Background
Digital policy had a prominent role in the EU agenda over the past 5 years, as it was one of the two pillars of the twin digital and green transition. A number of strategies, pieces of legislation, opinions and recommendations were issued during the 2019-2024 EU parliamentary term, including on online platform regulation, Artificial Intelligence, data and cybersecurity.
At the same time, the EU has adopted for the first time a strategy for the future of democracy in Europe, the European Democracy Action Plan (EDAP), which we have also analysed here. Among other actions, the EDAP also had a strong focus on digital policy, as many of the issues mentioned in the strategy were once again linked to online platforms, political advertising online and disinformation.
While a lot was achieved, problems were also posed on how to integrate the topic of democracy with the digital priorities into a coherent agenda, as digital policy touches upon so many issues that it is often challenging to put the democracy aspect at the forefront. At the same time, many delays also made it so that most of the new rules and mechanisms did not come into force before the upcoming EU elections.
In this paper, we will take stock of the EU digital & democracy agenda 2019-2024 with 5 lessons learned and how to take them further with 5 recommendations for the next mandate 2024-2029.
5 years of digital policy & democracy
In this section, we will provide an overview of the 5 most relevant files from the past 5 years at the crossroads between digital & democracy.
- European Democracy Action Plan
The European Democracy Action Plan (EDAP) is a democracy support strategy with strong digital elements composed of several legislative and non-legislative initiatives aiming at supporting citizens and democracies across the EU by promoting free and fair elections; strengthening media freedom; and countering disinformation.
The EDAP was the first policy document to focus exclusively on strengthening democracy within the EU and it has enabled positive advancements in civic participation, gender equality, election integrity and transparency, media freedom and pluralism, through the proposal of initiatives such as the Regulation on Transparency and Targeting of Political Advertising, the Anti-SLAPP Directive, the European Media Freedom Act and the Digital Services Act among others.
Many actions included in the plan were however significantly delayed, including some related to the digital space such as the Regulation on Political Advertising; or lacked transparency, like the EU toolbox for countering foreign interference and influence operations and the work of the Media Literacy Expert Group. For this reason, there is still much that needs to be progressed in the coming mandate, both in terms of finalising specific dossiers and in terms of implementation.
- Regulation on the Transparency and Targeting of Political Advertising
The Regulation on Transparency and Targeting of Political Advertising is a set of proposed new rules to enhance transparency requirements for political ads by obliging political advertising services to display certain information to the viewer of the ad. The Regulation also includes rules on data protection and the establishment of an ad repository.
While the Regulation is a step forward to ensure the protection of voters from phenomena such as microtargeting, there are still gaps that should be filled during the implementation, in particular as regards the design of ad repositories and an increased protection of personal data to restrict microtargeting techniques.
- Digital Services Act
The Digital Services Act (DSA) is an EU Regulation setting up rules for all sorts of online intermediaries, with the main objective of creating a safer digital space. Given the role that online platforms have in hosting civic discourse, in particular on social media, and given the impact such discourse can have on electoral processes – for example through the rapid spread of disinformation – rules that regulate these platforms would also have a significant impact on democratic processes.
Some of the most relevant provisions of the DSA that could positively foster a healthy civic discourse are, among others, rules on content moderation processes, obligations to set clear internal policies, data access rules, rules on transparency of online advertising and recommender algorithms as well as risk assessments and mitigation measures for Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs).
On the other hand, a lot is still ongoing and the effectiveness of the rules will only be proved throughout the implementation. Rules such as the data access for researchers’ obligations will only show their results after they are activated to investigate further the open questions regarding the dynamics of civic discourse online. In other cases, the implementation is largely left to online platforms, such as in the case of Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs) and their risk assessments, including on elections. In this case, the effectiveness of the rules will fully depend on how the obligations are monitored and enforced.
- Artificial Intelligence Act
The Artificial Intelligence Act (AI Act) is an EU Regulation that aims to set out a horizontal framework of rules to regulate AI systems according to their risk level. As a horizontal framework, the AI Act has the potential to impact a wide range of issues linked to fundamental rights, including the right to vote as in Article 39 of the EU Charter of Fundamental Rights. Besides, there are several sections of the final text that refer either explicitly or implicitly to AI systems with the potential to impact election integrity and related solutions to limit such impact.
While it is positive that the AI Act explicitly mentions the protection of democracy among its objectives in the recitals and mandates the undertaking of fundamental rights impact assessments, there are many elements around the AI applications ‘intended to be used to influence elections’ that are still unclear and would need to be clarified further.
- Digital principles
The European Digital Rights and Principles are a set of principles aimed at guiding EU digital policy in compliance with existing fundamental rights and fostering a safe, inclusive and rights-respecting digital environment in all EU Member States. These principles focus on data protection, privacy, cybersecurity, digital accessibility, freedom of expression and participation in the digital public space, digital education and freedom of choice among others. The Commission will monitor the implementation of these principles in the EU digital strategy.
While taking into account democratic participation as part of the digital agenda would be key to making the best of the opportunities offered by new technologies (such as, for example: civic tech, e-voting and e-governance platforms), without proper implementation and consideration of such principles in new legislation, they risk remaining just a tick-boxing exercise.
