The tech regulatory agenda has been busy the last few years and most definitely the past months. Here is a quick recap of the key recent EU initiatives or milestones about media.
On November 25th, the European Commission (EC) released its Proposal for a Regulation on the transparency and targeting of political advertising. It will establish harmonized transparency measures to bring uniformity to the diverse regulations adopted in the Member States, enhance trust in the political debate and the integrity of the political debate. The text will bring legal certainty to a booming sector hopefully before the next EU elections and will prevent from happening again events such as Cambridge Analytica. Rules for political targeting based on personal data and sensitive personal data will be established. The text will apply to both offline and online political advertising and targeting.
The Digital Services Act proposal, released in December 2020, already included some rules for targeted advertising but will act as a lex generalis, lex which only applies in the absence of a more specific regime. The new proposal on political advertising will therefore act as a lex specialis to the regime of online adverting regulation. The distinction between commercial and political ads is finally enshrined in the EU proposal. This will permit to adopt a framework taking into account the particular challenges that political advertising and targeting create for individuals fundamental freedoms such as freedoms of opinion and information, to make political decisions and exercise their voting rights.
In short, the proposal is organized around 2 axes. Firstly, providing more transparency on political advertising. Secondly, setting up a framework for political targeting.
The European Commission sets a broad scope for political advertising. The material scope is quite wide. So is the political advertising definition, which includes any message for or on behalf of a political actor which is liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour (Article.2 §2). The personal scope targets a wide range of stakeholders involved in political advertising: political parties, political advertising services, publishers, sponsors.
Transparency for political advertising
Any political advert would need to be clearly labelled as such and include information such as who paid for it, how much and other information. Periodic reporting on political advertising services would become mandatory. Notification mechanisms for illegal political advertisement should be put in place by advertising publishers. Cooperation is also foreseen between the providers of political advertising services and with competent authorities and interested parties such as vetted researchers, civil society organisations, electoral observers and so forth.
Political targeting and amplification
The proposal establishes a ban on political advertising based on sensitive personal data (article 12§1). Sensitive personal data are data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation (article 9§1 GDPR). This prohibition is however nuanced by some exceptions (article 12§2) including data subject’s explicit consent. Some already point that given the dominant position of giants technological companies, users risks to have little choice regarding their data if they want to use their services. The regular critics addressed to the GDPR and true deliberate and informed consent might be also applicable to this new regulation.
Political targeting or amplification techniques based on personal data and sensitive personal data (exempted from the ban) shall respect transparency requirements. Information shall be communicated in a transparency notices, individuals must receive detailed information on the data being used, the targeting methods and the options to exercise their data protection rights.
The European Parliament and the Council of the European Union will now discuss the proposal and adopt their respective positions before entering into negotiation.
II. Update on the Digital Services Act proposal
Released in December 2020, the proposal has now made its way through the EU co-legislators the European Parliament and the Council of the European Union. As a reminder, the DSA will uniformly harmonize rules on intermediaries’ obligations applicable across the Digital Single Market and revise the e-commerce Directive. It defines clear responsibilities and accountability
The first to adopt its position was the Council in late November 2021. The Council while expanding the scope of the proposal and clarifying certain aspects, did not drastically change the provisions related to AI media applications set in the proposal.
The European Parliament finally adopted January 20, its position on the DSA proposal. The discussions were intense in the institution. IMCO Committee was leading the report but other committees were also providing their opinions. The text was approved on 20 January with 530 votes to 78, with 80 abstentions. Last-minute amendments in the plenary vote introduced important changes to the proposal. Below is a selection. More info: EP press release, Euractiv article.
Targeted advertising limitations and specific rules for minors. Targeting or amplification techniques involving the data of minors for the purpose of displaying ads will be prohibited, as well as targeting individuals on the basis of sensitive data which allow for targeting vulnerable groups.
Increased transparency on user data. Users of digital services will receive more information on how and why their data are being used and monetized. Online intermediaries will have to make sure that refusing consent shall be no more difficult or time-consuming to the recipient than giving consent. In addition, in case of consent refusal from users, alternatives to access the platform service should be offered including “options based on tracking-free advertising”.
Notices. Stronger safeguards for notice processing to ensure impartiality and non-discrimination and respect for fundamental rights, including the freedom of expression.
Exceptions for micro and SME’s. Micro and small enterprises are exempted from certain DSA obligations.
Anonymity online. Amendment requires that platforms enable users to use and pay for services anonymously “wherever reasonable efforts can make this possible.”
Dark patterns. Online platforms should be prohibited from using deceiving or nudging techniques to influence users’ behaviour through dark patterns.
What next? The respective positions of the two institutions will be discussed in trilogues reuniting the EC, the EP and the Council in order to find a common voice among the different positions. There are currently five political trilogues scheduled starting already on 31st January. You can follow the process here and here and here.
III. Update about disinformation
The EC announced that the new version of the Code of practice on disinformation aligned with the EC Guidance requirements will finally be out soon. As a reminder, at the EU level, disinformation is currently still left to self-regulation through the Code. In September 2020, after a year of existence, the Code received an unsatisfactory assessment by the EC. Strong of its findings, the EC announced in its EU Democracy Action Plan (December 2020) the need to revised the Code to solve its shortcomings and announced the future publication of guidance to strengthen the Code of Practice on disinformation. The Guidance (May 2021) aims at reducing the financial incentives for disinformation actors, empowering users and encouraging flagging harmful content. The signatories of the Code of practice on disinformation were working on the Code since then but the revision took longer than initially expected (end of 2021). This might be due to the new joiners to the Code as 26 new signatories, the new participants include civil society groups, software companies, and marketing agencies. The signatories are now expected to deliver the strengthened Code of Practice by the end of March 2022.
