EU fundamental rights and democracy implications of data-driven political campaigns
| Published date | 01 December 2020 |
| Date | 01 December 2020 |
| DOI | http://doi.org/10.1177/1023263X20982960 |
| Subject Matter | Articles |
Article
EU fundamental rights and
democracy implications of
data-driven political campaigns
Maja Brkan*
Abstract
This paper examines the impact of data-driven political campaigns on fundamental rights and
democracy in the European Union. It demonstrates that such campaigns risk curtailing a number of
rights and freedoms enshrined in the EU Charter of Fundamental Rights. They can affect voters’
right to respect for private life and protection of personal data (Articles 7 and 8 Charter) through
the collection of massive amounts of personal data that serve as the base for profiling of voters.
Moreover, they can restrain freedom of information of voters (Article 11 Charter) by providing
them only partial information about campaigns of political parties. Furthermore, political manip-
ulation stemming from targeted political advertising may affect the freedom of elections (Article
39(2) Charter), even though it might be a step too far to assert that the use of data-driven political
campaigns undoubtedly leads to elections that are not ‘free’. Finally, the author cautions that it
might be challenging to rely on the foundational legal category of democracy from Article 2 TEU,
given that this provision needs to be given a concrete expression through another Treaty pro-
vision. Rather, in case of manipulative data-driven political campaigns, democracy as a value can be
affected.
Keywords
Data-driven political campaigns, Charter of Fundamental Rights of the EU, freedom of expression
and information, freedom of elections, democracy
1. Introduction
Data-driven political campaigns that rely on the collection and processing of voters’ data are
rapidly gaining popularity among political parties for several reasons. Firstly, this type of
* Maastricht University, Maastricht, Netherlands
Corresponding author:
Maja Brkan, Maastricht University, Duboisdomein 30, 6229 GT Maastricht, Netherlands.
E-mail: maja.brkan@maastrichtuniversity.nl
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(6) 774–790
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X20982960
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campaigning seems to be more efficient as it gives the political parties the possibility to diversify
the messages and to appeal to personal preferences of voters; it also allows to more easily identify
swing voters.
1
Therefore, it gives political parties the opportunity to approach their political
campaigns in a more strategic manner and to focus on particular selected voters or geographical
areas.
2
Secondly, reduced costs of data analytics, coupled with increased computing power, make
these types of campaigns more feasible, which offers political parties additional incentives to rely
on data processing for political purposes.
3
Finally, data-driven political campaigns lend themselves
well to the use on social media. This widens the possibility to reach voters who follow political
campaigns predominantly on social media and engage with traditional media less frequently (TV,
newspaper), particularly young voters.
4
One of the core traits of data-driven political campaigns is that they rely on targeted political
messages. These messages are specifically tailored to voters, based on their profile inferred from
the data available about them.
5
However, political advertising based on data does not necessarily
need to be targeted. As Dommett convincingly argues, data can inform political communication in
four different ways. It can incite political parties to send either (i) general or (ii) specific messages
to all voters, (iii) general messages to specific voters or (iv ) specialised messages to specific
voters.
6
Data-driven political campaigns are therefore not to be readily equated with politica l
micro-targeting.
Yet, as this article will demonstrate, it is precisely the political micro-targeting that can argu-
ably pose the greatest risks for fundamental rights. In addition, given the appeal of micro-targeting,
numerous political campaigns have so far made use of data to personalize their political ads in
order to appeal to voters. This is shown by the increasingly broad use of such campaigns, starting
already with the US presidential campaign in 2012,
7
UK elections in 2015,
8
to the most notorious
1. See in this sense ‘Digital Microtargeting. Political Party Innovation Primer 1’, International Institute for Democracy and
Electoral Assistance (2018), https://www.idea.int/sites/default/files/publications/digital-microtargeting.pdf, p. 7, 13, 16.
2. Compare, in this sense D. Nickerson and T. Rogers, ‘Political Campaigns and Big Data’, HKS Working Paper No.
RWP13-045 (2014), https://ssrn.com/abstract¼2354474, p. 4.
3. D. Nickerson and T. Rogers, ‘Political Campaigns and Big Data’, HKS Working Paper No. RWP13-045 (2014), p. 3-4.
4. For example J. Ohme, F. Marquart and L. M. Kristensen, ‘School lessons, social media and political events in a get-out-
the-vote campaign: successful drivers of political engagement among youth?’, Journal of Youth Studies (2019), https://
doi.org/10.1080/13676261.2019.1645311, point out, referring to other academic work, that ‘young citizens increasingly
receive political information through social media’ and that ‘receiving political information via social media mobilizes
political engagement of young citizens in various ways’.
5. Data-driven political campaigns and political microtargeting used in these campaigns has been subject to the extensive
academic research in the past years. Some of the core works include: I. S. Rubinstein, ‘Voter Privacy in the Age of Big
Data’, Wisconsin Law Review (2014), p. 861-936; D. Nickerson and T. Rogers, ‘Political Campaigns and Big Data’,
HKS Working Paper No. RWP13-045 (2014), p. 1-34; T. Dobber et al., ‘Two crates of beer and 40 pizzas: the adoption
of innovative political behavioural targeting techniques’, 6 Internet Policy Review (2017), https://doi.org/10.14763/
2017.4.777, p. 1-25; F. J. Zuiderveen Borgesius et al., ‘Online Political Microtargeting: Promises and Threats for
Democracy’, 14 Utrecht Law Review (2018), p. 82–96; K. Dommett, ‘Data-driven political campaigns in practice:
understanding and regulating diverse data-driven campaigns’, 8 Internet Policy Review (2019), p. 1-18; C. J. Bennett and
D. Lyon, ‘Data-driven elections: implications and challenges for democratic societies’, 8 Internet Policy Review (2019),
https://doi.org/10.14763/2019.4.1433, p. 1-16.
6. K. Dommett, 8 Internet Policy Review (2019), p. 11.
7. I. S. Rubinstein, Wisconsin Law Review (2014), p. 864-865.
Brkan 775
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