Learn to partner with creators and build customer trust with authenticity. Join leaders from TikTok, the NBA and more at Social Media Week, May 16–18. Register now.
Political advertising has become an integral part of modern democratic elections. Through such adverts, political candidates have been able to engage directly with their electorate, highlighting important issues and sharing their vision and goals.
Political advertising extends far beyond campaigning itself; a range of brands differentiate themselves from their competitors by their values and views on societal issues.
However, recent scandals such as Meta’s $725 million settlement for selling user data to British political consultancy Cambridge Analytica and the Brexit campaign controversies have cast a shadow over this practice and left deep societal scars. As a result, we recognize the need for the EU to regulate political advertising, particularly in terms of increasing transparency and ensuring users know who is behind an advert.
While the EU’s proposals are intended to ensure fair and transparent political discourse in Europe, it is critical to highlight the potential unintended consequences the proposals could have for commercial issues-based advertising. These risks are not insignificant and must be carefully considered by policymakers and stakeholders alike.
What is considered political advertising?
The current broad definition of political advertising is a particular cause for concern. Under some of the proposals put forward by the European Parliament and Council, any content that is liable to influence the outcome of an election could be considered political advertising and would therefore fall within the scope of the regulation.
One of the main risks is potentially limiting the ability of brands to engage in issues-based advertising campaigns, which can highlight important causes such as sustainability, diversity and inclusion. This is critical. Brands are increasingly keen to connect with consumers in a range of ways, often taking on broader societal issues in their messaging and advertising in an effort to demonstrate their shared values.
But this new legislation would make it challenging for brands to properly assess what can and cannot be contained in such issues-based advertising. What is deemed political could vary between member states and will likely depend on what thorny issues are at the top of the political agenda at that point in time.
Additionally, some of the proposed definitions of political advertising that have been put forward are not dependent on remuneration, meaning that both paid and non-paid ads would be captured in the regulation’s scope. Of course, intervention should be limited to paid-for political ads. If non-paid political messages fall within the scope of the regulation, it could mean that all kinds of speech from politicians, advocacy groups, civil society and others may be restricted as a result. Going forward, they could become wary about what they say on their own social channels for fear of their content being deemed a political ad.
By allowing issues-based ads to fall within the scope of the regulation, we would be in effect declaring a de facto ban on such ads in certain member states.
How this affects brands
Brands will find themselves in the unenviable position of having to track upcoming voting events at EU, national and local levels, as there are no requirements for member states or the EU to provide information on them.
Not only will brands have to carefully monitor upcoming elections, but they will need to understand and consider the criteria around political ads accordingly. Given that there is no guidance from the commission around how to interpret “liable or designed,” brands would be left to determine themselves if the ad falls into this category.
In the face of such legal risk and complexity, brands are likely to shy away from participating in issues-based advertising completely out of fear of falling foul of the regulations. We have consistently warned policymakers that imprecise and ill-defined regulations for political ads could have a chilling effect on commercial speech.
Already, we are seeing cases of individual activists lodging complaints about content to self-regulatory organizations because of the perceived political nature of the ad, even in the absence of harmonized legislation on political advertising.
In a 2019 Coca-Cola advertisement, Santa Claus was depicted as an immigrant being warmly welcomed by families and children. The Belgian Self-Regulatory Organization (JEP) received a complaint arguing that the ad carried a political message.
Additionally, the Greek self-regulatory organization (SEE) had to handle several complaints about featuring LGBTQ+ individuals or couples in ads. In Poland, similar complaints were made in 2020 about a Durex ad featuring a same-sex couple.
These examples should serve as a warning to policymakers who are advocating for the introduction of a user flag and notice framework in the proposals. If flags are not limited to “competent authorities” and properly substantiated, then we are handing an effective tool for abuse by political actors looking to block legitimate speech made by their opponents.
In a democracy, businesses need to have a voice
By instilling fear in organizations that they may be falling foul of EU regulations by speaking on even remotely political topics, the proposed political advertising regulation could have a chilling effect on public discourse, limiting the range of voices and perspectives that are heard on important societal issues.
In the end, this could lead to a less informed and less engaged citizenry, which is not in anyone’s best interest, least of all the EU itself.
Policymakers and stakeholders must work together to strike a balance that protects political discourse, while also preserving the right of businesses to engage on key societal issues. Only by doing so can we ensure that our democracy remains healthy and vibrant for generations to come.
