broader approach to disinformation.

Indeed, over the past few years, the European Union has provided disinformation with the most comprehensive political response in modern history. Most recently, this policy led to the adoption of the European Commission’s European Democracy Action Plan (2020) and – last but not least – the voted in 2022 Digital Services Act (DSA), which will amend the Code of Practice on Disinformation.

EU defines disinformation as “false or misleading content that is spread with an intention to deceive or secure economic or political gain and which may cause public harm”. Public harm includes threats to democratic processes as well as to public goods such as Union citizens’ health, environment or security. Thus, for political advertising “political gain” and “public harm” should be the key applicable elements of the notion.

On a number of occasions, we are reminded by the very text of the proposal (Recitals 4 and 14c) of its necessity to tackle “sophisticated and intense interference by malign foreign actors in our democratic electoral processes through the spread of disinformation” and to combat and prevent disinformation and unlawful interference, including from the third countries, with all “appropriate measures” The reason is that wherever it comes “from sponsors outside of the Union” political advertising “can be a vector of disinformation”. Thus, the focus of the action is clearly on the foreign actors, even though the RPA still assures us that it respects the principle of non-discrimination (Recital 14b).

Additionally, Recital 14c (but also Recital 47) considers that interferences, by means of advertisements sponsored by actors coming from outside the EU, “constitute a serious violation of values and principles on which the Union is funded [founded? – AR]” and together with disinformation threaten these freedoms and undermining democratic processes.

Propaganda and political advertising

Disinformation is a means to an end, not an end in itself. Spreading lies for the sake of the exercise is an exotic thing. Disinformation’s raison d’être is to serve as an instrument, if not the instrument of propaganda. Manfred Nowak, a principal interpreter of international human rights law, points out that propaganda constitutes “intentional, well-aimed influencing of individuals by employing various channels of communication to disseminate, above all, incorrect or exaggerated allegations of fact” (“U.N. Covenant on Civil and Political Rights – CCPR Commentary” (2nd rev. ed.). Kehl am Rhein: Engel, 2005.) Thus, propaganda is typically based on lies.

Political propaganda is a notion very close to political advertising. Scholars agree that “political advertising” is a foundation of political marketing, while political marketing is a nice way to describe propaganda (a term, otherwise having a negative connotation) today. Indeed, both propaganda and advertising aim to change a person’s perspective or preference, and both are selective and biased in the information they choose to present. Both attempt to promote certain ideas and, if necessary, change in their favour the opinions of individuals. Propaganda is often labeled as misleading the public, but is political advertising always straightforward? Are electoral campaign promises subject to accuracy tests or liability for false hopes provided to the public? Both political advertising and propaganda readily employ emotional manipulation, “inaccuracies”, generalization and exaggerations. Thus, political advertising can serve as an example of the operation of propaganda today.

Still, despite its attention to alien disinformation, RPA does not even mention propaganda, although clearly enough, it is propaganda that – through influencing the public – undermines democracy in Europe. The angle of the RPA remains on the instrument of some foreign activity rather than on the activity itself. Are conspiracy illiberal theories, national populist rhetoric or juicy gossips less harmful examples of political propaganda?

In other words, political advertising, disinformation and propaganda per se are an exercise of the right to freedom of expression. Moreover, it is political speech – as a foundation of democracy – that enjoys the highest degree of protection by European and other international law. Protection of political speech includes protection of its content, form of expression and dissemination means.

In practice, that means that any limitations of political speech are required to pass a very strict test through the balance with human rights safeguards or legitimate interests according to the criteria of necessity, legitimacy and proportionality. But with a few exceptions, the balance does not depend on whether the information is false (disinformation) or truthful. Therefore, the provision of the RPA that refers to the fundamental human right (sic!) “to be informed in an objective… way” (Recital 5) is in itself untrue, as it is not to be found among the fundamental rights in Europe or the world.

To put it in context, when the European Court of Justice reviewed the EU “economic measures”, or sanctions, against Russian disinformation media in July 2022, it spoke of the threats of propaganda for war in times of military aggression, not of disinformation as such – which has been available in their programming for years.

Conclusions and recommendations

On the background of the military conflict in Europe, it is indeed vital to have legal certainty and harmonization of rules on political advertising across the continent. As the RPA clearly aims at disinformation there should be practical safeguards to preserve free speech, including annoying disinformation, inasmuch as it does not make harm to protected human rights or public interests.

If adopted, the overbroad restrictions on political advertising will result in this activity migrating into the grey zones of influencers expressing their opinions so as to bend the world vision of others. Self-censorship of the social networks that ban political advertising on the platforms will not extinguish the fire of political bias or calm down the heat of debates with dubious arguments. Harsher obligations imposed on the content service providers will force them to declare themselves “free from political advertising zones”, but will that really help counter disinformation? Targeting users with politically biased speech, whether called political advertising, political marketing or propaganda will happen anyway.

Proposed political advertising regulation envisions every online user actively seeking political advertising and agreeing to receive it in each case doing it in a very transparent way. This will alienate a significant part of the electorate from political speech and eventually – from the political democratic process.

Since starting to regulate the sphere of human rights, and in particular freedom of expression, the EU often “rediscovers America” by following the steps of the Council of Europe (CoE). Political advertising is yet another example, of when CoE standards can be transposed into European law.

Making advertising transparent and recognizable is definitely a good thing to do. It is important to know when content is provided by political sources, what are the sources of content, and have clearly indicated signs of advertising. It is especially true in the case of influencers and native advertising taking a major slice of the pie. And that is also true of commercial communications, such as sponsoring and product placement. The Council of Europe leaves many issues here to both regulatory and self-regulatory frameworks. Perhaps there is no need to invent specific regulation mechanisms for political advertising or apply freshly baked instruments of the DSA and Code of Practice to a wider scheme. Experts argue for using the disclosures and regulation regime, which are already common to commercial speech, via consumer protection rules, well recognized in the EU’s Charter of Fundamental Rights (Article 38).

Inventing a regime that makes regulation of political advertising even more strict than commercial speech does not seem to fit the promises of the politicians – including those numerously made in the RPA – not to affect the really fundamental right to freedom of speech and freedom of the media (Recitals 13, 19, and 31).