Every election we learn of similar practices: hidden ads, social media fake accounts , deep fakes, political astroturfing, etc. In a time where technology dominates political communication, politicians can use a large and diversified number of political advertising services and reach wider audiences, especially young voters. At the same time, social media, data analytics and algorithm-driven content have transformed how political messages are crafted and delivered, enabling extraordinary precision in targeting voters but also raising concerns about democratic transparency, electoral integrity and civic discourse.
The reality of tecnopolitics requires robust legal frameworks to ensure that political advertising remains transparent and accountable. The recent EU regulation on political advertising is the European response to fight opaque advertising practices aimed at enhancing ads transparency, protecting voter data and limiting the influence of micro-targeted ads during election campaigns.
This EU attempt to create a harmonized framework across member states will reshape national laws in several respects. In this blog post I aim to reflect on how this regulation, fully entering into force in October 25, will impact on Portugal’s legal approach to political advertising.
EU’s New Political Advertising Regulation: A Brief Overview
The EU political advertising regulation targets the rising concerns over how political ads are deployed online, particularly during sensitive periods like election campaigns. Prior to the regulation, the Commission had already published guidelines with a number of recommended measures for very large online platforms and search engines to mitigate systemic online risks that could affect the integrity of elections, thus providing guidance for the European Parliament elections held in June 2024. In the same context, the Commission stated that political advertising should be clearly identified as such, in anticipation of the new regulation on transparency and targeting of political advertising.
The EU political advertising regulation, considering the concerns about the spread of unidentified political ads, or ads originating in third country entities or sponsored by third country nationals, requires greater transparency by imposing clear disclosures on who funds political ads, limiting the use of personal data for targeted advertising techniques, including observed and inferred data, and adopting rules on their supervision and enforcement.
One of the standout traits of the regulation is the mandate for providers of political advertising services to maintain publicly accessible databases of all political ads, detailing information about the sponsor, reach, and target audience. This transparency is pivotal also for countries to reinforce political accountability. By mandating transparency around who funds political ads and how they are targeted, the regulation ensures that politicians and parties can no longer operate behind a veil of secrecy. This visibility makes it easier for voters, journalists, and watchdog organizations to hold political actors responsible for their messaging strategies and content.
What the EU Political Advertising Regulation is not
While fostering transparency and accountability to the political advertising landscape, the EU regulation does not affect the content of political advertisements nor the legal competence of member-states to regulate political advertising within their borders. In addition, it must also be said that the regulation does not "alter the rules regulating the conduct and financing of political campaigning, including general bans or limitations on political advertising during specified periods, the so-called silence periods, donations by individual campaign donors or prohibitions regarding the use of commercial advertising for election campaign purposes” (see recital 14).
Yet, the EU Regulation sets common standards that all must meet. This harmonization aims to prevent gaps and inconsistencies that political actors might exploit by operating across different countries.
Harmonizing National Laws Across the EU
Countries across the EU are now tasked with reviewing and revising their national laws to comply with the regulation’s provisions. This process involves not only updating legislation but also establishing or empowering enforcement bodies to oversee compliance and address violations effectively. A profound implication of the regulation is that Member-States, as stated in its recital 12, are prevented from maintaining or introducing, in their national laws, provisions on the transparency of political advertising that diverge from those laid down in it.
Also, as mentioned by van Drunen, Natalie Helberger e Ronan Ó Fathaigh, an area that will be subject to updates relates to how Member States define political advertising, particularly given the fact that some Member States treat political advertising in a broad sense.
What This Means for Portuguese Law
Portugal already regulates regulating political advertising, primarily through the Electoral Law and the Law on Political Parties’ Financing and Transparency, but the new EU regulation demands a comprehensive overhaul.
Firstly, Portugal’s Advertising Code (Decree-Law 330/90 of October 23, as amended) clearly separates political propaganda and advertising, stating that for the purposes of the law political propaganda is not considered advertising.
Secondly, political advertising in Portugal is currently governed by the Electoral Law (Lei Eleitoral), particularly Law No. 14/79 of May 16, 1979, as amended, which regulates electoral processes, including campaign rules and advertising restrictions.
In addition, Law 72-A/2015 states that, from the publication of the decree setting the date of the elections, political advertising carried out directly or indirectly through commercial advertising media is prohibited.
Clearly these laws were drafted before the digital era and do not fully address online political advertising or the nuances of micro-targeted campaigns on social media platforms.
Even the General Data Protection Regulation (GDPR), implemented in Portugal via Law No. 58/2019, has set strong foundations for personal data protection but leaves gaps specifically related to political advertising practices.
Specifically, Portuguese law will need to:
- Reconsider the provision in the Advertising Code – in my view already revoked –which differentiates political propaganda and commercial advertising.
- Review the prohibition on commercial advertising during election periods.
- Establishing clear rules on the conduct of influencers.
- Strengthen transparency requirements by mandating clear and accessible disclosures on the funding and sponsorship of political advertisements, beyond current obligations.
- Introduce stricter controls on the use of personal data for political targeting in line with GDPR provisions.
- Enhance the powers of oversight bodies such as the Portuguese National Election Commission (Comissão Nacional de Eleições - CNE), enabling it to monitor digital political ads actively and enforce penalties for non-compliance.
- Require online platforms operating in Portugal to maintain public registers of political advertisements and designate local representatives, ensuring easier enforcement and transparency.
These reforms will align Portuguese legislation with the EU regulation’s objectives, guaranteeing that digital political campaigns operate under clear and fair rules.
For political actors
Portuguese political actors, in the specific sense of the EU regulation, will need to revise their digital campaign strategies accordingly. Current laws impose general restrictions on campaigning near election days, but the EU regulation’s detailed rules on ad targeting and blackout periods will require more precise national provisions.
This shift will push campaigns toward broader, more transparent messaging, helping to level the playing field and maintain democratic discourse free from hidden manipulation. For instance, undisclosed political advertisements, often referred to as “dark ads,” which appear only to selected audiences without public scrutiny, will no longer be permitted.
The regulation also prohibits the use of personal data collected without explicit consent for political targeting, closing loopholes that allowed campaigns to exploit personal profiles on social media and other platforms.
Conclusion
Technology is fundamentally changing politics and the political actors due to an increasing number of services operating in the field of political advertising. In the television era, political advertising was mainly focused on audiovisual media and campaign periods. In the digital era, a growing and diverse number of political advertising services operate outside traditional media, including- Political consulting firms, advertising agencies, ad-tech platforms, social media, public relations firms, influencers, data analysis and measurement operators.
By establishing clear rules for transparency, data protection, and accountability, the EU regulation on political advertising not only harmonizes national laws but also protects the autonomy of voters and safeguards democratic integrity. As Portugal adapts to these changes, it stands to benefit from a more open and fair political advertising landscape—one that enhances trust in its electoral processes and ultimately its democracy.
