Debating Electoral Propaganda

The Spanish Senate approved las November the new Ley Orgánica de Protección de Datos y Garantía de los Derechos Digitales (Organic Law of Data Protection and Guarantee of Digital Rights). This law modifies article 58 of the Ley Orgánica del Régimen Electoral General (LOREG; Organic Law of the General Election Regime), with the aim of regulating the electoral propaganda sent through digital channels such as e-mail and electronic messaging system.

This change has sparked the interest of experts, and it has caused a big controversy in the face of the possibility that it allows collecting information about political opinions, which could be used for the targeted sending of electoral propaganda. In other words, does this new modification allow the creation of databases with ideological profiles of the population?

There are multiple interpretations that point in different directions. On the one hand, the Spanish Agency of Data Protection (Agencia Española de Protección de Datos – AEDP) has assured that this new provision does not allow the processing of personal data for the creation of ideological profiles. On the other hand, experts such as Borja Adsuara, De la Quadra-Salcedo or Sánchez Almedia suggest the opposite, and they argue that this law could allow the creation of databases that include citizen’s ideological orientation.

This last group of authors highlights that the new drafting of the law seems to allow the processing of political opinions by political parties, thus contradicting the statement 56 of the General Regulations of Data Protection (Reglamento General de Protección de Datos- RGDP). The RGDP only allows the processing of such data in exceptional cases (when the functioning of the democratic system requires it), while the new drafting of article 58 of the LOREG would turn this data collection into a general rule, assuming the existence of a public interest whenever the appropriate safeguards are put in place. 

Moreover, some experts have warned of the impacts that the new regulation might have. Amongst them, microtargeting strategies for electoral processes, which can bias the formation of public opinion. Both the controversy and the fact that the AEPD published its own interpretation before the law was even voted, show that the writing of the law is not clear at all. This, together with the high sensitivity of this kind of data, suggests that the best option would be to avoid the creation of databases with ideological profiles, with a clear drafting of the law that avoids its misreading.

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