Foreign Electoral District of Ukraine: the Prospect of Campaigning Abroad

Russia’s full-scale invasion led to large-scale migration of population from all regions of Ukraine, occupation of certain territories and destruction of civilian infrastructure, while the prohibition of pro-Russian parties and the escape of some politicians abroad completely reshaped the political landscape of Ukraine. And while the prospect of holding elections in Ukraine remains rather slim at the moment, state authorities need to start preparations for the electoral process as early as now so that the people of Ukraine and the international community recognize their legitimacy.

Providing Ukrainian immigrants with the opportunity to vote abroad will be one of the most difficult tasks in the context of post-war elections. According to OPORA, as of June 2023, 8.2 million Ukrainians were registered outside our country. Unfortunately, this figure is not final and the number of Ukrainian immigrants may increase further due to mass shelling of energy infrastructure, the advance of Russian troops and other factors. Many of our compatriots probably won’t return to Ukraine before the elections due to the lack of housing and job opportunities or because of unsafe conditions in their home regions. At the same time, all these people still hold Ukrainian citizenship and therefore retain the right to elect the government and determine the future of Ukraine.

The process of organizing elections abroad will encounter many problems: maintaining personal data records which are necessary for compiling the voter lists, the lack of polling places, etc. Another important aspect of preparation for the elections is to ensure that candidates and parties have the opportunity to campaign and communicate with their voters. Ukrainian elections have long been accompanied by large-scale campaigns of political agitation in the physical (outdoor advertisements on billboards and in the public transport, distribution of newspapers, leaflets, etc.), media (video ads on TV and radio broadcasts) and online space. However, the opportunity to use all these campaigning methods may be substantially limited or even unavailable outside Ukraine. According to the results of Civil Network OPORA’s research carried out in the April-May 2023 timeframe, the majority of Ukrainians abroad learn the news from messengers (50%) and social media (47%). It is likely that these platforms will become the main campaigning tools in the post-war elections.

In 2023, OPORA conducted a study on the potential difficulties that may be faced by political parties and candidates, should they decide to launch pre-election campaigns to reach Ukrainian citizens abroad. However, many countries have amended their legislation due to the approach of the “election year”, while the majority of social media platforms have adapted their policies to the new laws and regulations. In this publication, we analyze the new restrictions on foreign advertisers’ activity in the countries that host the largest populations of Ukrainian immigrants and try to answer three key questions:

Does the legislation of a particular country permit candidates or parties taking part in national or local elections in Ukraine to run political ads online?
Does a candidate or a party taking part in national or local elections in Ukraine have the opportunity to run political ads online according to the advertising policy of a particular social media platform?
Are there any additional restrictions (e.g. advertising rate) on online campaigning abroad for candidates or parties taking part in national or local elections in Ukraine?

Ukrainian legislation

The Electoral Code is the key legislative act that establishes the rules and regulations for pre-election campaigning in Ukraine. It defines pre-election campaigning as any kind of activity that encourages voters to vote or refrain from voting for a certain candidate or political party – electoral subject. Campaigning can be carried out in many different ways: rallies, debates, concerts, distribution of leaflets, political advertising in mass media, etc. Online and social media campaigning is coming to the fore in Ukraine and other countries. However, the use of these campaigning tools is hampered by the laws of foreign countries, the policies of social media platforms, as well as indirect obstacles created by Ukrainian legislation.

As of today, the Electoral Code doesn’t provide any regulatory framework for pre-election campaigning abroad. This is due to the need to observe the principle of state sovereignty, which prohibits Ukraine from interfering in the internal affairs of other countries and extending its jurisdiction beyond its territorial boundaries. Ukrainian politicians seldom resorted to campaigning abroad in the previous elections because there weren’t too many voters in the foreign electoral district and the turnout rate was quite low. Now that millions of Ukrainians are going to vote abroad, online advertising may prove to be the easiest and most affordable way for parties and candidates to communicate with their voters, so the issue of pre-election campaigning outside Ukraine is becoming extremely important.

The first restriction imposed by the Electoral Code is that Ukrainian diplomatic missions (precinct election commissions and polling stations are usually located at the premises of these institutions) are only required to publish on their websites the information about election date and hours for voting, location of polling places, voting procedure, the rules for including people on the list of voters at the overseas polling stations, etc. Ukrainian embassies and other state institutions must observe neutrality and refrain from publishing the campaign materials of any candidate or political party.

Secondly, the Electoral Code prohibits foreign citizens from taking part in pre-election campaigning (including by way of conducting journalistic activities or participating in concerts, stage performances and other public events). Furthermore, Ukrainian politicians and parties are banned from campaigning in foreign mass media that operate on the territory of Ukraine. At the same time, the Electoral Code does not prohibit political parties and candidates from employing the services of foreign legal entities.

Thirdly, the Electoral Code places the candidates and parties under an obligation to open election fund accounts exclusively in national currency (hryvnia), which may create additional obstacles to making payments abroad. After the end of campaign period, each candidate and political party is required to submit a financial report containing information on campaign finance (including the expenditures on campaigning activities) to the authorized state bodies that are obliged to publish these reports.

