✅ The regulation builds upon the GDPR and strengthens its enforcement and compliance. This will be achieved by introducing requirements for targeting, essentially mandating greater transparency in the processing of personal data, and reiterating the ban of the use of special categories of personal data as defined in the GDPR (Art 9). Following the GDPR logic, this ban does not apply when the user data “has given explicit consent to the processing of those personal data for one or more specified purposes”.
❌ Enhanced transparency requirements work well for targeting techniques, but not so much for ‘amplification techniques’ (Article 2.8).
– Targeting (addressing a political advertisement only to a specific group of persons) can be made transparent in a meaningful way. The criteria used by publishers at the sponsor’s direct request to target viewers are specific, limited, traceable, and deliberately chosen, so, upon disclosure, individuals can understand these criteria.
– On the contrary, the functioning of amplification techniques, this is, the algorithms used by platforms to optimise the circulation, reach and/or visibility of ads, are inherently immune to meaningful transparency. Platforms’ ad delivery algorithms, which are more powerful and potential pernicious than targeting techniques to determine who sees which specific ad, involve profiling users processing thousands of apparently irrelevant parameters to deliver ads to them in an optimised, profit-driven manner. It cannot be
expected that viewers of an ad will meaningfully understand why and how the platforms’ algorithms delivered ads to them even if the algorithmic process would be made transparent.
❌ Sufficiently informed and explicit consent to the processing of data – and inferred data in particular – is often missing due to the generalised use of dark patterns. Furthermore, there is evidence of the processing of inferred data aimed at exploiting the vulnerabilities of citizens.
➡️ To address this, we propose a ban on the use of inferred data for all political advertising, as called for by the European Data Protection Board. There is legal basis for prohibiting the use of data for this purpose. Given the particularly pernicious uses of inferred data by platforms to deliver political content – sponsored or not – to users as most recently revealed by Facebook whistle-blower France Haugen, a ban on the use of inferred data in political advertising must be adopted.
❓The requirements of “explicit consent” for the processing of special category data for political advertising purposes could be open to interpretation by different political and economic actors. Further clarification on this issue would be needed to enhance legal certainty and protection of fundamental rights.