Meanwhile, the EP and the Council are calling for effective EU action on interference from foreign actors. The Council adopted on Monday 24th conclusions on the European security situation. The ministers reiterated their request to intensify the work on cyber-hybrid attacks, foreign information manipulation and interference. The EP also adopted on Tuesday 25th January recommendations on how to address urgently the threats caused by foreign interference, solve the EU legislation loopholes and the lack of coordination between EU Member States. A call for public awareness, training, sanctions, cybersecurity and stronger measures against giant economic platforms vector of disinformation was vividly expressed by MEP’s.
IV. Annual report the Charter of Fundamental Rights application in the EU shows digital challenges
On December 10 2021, the EC released its annual report on the application of the Charter of Fundamental Rights in the EU. Five key policy areas are part of the report. The report showed how these were interrelated and how the digital space is challenging for the implementation of the charter. Indeed, challenges related to online content moderation, digital surveillance, digital divide and use of artificial intelligence are highlighted. Digital media are therefore also heavily pointed as a space where fundamental rights implementation is lacking especially when it comes to content moderation and the spread of illegal content. The report provides a great overview of the main EU legislative and policy initiatives applicable to content moderation which aim to ensure a safe digital space for everyone while respecting fundamental freedom such as freedom of expression. It includes legal texts, fact-checkers support, media literacy initiatives, to EU democracy and digital education action plans.
The European Commission has made it a priority to shape the digital transition in a way that benefits everyone and leaves no one behind. Following these findings, legislative, policy, enforcement measures will be undertaken to support further the application of the Charter. Support also through funding schemes for civil society, local organisations and research. The Commission has just opened calls for EU funding on Citizens engagement and participation for 17 million.
V. Draft Delcaration on digital rights and principles
On 26 January 2022, as a follow-up to the Annual Charter report, the EC presented a draft European declaration on digital rights and principles. This work is the follow-up of previous initiatives including non-exclusively an EU Eurobarometer survey, a consultation on digital rights and principles, the Berlin Declaration on Digital Society and Value-based Digital Government signed a year ago (December 2020) in which the EU Member States committed for fundamental rights respect in digital public service. The Berlin Declaration was setting 7 key principles for policy action at the national and the European level in the digital sphere.
Contrary to some rumours, the draft declaration didn’t establish new rights but confirmed that all fundamental rights already fully apply online. The aim is more to gather all existing rights relevant to the digital age in a single place, establishing a clear reference point for everyone: EU, MS or companies. The declaration states that all (public, private, civil society,…) share a common responsibility to work for a human-centred digital transformation.
The Declaration notably builds on primary EU law, in particular, the Treaty on the European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), the EU Charter of Fundamental Rights and the case-law of the Court of Justice of the European Union, as well as on secondary EU law. The declaration will have a political nature, it will therefore need to be read in conjunction with the EU law. Some principles and rights are already enshrined in legislation, others might require some further action. The Declaration is organized around several chapters: 1. Putting people at the centre of the digital transformation, 2. Solidarity and inclusion, 3. Freedom of choice, 4. Participation in the digital public space, 5. Safety, security and empowerment, 6. Sustainability.
The European Parliament and the Council of the European Union need now to discuss and co-sign the declaration by the summer. Once endorsed, the declaration will also become the EU approach promoted worldwide. It will constitute a third way to envisage the digital environment compared to the developments ruled by State (China) by private companies (US). Third way based on fundamental values and humanist vision.
VI. Media Freedom Act
In April 2021, Thierry Breton, the EU Commissioner for the Internal Market made a speech announcing a forthcoming European Media Freedom Act. This proposal comes in a context of growing concerns in Europe about media freedom and independence especially in Central and Eastern Europe. The 2021 World Press Freedom Index demonstrated that the safety of journalists and press freedom is more at stake than ever and is getting more heterogeneous. The following EU countries are closing the ranking with bad scores: Poland 64, Greece 70, Malta 81, Hungary 92 and Bulgaria 112. But countries better ranked, such as the Netherlands (6), can also suffer from shocking attacks to press representatives, as demonstrated over the summer by the murder of a famous Dutch investigative journalist and crime reporter.
The act aims to solve the EU law gaps currently preventing the EU to act to solve some media challenges. The goal would be to build an EU legal arsenal acknowledging media not only as an economic player but as a key pillar of our democracy. Thierry Breton indicated that a mechanism increasing media transparency, independence, accountability is currently missing. The initiative will eliminate the barriers to the establishment and operation of media services in the EU single market for media.
On January 2022, the EC launched its public consultation on the Media Freedom Act seeking to hear from citizens, journalists, media (both private and public service media), academics, civil open until 21st March society, public authorities, businesses, and all interested parties. The consultation intends to collect views on the most prominent issues affecting the functioning of the internal media market through 3 areas: 1. transparency and independence, 2. condition for media healthy functioning and 3. Fair allocation of state resources.
The legislative initiative should be released in the third quarter of 2022 and will build upon the AVMS Directive, the EU Democracy Action Plan and related initiatives, the DSA proposal and the Media and Audiovisual Action Plan.
As observed, media regulation, digital spaces and AI are at the center of attention. Risks related to these topics have been heard by policy makers who decided to tackle them. The agenda will most definitely continue to evolve rapidly and hopefully address adequately modern media challenges.