Category: Free Flow of Information Online

K-Monitor is preparing for litigation challenging the lack of recourse for getting information about online political advertising on social media platforms. K-Monitor believes that online political advertising has a decisive influence on national politics, and it is thus important that citizens be allowed access to information about this advertising, such as who is paying for it and who is being targeted. But currently there is a lack of clarity about whether social media platforms fall under the scope of Freedom of Information (FOI) legislation.

K-Monitor believes that solid case law is important to clarify whether platforms must provide information under current legislation. A positive ruling will force these platforms to respond to information requests, while a negative ruling will provide a base from which to push for new legislation.

Through pre-litigation research, K-Monitor has assessed in depth how FOI laws could be used to enforce greater transparency of government funded political ads on social media. After preparing an overview of the FOI laws of 27 EU Member States K-Monitor came to the conclusion that only four countries (Estonia, Bulgaria, Hungary, Poland) have legislation that allows for FOI-based litigation against privately-owned companies. However, none of the four jurisdictions provides a legal path that can be considered bulletproof. In all jurisdictions litigation could result in the significant development (or deterioration) of case law.

K-Monitor used FOI requests to test the responsiveness of very large online platforms and learned that they do not comply with a request invoking national Hungarian FOI law and seem to purposefully avoid getting involved in legal debates on national legislation.

K-Monitor also looked into other avenues for litigation and explored how the EU’s relatively new regulation on political advertising transparency (TTPA) could be a tool to increase the transparency of online political advertisements. The new EU legislation could also support domestic FOI lawsuits. However, K-Monitor has found that a serious shortcoming of the TTPA is that its scope could easily exclude advertisements commissioned by national governments for the purpose of sharing information as stipulated among the exceptions listed in the regulation. This is a path that can be used to circumvent the TTPA in order to spread government propaganda without transparency requirements. Similarly, a vetted researcher status under the EU law could give greater insight into ads data, but this would not advance public access to information in general.

In its research report, K-Monitor flagged another shortcoming, namely that Article 10 of the European Convention on Human Rights does not seem relevant in such litigation as the ECtHR’s case law is limited on state-held information.

Since major platforms announced their withdrawal from the online political advertising market recently, cases involving them could likely only relate to past activities – except if governments keep on advertising some of their communication making use of their exceptional status under the TTPA.

K-Monitor identified two dilemmas regarding future litigation:

1) For the Hungarian jurisdiction, which would be the most favourable, temporary loopholes in the legislation make it currently impossible to sue private companies that do not perform public duties. Thus litigation in the short term should rather be initiated in Poland or Bulgaria with considerable risks.

2) As the TTPA is coming to application in latter part of 2025, Government ad activity needs to be further monitored to see how much government funded ads that are not labelled political remain an issue.