noyb win against European Commission: EDPS (European Data Protection Supervisor) issues decision finding that the European Commission has illegally targeted advertisement on citizens using "sensitive" personal data on their political views.
- Decision by the EDPS
- Complaint filed with the EDPS in 2023
- Related noyb complaints in Germany ("Target Leaks")
EU Commission tried to influence political views in the Netherlands. In the contentious fight over the heavily criticized chat control regulation (a proposed EU law that could undermine all encrypted online communication to allow authorities to read online chats), the European Commission has identified the Netherlands as a Member State that they wanted to influence politically. In an attempt to "flip" the views in the Netherlands, the Commission went to X/Twitter and made postings indirectly promoting this Regulation.
Political Targeting on X/Twitter. The European Commission did however not only post these political messages, but also targeted users who weren't interested in keywords like: #Qatargate, brexit, Marine Le Pen, Alternative für Deutschland, Vox, Christian, Christian-phobia or Giorgia Meloni. The clear intention was to only target politically liberal or left users, but not conservative or right-wing users. Advertisers often use so-called "proxy data" (so data closely associated with political thinking) to target politician views. By doing so the European Commission has clearly triggered the processing of personal data of EU citizens to target them with ads.
Felix Mikolasch, Data Protection Lawyer at noyb: "Since Cambridge Analytica it is clear that targeted ads can influence democracy. Using political preferences for ads is clearly illegal. Nevertheless many political players rely on it and online platforms take almost no action. Therefore, we welcome the decision of the EDPS."
No legal basis. Other than "normal" personal data, the law gives special protection to so-called sensitive data, which includes political opinions. The categories chosen by the Commission are not all directly "conservative" or "right-wing" but still clearly targeted political views of citizens. The only purpose to exclude "brexit" in such a context is to remove people sympathizing with Brexit. Such processing is only allowed under very limited conditions - such as explicit consent. Such consent did not exist. The European Commission also lacked any other legal basis.
EU Commission in control. The EDPS clarified that the Commission was a controller of the processing operation and is fully liable for unlawful targeting on the platform. However, the online platform may also be held responsible for the same case. noyb has also filed a complaint against X/Twitter with the Dutch DPA in 2023.
Felix Mikolasch, Data Protection Lawyer at noyb: "We have many more cases on political microtargeting in the Member States. Many political parties engage in the same illegal practice. We hope the EDPS decision will be a guiding light for national authorities that currently investigate such practices."
Reprimand. The EDPS only issued a reprimand - so a formal finding that the processing was illegal and a formal warning. The EDPS considered that other measures, such as a fine, were not necessary as the Commission stopped the practise. The decision was issued under Regulation (EU) 2018/1725, often called the "EU GDPR" that only applies to the EU institutions, but is very similar to the "normal" GDPR that applies to everyone else.
