At the end of February the Government put on the table a first proposal to order, limit and provide greater transparency to institutional communication financed with public money. The Council of Ministers approved, in the first round, the Draft Bill on Public Sector Advertising, whose purpose is to regulate how, when and with what criteria administrations can do institutional advertising. The norm still has to go through a second round and a complex parliamentary procedure given the arithmetic of the Cortes, so even being susceptible to many changes, it is worth asking if its master lines would represent an effective firewall against partisan use of public communication through the media.
The objective of the law is to regulate how, when and with what criteria administrations can do institutional advertising
The text starts from a clear premise: institutional advertising must serve the general interest. The law stipulates that its purpose must be informative, educational or of public utility, and establishes neutrality, veracity, objectivity and proportionality as guiding principles. In other words, the idea that institutional advertising cannot be confused with political propaganda is reinforced. However, the thin line is very fine. Where are the limits? What is, or can be considered, propaganda?
A sensitive red line
The draft bill includes a comprehensive catalog of prohibitions. It is established that campaigns may not include messages that extol government achievements for electoral purposes nor induce confusion with political party campaigns. Nor may they incorporate personalized images or mentions of public officials.
Furthermore, specific restrictions are introduced in electoral periods, reinforcing the already existing limits in the current regulations.
The campaigns may not include messages that extol government achievements with electoral purpose nor induce confusion with political party campaigns
The delimitation between legitimate institutional information and politically charged communication is not always simple. The assessment of whether a campaign extols achievements or simply informs about public policies is susceptible to controversy.
The rule is not limited to establishing general principles, but also regulates the planning of advertising activity. Administrations must approve annual institutional advertising plans, accompanied by a justificatory report and subsequent evaluation. The stated objective is to avoid discretionary, improvised, or campaigns lacking a clear strategy linked to the public interest.
Transparency: 'to buy oneself' a media outlet?
Another of the pillars of the draft bill is transparency. The obligation to publish detailed information about the investment made, the contracted means, and the distribution criteria is established.
This facet is especially relevant in a context in which the fate of institutional advertising has been the object of recurrent debate in the political and media sphere, since there are media outlets to which public money is injected disproportionately in relation to the number of users, which has crystallized into media outlets at the service of administrations due to a clear economic dependence. The traceability of spending and the active publicity of data seek to reinforce accountability.
In line, the text rests on a clear narrative: depoliticize institutional advertising and shield its neutrality. The implicit message is that public money allocated to communication cannot become an instrument of governmental self-promotion. The regulation of personalized mentions and the prohibition of extolling achievements in an electoral key point directly to that concern.
Among the novelties of the norm is the establishment of a limit for the reception of state advertising by media outlets and online platforms, which is set at the 35% of their annual net turnover or that of the group to which they belong. All those who have received institutional advertising from any public sector body at the three levels of the Administration and exceed the established limit will not be able to opt for state advertising. The regulation seeks to prevent their economic subsistence from depending on public funds, thus guaranteeing their independence.
This limit will not apply to media outlets and online platforms whose turnover does not exceed two million euros and whose audience is concentrated, at least by 70%, within the scope of a maximum of three bordering Autonomous Communities. These conditions will have to be certified annually and by an independent external agent.
The law incorporates the obligation for media outlets and online platforms that want to receive state advertising to comply with the transparency requirements that Europe sets in its media freedom regulation.
Scope of application and sanctioning regime
The law also expands its scope of application. It is not limited solely to the General State Administration, but extends to the entire public sector, including autonomous communities, local entities, and the institutional public sector. It is, therefore, an attempt to unify the regulatory framework in an area where until now different practices and levels of demand coexisted.
The law will regulate not only institutional advertising but also industrial, commercial or mercantile advertising.
The articles also contemplate a sanctioning regime. Infractions are typified and responsibilities are foreseen in case of non-compliance. With this, the Executive intends to provide the norm with effective correction mechanisms, overcoming the merely declarative logic of principles.
The function of monitoring the allocation of public sector advertising expenditure will be carried out by the National Commission for Markets and Competition (CNMC). In the case of the Autonomous Communities (CCAA) that have not designated a competent independent authority, the CNMC will gather the necessary information for monitoring the allocation of expenditure.