The Government introduces the political control of online communication during the electoral campaign
Some considerations on the removal/blocking of [1] non-compliant political advertising material on online platforms. By adopting the first emergency ordinance of 2025, the Government is copying European legislation but adapting it Romanian-style, legislating the elimination of political posts that are not to the liking of electoral bureaus, before a court decision.
Through Emergency Government Ordinance No. 1/2025, the Government wanted to legislate certain aspects concerning the conduct of the presidential elections, which would take place in a rerun on 4 May 2025 (after the cancellation of last year’s elections).
The Government paid Special attention to online election campaigning, both on regular and “big media platforms”.
It is possible that Regulation (EU) 2024/1083 of the European Parliament and of the Council of 11 April 2024, establishing a common framework for media services in the internal market (also called the European Media Freedom Regulation) also stimulated the Government’s unfriendly attention to online platforms. Point 4 of its Preamble contains unflattering remarks about online platforms, especially the big ones:
“firstly, global online platforms act as gateways to media content, with business models that tend to disintermediate access to media services and amplify polarising content and disinformation. Those platforms are also essential providers of online advertising, which has diverted financial resources from the media sector, affecting its financial sustainability and, consequently, the diversity of content on offer.”
Once it was officially established that online platforms are the media’s mortal enemy because they polarise and misinform, as opposed to the traditional media, which unites and informs with maximum fairness (if it were not so, in our country, parties would no longer substantially fund the “traditional” media), the Government followed the trend and proceeded to adopt regulations to censor the enemies.
Thus, Government Emergency Ordinance 1/2025 contains a drastic regulation on sanctioning offences committed in online electoral campaigning. Failure to comply is a serious offence punishable by a heavy fine of 15,000 up to 50,000 lei.
But the worst part is yet to come.
Who will the electoral bureaus support?
According to art. 17 paragraphs 5 and 6 of GEO 1/2025, the decisions of the Central Electoral Bureau (BEC) and of the other electoral bureaus admitting complaints regarding online electoral campaigning are enforceable and constitute orders to take action against illegal content within the meaning of art. 9 of Regulation (EU) 2022/2.065 (Digital Services Act – DSA).
In other words, these decisions, issued by eminently political entities (electoral bureaus), will be enforced even if they are not final, i.e. they can be enforced before being subject to the control of their merits and legality, which can be exercised exclusively by the courts.
This legislative solution is diametrically opposed to the one provided for in Article 42(5) of Law 370/2004 on presidential elections, according to which appeals against the decisions of the electoral bureaus suspend the execution thereof. Moreover, it should be noted that Article 17 of GEO 1/2025 does not provide for any derogation from Article 42(5) of Law 370/2024, which provides for the suspension of the execution of decisions of electoral bureaus that are challenged.
So, if a political body, such as the electoral bureau, does not approve an online campaign post, it will be able to decide to immediately remove/block that post, even if the political body’s decision is not final and can be overturned in appeal.
Similarly, using the logic of the Government’s Regulation, one could proceed to demolish a building based on a non-definitive administrative decision without waiting for the decision to be challenged in court and the court to settle the challenge.
The political character of the Central Electoral Bureau (BEC) results from its composition, which includes:
- 5 judges
- 3 members of the Permanent Electoral Authority (President and 2 Vice-Presidents). The President is appointed by the Parliament based on the proposal of the parliamentary groups, the President of Romania appoints one vice-president, and the other is appointed by the Prime Minister. Those who elected/appointed them to office can also remove them from office for “good reason”, so those elected/appointed depend entirely on the goodwill of the politicians who elected/appointed them.
- 10 representatives of political parties (politicians).
Thus, out of 18 members, 13 are politicians, and 5 are judges. It is obvious that the majority, when making a decision, remains uninfluenced by the judges since the voting arithmetic clearly favors the politicians, who constitute a more significant proportion of the Central Electoral Bureau ‘s composition.
Correlatively, the County Electoral Bureau, respectively the Electoral Bureau of the district and municipality of Bucharest and the Electoral Bureau for polling stations abroad are composed of 3 judges, a representative of the Permanent Electoral Authority and no more than 7 representatives of the political parties that have proposed candidates. So, out of 11 members of those electoral bureaus, 3 are judges, and the remaining 8 (the vast majority) are politicians (as mentioned above, the Permanent Electoral Authority is a political body – controlled, through appointments and dismissals, by politicians).
The county polling stations’ electoral bureaus comprise a maximum of 9 members, including a chairperson, a deputy chairman, and a maximum of 7 members, as proposed by the political parties participating in the elections. So out of 9 members, 7 (the vast majority) are appointed by parties. The political nature of the composition of the polling station’s electoral bureau is obvious.
The fact that these eminently political entities can order the removal/blocking of content from online platforms without waiting for the judgement of a court of law, ruling on the merits and legality of the removal/blocking decision, is a gross interference of politics in the exercise of the right to free expression.
The solution is in the hands of the Parliament
To balance the right to free expression with the rights of candidates’ images or the interests of political groups, online content should only be removed or blocked after all appeals against the removal/blocking decision have been exhausted. This means that enforcement should occur only after a final court judgment on the legality and merits of the removal/blocking decision has been issued.
It may be argued that court judgments take considerable time to conclude. However, this issue is not insurmountable. Electoral legislation already includes provisions that expedite the resolution of electoral disputes, typically reducing the time required by the courts to mere days. Similar provisions could be implemented to decide whether to remove or block online content.
It should also be noted that Regulation (EU) 2022/2065 does not enforce non-final decisions. Article 9 of the Regulation, which is dedicated to the order to take action against illegal content, provides in paragraph 6 “the conditions and requirements laid down in this Article shall be without prejudice to the requirements of national civil and criminal procedural law.“
In our legal system, enforcement occurs only after the enforcement order has become final, either following a challenge or upon the expiration of the time limit for challenging it.
Addressing this issue requires action from Parliament. Upon adopting the law that approves the Government Emergency Ordinance 1/2025,the Parliament could introduce provisions stipulating that decisions to remove or block online content will only be enforceable after a final judgement on any appeal against such decisions has been rendered. Additionally, Parliament may also establish very short deadlines for the courts to resolve such disputes.
[1] Point 22 of the preamble to Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a single market for digital services states: “In order to benefit from the exemption from liability for hosting services, the provider should, upon obtaining actual knowledge or awareness of illegal activities or illegal content, act expeditiously to remove or to disable access to that content.”