TTPW Article Series – Part 1: What does the regulation cover and to whom does it apply?

Part 1: What does the TTPW cover, and to whom does the regulation apply?

Scope of the TTPW

The TTPW primarily regulates requirements relating to the dissemination of political advertising, but not the political advertising itself. The lawfulness of the content of a political advertisement is to be determined exclusively by other provisions, and not by the TTPW (see Article 2(2)). Consequently, other regulations remain applicable alongside the TTPW, in particular data protection provisions and provisions relating to services and digital services.

A key prerequisite for the obligation to comply with the provisions of the TTPW is the existence of ‘political advertising’ or a ‘political advertisement’.

What is political advertising?

The central concept of the TTPW is ‘political advertising’. This term must be distinguished from the concept of sales-promoting advertising, which is rooted in the law on unfair competition. The TTPW uses a distinct term and defines it in Article 3(2) in a rather convoluted manner through a multitude of sub-terms, each of which in turn requires its own definition. (The highlighted terms are examined in more detail below):

‘Political advertising’ [is] the drafting, placement, promotion, publication, delivery or dissemination of a message by any means, which is generally carried out for remuneration or as part of internal activities or as part of a political advertising campaign,

(a) by or on behalf of a political actor, unless it is of a purely private or purely commercial nature; or

(b) which is capable of and intended to influence the outcome of an election or a referendum, voting behaviour or a legislative or regulatory process at Union level or at national, regional or local level;

and which does not include:

1. communications from official sources of the Member States or the Union relating exclusively to the organisation and procedures for participation in elections or referendums, including the announcement of candidacies or referendum proposals, or the promotion of participation in elections or referendums;
2. public communications intended to inform the public by, for or on behalf of a Member State authority or by, for or on behalf of the Union, including by, by, for or on behalf of members of the government of a Member State, provided that they are not likely to, and are not intended to, influence the outcome of an election or referendum, voting behaviour or a legislative or regulatory process; and
3. the presentation of candidates in certain public spaces or in the media, which is expressly provided for by law and takes place free of charge whilst ensuring equal treatment of candidates.”

Message

A ‘message’ is to be understood as any statement intended to shape opinion, regardless of whether the opinion is one’s own or that of another. Statements of fact also constitute a message in the legal sense.

Remuneration

‘Remuneration’ means any consideration, whether direct or indirect, of a financial nature or in kind. If the preparation, placement, promotion, publication, delivery or dissemination of political advertising in any way constitutes an (economic) exchange of give-and-take, it is deemed to be in return for remuneration. This interpretation is confirmed by Recital 1 of the Regulation, which states that, in addition to payment, other forms such as payments in kind are sufficient to constitute consideration. However, drawing the line can, of course, be difficult in individual cases.

Internal activity or part of a political advertising campaign

As an alternative to consideration, the fulfilment of either of the following two conditions is also sufficient: ‘within the scope of internal activities’ and ‘as part of a political advertising campaign’. These conditions are also mutually exclusive and stand in alternative relation to one another and to the requirement of remuneration. This means that only one of the three conditions needs to be met. Both terms require further explanation.

A political advertising campaign is defined in Article 3(7): several political advertisements constitute a political advertising campaign if they are intrinsically linked and are jointly devised or financed under a single contract. Advertising campaigns reach more people than individual advertisements. Therefore, particular transparency is to be ensured in this regard (recitals 57 and 64).

‘In-house activity’ is the counterpart to a publicity campaign. The advertising campaign is carried out via an external service provider. Internal activity does not involve the use of external parties. Examples of internal activity include, for instance, printing and distributing leaflets oneself or party members sharing a party’s political content via social media.

Who is a political actor?

