Human Rights Watch joined 26 other organizations on June 21, 2023, in urging EU lawmakers both to establish strong rules for political advertising by retaining a clear focus on paid advertising that does not interfere with the right to free expression, data protection or privacy.
The following is the joint statement:
Civil Society Open Letter on the ongoing negotiations regarding the Regulation of Political Advertising: EU Lawmakers must uphold human rights to privacy and free expression
We, the undersigned 27 civil society organisations, are writing to voice our deep concern regarding the worrying developments related to the Regulation on the Targeting and Transparency of Political Advertising. Specifically, we urge EU co-legislators to:
- Adopt the position of the European Parliament on Article 12 and accompanying recital 47 which aligns with and strengthens the provisions of General Data Protection Regulation (GDPR) and Digital Services Act (DSA) by also prohibiting the processing of observed or inferred personal data, in line with the European Data Protection Board Guidelines 8/2020 on the targeting of social media users.
- Ensure the scope of the Regulation remains narrowly focused on political advertising, i.e. excluding direct, unpaid communications between political parties or Civil Society Organisations (CSOs) on the one hand, and their members, former members and recent contacts on the other. So called organic speech by political candidates, parties, CSOs, and individuals should likewise remain out of scope.
As academic and civil society research and campaigns have made clear, targeting people with messages based on sensitive data on their tracked behaviour and perceived traits threatens privacy, free expression, and freedom from discrimination. It can also undermine the right to freely form an opinion which can have a serious negative impact on election integrity; such tactics should have no place in human rights respecting democracies. Now, however, a "non-paper" from the European Commission Services, leaked by Contexte and Politico, indicates a strong desire among some negotiators to soften these data protection rules, including allowing the use of especially sensitive categories of personal data such as ethnicity, religious belief or information on gender or sexual orientation in the targeting of political advertising.
This proposal goes against what the majority of people want[1]. As underlined by the European Data Protection Supervisor[2], the use of highly sensitive categories of personal data would likely lead to data protection violations under the General Data Protection Regulation (GDPR) and undermine the EU Charter. It would also go against Article 26(3) of the Digital Services Act - a legally binding horizontal framework, which prohibits the use of sensitive categories of personal data in targeting. However, the document seems to suggest that the use of sensitive categories of personal data in political advertising should be permitted in order to enable new or less-resourced political candidates to increase their reach in a more cost-effective way than they would otherwise be able to. This argument hinges on the flawed assumption that sensitive category data is the most relevant basis for determining the most relevant audience for outreach. This proposal only reaffirms the status quo: ongoing abuse of people's privacy in order to discriminate among them on the basis of sensitive data, at least in the context of paid political communication.
The aim of the Regulation should be to prevent the continued widespread and abusive use of personal data in political advertising, not provide a validation for increased misuse of sensitive personal data in order to "level the playing field" for actors who have not been able to do so historically. While there may be merit, in certain circumstances, for political actors and CSOs to direct their paid communications to groups of people who share demographic characteristics, that goal can largely be achieved through contextual targeting, which is permitted under the DSA[3].
Against this backdrop, we strongly urge negotiators to uphold provisions already prescribed in EU law and focus on strengthening transparency requirements and bolstering, not weakening personal data and privacy protections in political advertising.