5 lessons and 5 recommendations
- Black boxes are everywhere
From social media algorithms to AI-powered chatbots, black boxes are everywhere and legislators do not always have the full picture of potential risks generated by these systems. For this reason, many of the files mentioned above delegate many decisions to separate risk assessments performed by tech companies themselves, with related mitigation measures to be put in place in both the DSA and the AI Act.
While tech companies may be best placed to understand the functioning of their own systems, it should also be noted that for topics such as democracy and elections, it is delicate to let private companies decide which risks to democracy they pose and which solutions they should put in place. Companies are profit-oriented by nature and they might end up choosing the cheaper option, not necessarily the fittest to support democracy.
Recommendation 1: Issue clear guidelines to clarify rules of existing files
Risk assessments and risk mitigation measures under the DSA or the AI Act should be balanced out with clear guidelines during the implementation, in particular when it comes to civic discourse and electoral processes; and they should be properly enforced. Similarly, the AI Act is still vague on which AI systems that pose risks to elections could be considered high-risk or prohibited. This should also be clarified in implementation and not left to the discretion of private companies.
- There’s no transparency on transparency
As highlighted above, many aspects of the new rules are left to implementing acts. There are many valid reasons behind this choice: details could not be agreed at a political level; high-level rules can make legislation more future-proved; technical details are not always suited to political discussions; and to postpone the decision to a moment in which, potentially, we would have more data available.
On the other hand, the procedure for implementing acts is often very opaque, with unclear deadlines, short timeframes for public consultation and therefore a low level of involvement of external experts – right at the time when technical expertise is the most needed. Ironically, this lack of transparency might impact the very same rules that were put forward to increase transparency, such as the ad repository under the TTPA.
Recommendation 2: Increase transparency on implementation phase
The procedure on guidelines and implementing acts should be as transparent as the legislative procedure, so that experts and civil society can be involved. This would mean releasing clear timelines of publication of implementing acts and consultations so that experts can be involved early on, and not just once the draft act has already been published. This is particularly relevant for crucial aspects for the effectiveness of certain files, such as the concrete use cases from the AI Act and the ad repository in the TTPA.
- Expertise is needed – but what do experts need?
The knowledge gaps in digital policy show the pressing need for the involvement of experts in the decision-making processes and the related need for promoting and funding research projects that would answer questions regarding the functioning and main risks for democracy posed by new technologies.
But in turn, what do the experts need? Clearly, they need funding for their research projects, but that is not the only crucial aspect: they need data. Researchers have repeatedly struggled to get access to it. While the DSA access to data provision aims to solve this problem, it is of utmost importance that it actually removes obstacles for researchers to access data.
Recommendation 3: Set up a regular dialogue with relevant experts to inform implementation
To be able to give additional insights on challenges and potential solutions in the area of digital democracy, experts should be given additional funding as well as proper access to the data needed. The implementing act on data access in the DSA should ensure full accessibility of data relevant to investigate main practices online and the risk they pose. A regular dialogue should also be put in place between institutions and relevant experts to identify and prioritise research questions that need to be answered for implementation purposes.
- Democracy takes time – and so does digital democracy
Most files linked to digital & democracy were significantly delayed, to the point that the objective of having new rules in place by the 2024 elections was not, in most cases, achieved. We fully understand that democratic discussions take time, especially when it comes to laying out a first comprehensive framework on digital policy.
Some new files will be put forward during the next mandate, such as a review of consumer policy in the digital sphere with a so-called ‘Digital Fairness Act’ which might also address issues linked to addictive design and use of dark patterns online as well as the review of the General Data Protection Regulation.
However, given the length of the legislative procedure and possible delays in the democratic processes, the next mandate should prioritise what matters the most and focus on the implementation of the existing framework rather than coming up with additional sets of rules.
Recommendation 4: Place the strongest focus on implementation rather than on new files
The European Commission should have a strong focus on implementation rather than developing new rules, allocating more resources into staffing and expert contributions to shape the structures that will make the new rules effective, with a strong focus on democracy. This should be also integrated with clear guidelines throughout the implementation process.
- One step forward, two steps back
For many files, there was a lot of expectation that they would take existing legislation a step further, particularly when their main objective was having a better-functioning democracy and supporting election integrity. This did not always materialise. The biggest example is the TTPA, which was expected to tackle the issue of political micro-targeting but in the end, did not significantly raise existing protections.
In this context, we would not be doing our job as a civil society organisation if we did not advocate for a more ambitious digital & democracy agenda. To stay alive, democracy needs to be nurtured offline as well as online. To paraphrase a popular DSA slogan: what we do for democracy offline, we should also do it online.
Recommendation 5: Raise the level of ambition of the EU digital & democracy agenda
While the focus of the new mandate should be the implementation of the existing rules, the new European Commission should be ready to look beyond hard law to identify new challenges and opportunities linked to digital innovations and democracy: from raising awareness of online dynamics by funding media & digital literacy projects; to looking more specifically at accessibility and inclusivity in the online civic discourse; to identifying positive aspects of digital technologies for democracy, with civic tech applications and platforms.
Conclusions
We would encourage adopting a coherent digital & democracy agenda by taking into account the recommendations outlined above. Democracy should be an integral part of the reflection on digital policy and decisions around it should not be left in the hands of a handful of big platforms or tech companies.
Photo by Rahul Chakraborty on Unsplash.