Another key term in the TTPW is the ‘political actor’. In addition to the criteria already discussed, this is also an alternative characteristic alongside the ‘influence alternative’, which is set out below. Article 3(4) contains an exhaustive list of possible political actors. Only those individuals and organisations that fall under one of the categories listed there are political actors. Most of the organisations listed are likely to be self-explanatory:

• parties (lit. a);
• (Party) alliances, i.e. primarily coalitions of political parties (lit. b);
• European parties (lit. c);
• candidates for and holders of political office (lit. d and e);
• organisations established solely for the purpose of influencing the outcome of an election or a referendum (lit. f); and
• persons who support one of the political actors in achieving their political objectives, such as youth organisations and, where applicable, political foundations (lit. g; Recital 33).

In practice, there is controversy surrounding, amongst other things, the ‘organisations established solely for the purpose of influencing the outcome of an election or a referendum (lit. f)’ referred to in point (f). This primarily refers to actors that fall below the threshold of a political party, e.g. because they are not intended to exist as a permanent organisation or because they do not take part in elections. Also covered by subparagraph (f) are actors that do not have an organisational structure comparable to that of a political party. Influencers or blog operators are unlikely to be classified as ‘organisations’ within the meaning of subparagraph (f). However, a different assessment may apply if such actors are so closely integrated into an organisation that they must be regarded as part of it. Whether point (f) also covers cases in which a website is operated for or on behalf of a political organisation in return for payment requires examination on a case-by-case basis.

What is meant by ‘suitability’ and ‘orientation’?

As an alternative to a message from a political actor, it is also sufficient if the message is ‘suitable and intended’ to influence a vote or legislative process. In this context, suitability is defined as an objective criterion, whilst orientation is defined as a subjective or functional criterion.

Whilst both ‘suitability’ and ‘orientation’ must be determined on the basis of objective circumstances, one must not infer the existence of one from the existence of the other. Only together do they allow a political message to be distinguished from a private or commercial (or other) message (Explanatory Memorandum 23).

The following, for example, may be used as criteria for determining whether such a substantial link exists between the message and the attempt to influence:

• Overlap with a specific legislative process to which the message relates (e.g. during readings in the Bundestag).
• The means by which the message is disseminated (e.g. funding from a specific grant scheme for political projects; a guest article in a party newspaper).
• The language in which the message is presented (an Instagram post in Sorbian is neither intended nor likely to influence the election to the Bremen Parliament).
• Who the message is aimed at (e.g. family members or existing customers – in which case it is unlikely to constitute political advertising).
• The tone of the message (e.g. a message referring to a legislative process on climate policy and critically addressing a political party’s position is more likely to be designed to influence and is geared towards doing so)
• Of course, the content of the message may also indicate its political nature.

In determining whether influence is exerted, the point in time of dissemination must be taken into account. If the criteria only become apparent later, this is irrelevant to the political nature of the message. This also applies if the dissemination is still ongoing. A message does not ‘gradually evolve’ into political advertising. A different principle may apply in the case of continuously renewed dissemination.

What is a political advertisement?

A political advertisement is political advertising communicated to the public. Political advertising becomes a political advertisement as soon as it is published, delivered or disseminated.

How does political advertising differ from other forms of advertising?

‘Advertising’ in an economic context is defined as any statement made in the course of a trade, business, craft or profession, with the aim of promoting the sale of goods or the provision of services, including immovable property, rights and obligations. These criteria cannot be applied in the same way to political advertising.

Whilst (other) advertising is protected because it is an expression of the right to run a business, the dissemination of political content is an expression of freedom of expression. Although under European law, commercial advertising may also fall within the scope of freedom of expression, these two fundamental rights must be considered separately. Calls to vote, as a core form of political expression, are not subject to the same level of regulation as other advertising messages, which, by their very nature, may be perceived as intrusive.

Are there any legally defined exceptions to the obligations of TTPWs?

Yes, but only to a very limited extent. Official communications, notices or other forms of public communication by public authorities, for example, do not constitute political advertising.

Furthermore, pure expressions of opinion and editorial content (press articles) are generally not regarded as political advertising, unless remuneration is paid for them. If podcasts or social media posts containing editorial content are produced for remuneration, each case must be assessed individually to determine whether direct and measurable remuneration is involved. Only then does it constitute political advertising within the meaning of the TTPW.

Part 2 of this series of articles will follow next week.