Professor Lorna Woods, University of Essex

The European Democracy Action Plan (EDAP) is one piece of a larger effort to regulate the online world. Unveiled as a key initiative by Commission President von der Leyen, it joins upcoming legislation like the Digital Services Act (DSA) and Digital Markets Act (DMA). These measures signal a change in how the EU approaches internet regulation and raise questions about the EU’s authority in this space.

The EDAP emerges from a concern for democracy, human rights, and the rule of law, especially in light of challenges posed by the COVID-19 pandemic. The plan aims for a unified internal and external approach, recognizing the UK as part of the latter. It offers a “reinforced EU policy framework” focusing on:

- promoting fair elections and robust democratic participation;

- bolstering free and independent media; and

- combating disinformation.

The plan heavily emphasizes citizen and civil society empowerment to counter these threats.

Democratic Participation

This theme centers on four elements: 

- ensuring transparency in political advertising and communication;

- regulating the financing of European political parties;

- fostering cooperation for free and fair elections; and

- encouraging democratic engagement beyond elections.

Political Advertising

The risk of election interference through social media is widely acknowledged. While acknowledging that some aspects might already fall under the GDPR, the Communication seeks to introduce legislation for transparency in sponsored political content. This would complement rules for online advertising in the proposed DSA, with the goal of implementation before the next European Parliament elections. Though details are scarce, defining what constitutes “sponsored” or “political content” will likely be a point of contention. The regulations would extend beyond “sponsors” to include those involved in content production and distribution, including agencies, political consultancies, and platforms. The scope of “platforms” is also unclear, potentially encompassing search engines. These rules, not limited to election periods, would prioritize transparency and accountability through measures like labeling, record-keeping, and transparency of targeting criteria rather than content-based restrictions. The Communication also mentions the possibility of co-regulatory codes and supervisory bodies.

Funding of European Political Parties

Since this falls under EU jurisdiction, the Commission plans to review the existing legislation (Regulation 1141/2014) governing this area.

Strengthened Cooperation to ensure free and fair elections

While primarily the responsibility of individual Member States, elections are nonetheless subject to some EU law, particularly regarding data protection. The Commission aims to facilitate collaboration between Member States through the existing European cooperation network on elections. This could involve an online forum, joint training, shared resources, and online monitoring capabilities. The Communication proposes that election processes could be classified under critical infrastructure regimes, suggesting a broader definition of critical infrastructure.

Beyond technical security and e-voting, the Communication raises the issue of balanced media coverage during elections. It identifies the European Regulators Group for Audiovisual Media Services (ERGA) as relevant, though this falls outside the EU’s legislative reach. The Communication also highlights the potential for collaboration with the Council of Europe, UNESCO, and the OSCE to share best practices.

Promoting democratic engagement 

Addressing what was previously termed the “democratic deficit,” the EU has long grappled with citizen engagement. The Communication suggests initiatives linked to the 2020 Citizenship Report, the Rule of Law Report, the 2020-2025 Gender Equality Strategy, the EU Youth Strategy (2019-2027), and the EU anti-racism action plan 2020-2025.

The Communication proposes measures to combat online hate speech, currently addressed through the voluntary Code of Conduct on Tackling Illegal Hate Speech. Expanding the list of EU crimes to include hate crime and hate speech is also suggested, though the specific protected characteristics are unclear. The DSA might render this somewhat redundant if it encompasses hate speech.

Media Freedom 

The Communication focuses on two main aspects of media freedom and pluralism: 

- safeguarding the online and physical safety of journalists, including protection from abusive litigation (anti-SLAPP);

- examining the influence of platforms as digital gatekeepers and their impact on advertising revenue.

Safety of Journalists 

The lack of consequences for threats against journalists, a long-standing issue, has been a topic of discussion for at least a decade. The Commission plans to contribute to this dialogue through the European News Media Forum, alongside proposing a recommendation on journalist safety. While limited in its internal legal power, the EU proposes external monitoring, public diplomacy, and funding for legal aid and shelters to support journalists.

