New EU rules on transparency and targeting of political advertising enter into force

On 20 March 2024, the EU Regulation of 13 March 2024 on the transparency and targeting of political advertising was published in the Official Journal of the European Union. It entered into force 20 days later, on 9 April 2024.

The regulation seeks to establish a common regulatory framework enhancing the transparency of sponsored political advertising (both online and offline), reinforcing the integrity of election campaigns and fighting disinformation and foreign interference.

Context

Political advertising was regulated heterogeneously in EU Member States, which led to the fragmentation of the internal market and decreased legal certainty for providers of political advertising services.

What does the regulation cover?

This regulation applies to political advertising, which covers in particular “the preparation, placement, promotion, publication, delivery or dissemination of a message, normally provided for remuneration or through in-house activities or as part of a political advertising campaign by, for or on behalf of a political actor or which is liable and designed to influence the outcome of an election”, where the political advertisement is disseminated in the Union, brought into the public domain in one or several Member States or directed to Union citizens, irrespective of the place of establishment of the provider of political advertising services/sponsor or the means used.

Content subject to editorial responsibility (unless specific payment or other remuneration is provided) and political opinions that are expressed in a personal capacity are not covered by the regulation.

Who does it cover?

The regulation applies both to sponsors and providers of political advertising services (with the exception of purely ancillary services, being those that merely complement and depend on political advertising services, such as transportation, financing and investment).

Political advertising services is an extensive category. It includes a broad range of providers of services connected to political advertising such as political consultancies, advertising agencies, “ad-tech” platforms, public relations firms, influencers, various data analytics and brokerage operators, as well as website and app publishers.

What are the main requirements?

Non-discrimination: providers of political advertising services must not make the provision of their services subject to discriminatory restrictions solely based on the place of residence or establishment of the sponsor.

Prevention of foreign interference: in the last three months preceding an election or referendum, political advertising services must only be provided to a sponsor who declares itself to be (i) an EU citizen, (ii) a third-country national permanently residing in the EU and having a right to vote in that election or referendum, or (iii) a legal person established in the EU which is not ultimately owned or controlled by a third-country national or by a legal person established in a third country.

Due diligence requirements: providers of political advertising services must ensure that the contracts concluded for the provision of a political advertising service enable compliance with the relevant provisions of the regulation.

Transparency: providers of advertising services must ask sponsors whether the advertising service that they have requested constitutes a political advertising service and whether they fulfil any of the requirements for the prevention of foreign interference.

Record-keeping: providers of advertising services must retain for a period of seven years specific information they collect in the provision of their services, including on the political advertisement or political advertising campaign to which the service or services are connected.

Transmission of information to competent authorities and other interested parties: competent national authorities can request provision of some information from providers of political advertising services within specific timeframes, as well as some interested entities (such as vetted researchers, political actors or journalists).

Targeting and ad delivery techniques: targeting or ad delivery techniques that involve the processing of personal data in the context of online political advertising are permitted only when:

• the controller collected the personal data from the data subject;
• the data subject has provided explicit consent for the purpose of political advertising; and
• those techniques do not involve profiling using special categories of personal data (for example, data revealing political opinions).

Additional obligations for publishers

Political advertising publishers are subject to the following additional obligations:

Labelling and transparency requirements: publishers shall ensure that each political advertisement is made available with a transparency label and an easily retrievable transparency notice. These must clearly identify political advertisements as such and provide some key information about them, including their sponsor, the election or referendum to which they are linked, the amounts paid, and any use of targeting techniques.

European repository for online advertisements: publishers must ensure that each political advertisement is made available in the European repository:

• from the moment of publication for Very Large Online Platforms (VLOPs) or Very Large Online Search Engines (VLOSEs);
• no later than 72 hours after the first publication of the political advertising for publishers other than VLOPs and VLOSEs.

Periodic reporting on political advertising services: publishers must include information on the amounts or the value of other benefits received in part or full exchange for the services provided, attached to their management report, and make the information available to the competent authorities.

Indicating possibly unlawful political advertisements: publishers shall have in place free of charge and user-friendly mechanisms to enable persons to notify them non-compliant advertisements.

What are the penalties?

Member States must lay down rules on sanctions or other measures, applicable to sponsors or providers of political advertising services for infringements of the above mentioned rules.

The maximum amount of the financial penalties that may be imposed must be:

• 6% of the annual income or budget of the sponsor or of the provider of political advertising services as applicable and whichever is the highest; or
• 6% of the annual worldwide turnover of the sponsor or the provider of political advertising services in the preceding financial year.

When does it apply?

The regulation is directly applicable in all Member States from 10 October 2025.

However, the definitions and the article on non-discrimination and on the prevention of foreign interference have applied since the date of its entry into force, 9 April 2024.

Osborne Clarke comment

This regulation is part of broader EU efforts to regulate the digital world and offer a better online environment. For example, on 26 March 2024, the European Commission issued guidelines under the Digital Services Act on recommended measures to Very Large Online Platforms and Search Engines to mitigate systemic risks online that may impact the integrity of elections, with specific guidance for the upcoming European Parliament elections in June.

If you would like to discuss any of the issues raised in this Insight, please get in touch with your usual Osborne Clarke contact, or one of our experts listed below.