Legal perspectives on political advertising and fake news

Why am I seeing this? Who paid for it?

Fake news isn’t fake news – it’s really a real issue. Then again, you can’t trust anything you read on the internet, including this. Legal scholar Maja Brkan on her efforts to understand and communicate the impact of political advertising and disinformation on democracy.

Fake news? “It’s more useful to think of it as disinformation,” she explains, “that is false information spread deliberately to influence an election, for example.” Surely, that technique predates the invention of the belt? Maja Brkan, Associate Professor of EU, thinks technology makes a big difference, not only because it makes disinformation more scalable. The two big democratic feasts of 2016 illustrate her point.

Brexit campaigners for example used psychographic targeting: “that means knowing so much about a person from their behaviour on social media that you can aim messages at them they will most likely agree with because it corresponds to their political sensitivities. If those posts are shared en masse using bots to add a veneer of legitimacy, you have a tremendous political weapon.”

Older people would receive ads about how billions were sent to the EU instead of building hospitals at home. Those with a xenophobic disposition would receive variations on the propaganda classic swarms of foreigners – in this case entering through Turkey, which was sure to join the EU very soon. “Political messages were clearly tailored to the ‘needs’ and fears of different citizens.”

Florian Raith

Lack of legislation

“The online giants use an advertising-based business model – you pay for using the service with your data, which is then sold to advertisers. Citizens need to be aware of this.” Brkan also thinks it’s a problem that there’s no clear distinction between commercial and political advertising. “There are currently no EU rules that deal specifically with political advertising – any restrictions would have to be based in the GDPR or the recently revised regulation on funding of political parties.”

The EU’s General Data Protection Regulation restricts targeting political ads to those who have explicitly consented to it through e.g. activating cookies. While Brkan hails the GDPR as an important first step in the right direction, she has a problem with resting an issue vital to freedom of elections on this one wobbly pillar: “it’s not the most appropriate framework …”

Crucially, there are no restrictions on content apart from the legislation on hate speech, which in itself a grey area. “Even false and deliberately misleading information could potentially be protected by freedom of expression.” For the moment, the legal landscape is a complex one but “the EU has acted with urgency and was quick to react on a policy level and by establishing expert groups to help them understand and deal with the problem.”

Making European citizens aware

Brkan keeps stressing that this is a fundamental threat to democracy, which shouldn’t be the reserve of ivory tower sophists; and so she does her best to engage citizens. During the Maastricht Europe Days, she hosted an event on the threats of fake news and political advertising entitled, consisting of a discussion with academic Danielle Arets and Roy op het Veld, editor-in-chief of the newspaper 'De Limburger'.

Op het Veld made the painful and painfully obvious point that reliable news is something you pay for. While he is only too aware that traditional news media are losing the fight against the social media giants, he saw the Cambridge Analytica scandal as a chance for newspapers like his to market themselves as bastions of transparency, journalistic rigour and balanced reporting.

Arets is a reader in Journalism and Responsible Innovation, who works with schools and local governments on developing ways improve digital literacy and resilience to disinformation, or in her terms “inoculating people against fake news”. Both op het Veld and Arets are sceptical about regulation since government cannot be regarded as neutral arbiters.

maastricht europe days

Discussing fake news and political advertising with citizens during the Maastricht Europe Days: Brkan, Roy op het Veld and Danielle Arets (from left)
Credits ‘Photostique’

Who paid for me seeing this?

At the same time, it seems naïve to rely on individual virtue when swathes of the population get their news mainly from advertising platforms that generate revenue by maximising engagement through displaying the kind of news the algorithm deems most likely to provoke strong emotional reactions. This is, of course, not to insinuate that e.g. Facebook is in any way political – but it has created the perfect toolkit for political manipulation, and is happy to rent it out to the highest bidder.

Brkan herself has become much more careful: “I personally only agree to basic cookie function on the internet, I try to consult different news sources and I don’t rely on Facebook at all for political information.” Electoral behaviour is, of course, complex and there are a many factors and many steps prior to an individual’s decisions. “Still, we need to protect the individual and legislation will have to be involved in that.”

Brkan calls for transparency and labelling: “If you see sponsored content you have to know who paid for it and based on what information it is shown to you specifically.” If that doesn’t work, she suggests we might want to limit targeting altogether, or at least limit it to the most general criteria and avoid psychographic targeting based on sensitive data. Of course, legislation is no silver bullet: “Enforcement would be very difficult… Also, we should think it through properly; any kind of regulations would have to be very well designed to address the threat that targeted political advertising poses to democracy and freedom of elections.”

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