The cornerstone of any functioning democracy is the ability to speak freely without fear or favour and to be confident that your right to say it is inalienable.
Index on Censorship has spent years working with dissidents in repressive countries where speaking out can lead to anything from banishment from your home to state-sponsored abduction and execution. Our work started with materials smuggled out of the USSR – published and translated – and smuggled back into the Soviet bloc so that different opinions and divergent points of view could have a platform on which they could be heard.
Today, we do the same in Hong Kong, Russia, Belarus, Iran and Afghanistan where we support the rights of citizens to use their freedom of speech and freedom of expression to challenge those who seek to crush dissent and disagreement.
The principle of free speech is one worth fighting for and defending whenever it comes under attack.
This principle is even greater when engaging in lawful and legitimate democratic activities whether that be campaigning on a single issue or seeking voter support in elections.
In recent years, the way we engage with voters has changed – dramatically. Long gone are the days when town hall meetings, articulate speakers and well-designed printed materials were the best mechanisms for getting your message out.
Now a huge amount of the activity is digital, undertaken from a computer screen with complex and sophisticated targeting of bespoke policy offers to the exact voters needed to build a winning coalition. The advancement of technology has greatly outpaced existing political regulations and opened new opportunities for bad faith actors and unfriendly foreign governments to interfere in domestic elections.
Rightly, governments around the world are looking at how they create a level playing field against the new platforms available and secure the integrity of their election processes.
However, any new regulation has the possibility of impinging on free speech and free expression, usually as an unintended consequence of a well-intentioned proposal.
And this is where there exist dangers in the proposals by the European Union to regulate political advertising.
The proposals for regulations on the transparency and targeting of political advertising are now in the critical trialogue phase, with the European Commission, Council and Parliament thrashing out compromises to reach a series of new rules they all broadly agree on.
The problems arise from the broad scope of what is being proposed and mechanisms that will be built into the regulations to enforce it. Both offer huge challenges to freedom of speech and freedom of expression and require considered thought by lawmakers in the EU.
The original scope drew little distinction between political advertising and political speech. Some changes along the legislative pathway have constrained, slightly, the scope, but Article 2 still defines political advertisement as:
“the preparation, placement, promotion, publication or dissemination, by any means, of a message: (a)by, for or on behalf of a political actor, unless it is of a purely private or a purely commercial nature; or (b)which is liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour.”
Such a wide-ranging scope would mean that any attempt to promote this article – an opinion piece by a campaign group on a subject of regulation – would fall into the scope of the regulations and, ironically, a free speech organisation could find themselves either censored or denied our right to express our views.
Of course, every campaign attracts media attention and there has been little commentary or clarification as to how these regulations would apply. Does a journalist discussing the latest policy announcement by an opposition political party now count as ‘disseminating a message by a political actor’? Does live coverage of a climate protest or a campaign stunt by pro-life groups constitute ‘promotion of a political actor which is liable to influence the outcome of an election or referendum’?
Do we really want to be concerned that our news outlets are resorting to self-censorship through fear of state-mandated regulation? I am certain that no EU member state would wish for that but the unintended consequences of attempts to regulate free speech could do just that.
But Article 2 is not the only place where freedom of speech is undermined by these proposals.
The enforcement of these rules will, in part, be down to individuals ‘flagging’ content that they believe is in breach of the rules. Big tech platforms will then have to ‘examine and address’ the notifications they receive.
While having mechanisms to allow for content to be considered – again new rules are sensible – these proposals make big tech platforms the arbiter of what is and what isn’t acceptable political speech. It places a huge amount of power to regulate our freedom of speech in the hands of very large online platforms with little clarity or transparency of how they will consider the flags they receive.
During regulated periods ahead of elections, those platforms will have to process those flags within 48 hours – with failure to consider the flags or enforce the rules opening them to potential liability and penalty.
The inevitable outcome of this is that during elections, big tech platforms will act overly cautiously, and flagged materials will be removed to prevent the platform from being exposed. And once that happens, the floodgates will open for retaliatory ‘flagging’ between rival positions.
Bad-faith actors will happily target politicians and those whose political positions they oppose with vexatious and numerous flags in order to silence them. You can easily foresee a situation where political content from smaller groups are mass-flagged and their views and opinions removed from the digital sphere while they are examined and considered.
The protection of freedom of speech is a core tenet of our political systems just as much as ensuring transparency and accountability in political activity. One need not be at the expense of the other.
The Commission, Council and Parliament can find a solution that protects the founding principles of the Union – fair elections and freedom of speech.