Anti-SLAPP and Professional Standards 

Recognizing SLAPPs (Strategic lawsuits against public participation) as a tool for harassing journalists and those serving the public interest, the Communication acknowledges their potential cross-border impact. This includes forum shopping and increased complexity for defendants, highlighting the need to balance such actions with the protection of individuals’ personality rights, particularly regarding the free movement of services. The Communication proposes an analysis of the Rome II and Brussels Ia regulations. A new initiative is planned, preceded by a mapping study and an expert group on SLAPPs. 

The Commission aims to encourage stronger collaboration between media self-regulation bodies.

Additional Support 

The Communication highlights the 2018 revision of the AVMSD, which calls for media ownership transparency. Notably, while requiring service providers’ contact information and operational jurisdiction, the provision for disclosing beneficial owners and ownership structure remains optional.

The plan includes analyzing national rules on media diversity and concentration, considering the role of online platforms. Instead of EU-level legislation, the focus is on coordination through existing tools like competition law, freedom of establishment, and the revised AVMSD. The Communication underscores the need for financial support from Member States, emphasizing compliance with State Aid rules.

The Communication emphasizes the significance of state advertising in some Member States, proposing that transparent rules and fair allocation criteria could mitigate risks. It also highlights the relevance of the public procurement strategy. These points echo themes in the Media and Audiovisual Action Plan, which focuses on supporting the media and addressing the European market’s segmentation.

Countering Disinformation 

The Communication expands the typical disinformation/misinformation dichotomy by adding “information influence operation” and “foreign interference in the information space.” Each category may require a different approach, though differentiating between them in practice might prove challenging. The introduction of oversight could raise concerns about freedom of expression. The proposals seem to build on existing initiatives, focusing on issues like the amplification of harmful content, economic incentives for spreading disinformation, and the low cost for foreign actors engaging in influence operations. It stresses that these actions should not infringe on individuals’ right to express opinions or access legal content. The Communication highlights the importance of fact-checking.

Actions in this area fall into three categories:

- capacity building;

- platform obligations and accountability; and

- citizen empowerment.

Capacity Building

Recognizing the ease with which information can be manipulated, the Communication calls for closer cooperation internally, with civil society, academia, private industry, international partners, and existing initiatives like the EU Security Union Strategy. It proposes developing a common framework for collecting evidence on foreign interference and potentially expanding the Rapid Alert System’s scope to include ENISA, EDMO, and Europol.

A new proposal involves imposing costs on perpetrators. The Communication acknowledges the need to make sanctions more credible and frequent, thereby raising the cost of foreign influence operations. It also recognizes the need to address threats originating from third countries, particularly in the European Neighbourhood and Enlargement region. 

Platform Accountability

Recognizing that platforms are not neutral actors, the Communication proposes a co-regulatory oversight mechanism within the DSA, emphasizing the significance of this issue. The DSA is expected to implement a risk-managed approach, potentially influenced by the Carnegie UK Trust’s framework of “safety by design,” which appears to have informed the UK Government’s Online Harms White Paper. Meanwhile, the Communication plans to issue guidance on combating misinformation, strengthen the existing Code of Practice, and emphasize the importance of EDPB guidance on GDPR application. 

Empowering Citizens

This section focuses on strengthening media literacy through various initiatives involving civil society, higher education establishments, and existing media initiatives. Though intuitively appealing, this approach might prove challenging, as the success of media literacy programs might hinge on transforming business systems that currently seem to favor the spread of misinformation and disinformation.

Conclusion

The EDAP is an ambitious plan, and its implementation timeline and further details (such as imposing costs on perpetrators) remain to be seen. While many of its aspects focus on cooperation and leveraging existing initiatives, highlighting the EU’s limited legislative power in this domain, the plan’s value lies in its recognition of disinformation and misinformation as a complex, multi-faceted issue. By bringing together various stakeholders and initiatives, EDAP aims to create a more coordinated response. The effectiveness of this increased cooperation in addressing the challenges posed by disinformation and misinformation remains to be assessed.

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