Therefore, as of May 2024, the legislation of Ukraine does not establish any legal framework for campaigning abroad that would allow candidates and parties to run political campaigns outside the country, ensure transparent and proper financial reporting, as well as remove restrictions imposed by the Electoral Code. The draft law No. 8310 (last revised in March 2023), which was supposed to amend the Electoral Code and provide for regulation of online pre-election advertising in Ukraine, is yet to be submitted to the Verkhovna Rada. Currently, the problem of preparation for campaigning in the first post-war elections with due consideration for new realities is not on the top of Ukrainian lawmakers’ agenda.

International law

While the legislation of Ukraine does not give a clear-cut answer to the question whether Ukrainian parties and candidates are allowed to campaign abroad using various online tools, international law sets much more distinct limits. Since the EU and the UK host the largest number of Ukrainian citizens, we will take a closer look at the restrictions on cross-border advertising that exist in these countries.

EU legislation

On March 11, 2024, the European Council adopted a new Regulation on the transparency and targeting of political advertising, which is already in effect throughout the European Union. According to EU officials, these legislative changes are primarily aimed at “countering information manipulation and foreign interference in elections”, making it easy for European citizens to immediately recognize political advertisements and access the data on them, as well as ensuring the protection of the rights to privacy, freedom of opinion and freedom of speech. The provisions of new Regulation, for the most part, will become effective in 18 months (in October 2025), but some provisions will apply to the European Parliament’s election campaign scheduled for June 2024.

One of the main reasons for the adoption of new Regulation resides in the fact that political advertising is currently regulated heterogeneously in the national legislation of EU Member States, which in many cases focuses on traditional ways of campaigning in the media and prohibits service providers established in other Member States from providing services of a political nature during electoral periods. This problem has been covered in depth by International IDEA (the full report is accessible via the link). It looks as though the problem has been resolved by new Regulation, which stipulates that “Member States should not maintain or introduce, in their national laws, provisions on the transparency of political advertising that diverge from those laid down in this Regulation, in particular more or less stringent provisions to ensure a different level of transparency in political advertising”. Lawmakers say that full harmonization of laws of different countries under the EU umbrella increases legal certainty from the perspective of companies that provide political advertising services. This is also good news for potential Ukrainian advertisers because they allegedly no longer have to account for the differences in national legislation of Member States, but instead they will follow the uniform requirements of the EU Regulations.

The second important reason for the adoption of new Regulation is the significant risk of foreign interference in European elections. In this case, members of the European Parliament are justifiably concerned about the influence exerted on voters by countries like Russia. In order to counteract foreign interference, the lawmakers developed a “common minimum standard” that obliges providers of political advertising services “in the three months preceding an election or referendum organized at Union level or at national, regional or local level in a Member State to only provide political advertising services to citizens of the Union, third-country nationals permanently residing in the Union and having a right to vote in that election or referendum or legal persons established in the Union which are not controlled by third-country entities”. The Regulation also emphasizes that the risk of interference in elections or referendums differs from one Member State to another, which is why Member States are allowed to establish stricter national rules (for example, national rules providing for longer time periods for restricting placement, promotion, publication, delivery or dissemination of advertisements sponsored by third-country entities or third-country nationals). This provision makes it practically impossible for Ukrainian advertisers to deliver or disseminate any political messages in the EU. It is also important to remember that the Regulation applies to all 27 Member States, which will hold different kinds of elections and referendums at different times. Therefore, according to the Center for Democracy and Technology, practical application of new Regulation is likely to create a situation where third-country nationals and legal entities will be banned from disseminating political advertisements most of the time.

Another reason for the adoption of new Regulation is the lack of transparency of social media and political advertising algorithms. In view of this, the new Regulation provides for publication of transparency notice containing information about the sponsors of political ads which will be made available in the European repository for online political advertisements. This will enable analyzing the online campaigning landscape. Therefore, if Ukrainian advertisers receive authorization to publish campaign materials in the European online media, it is likely that Ukrainian political advertisements will also be stored in this repository. This will undoubtedly increase the transparency of political advertising and allow Ukrainian government agencies to track political advertising expenses outside of Ukraine.

The new Regulation also prohibits the use of targeting techniques in the context of political advertising involving the processing of special categories of personal data as defined in the General Data Protection Regulation (GDPR). The GDPR differentiates between personal (the user’s IP address, phone number, e-mail, etc.) and sensitive information (the person’s racial and ethnic origin, political opinions, religious and philosophical beliefs, trade-union membership, genetic and biometric data used for identification purposes, etc.). According to article 9 of the GDPR, processing of sensitive data shall be prohibited, barring some exceptions (however, these exceptions shall not apply to personalization of advertising, including political ad settings). Both the new Regulation and GDPR impose a ban on microtargeting, that is, customization of advertisement messages in accordance with user’s personal preferences and beliefs. The collection and use of data on minors is also prohibited. Furthermore, the new Regulation stipulates that the use of targeting techniques involving the processing of personal data (other than special categories of personal data) in the context of online political advertising should only be permitted when it is based on personal data collected from the data subjects and with their explicit consent, provided separately for the purposes of political advertising. Therefore, Ukrainian politicians and parties probably won’t be able to target their political messages exclusively to citizens of Ukraine (because it is likely that this data will be considered sensitive according to the GDPR definition), while the expansion of target audience, to which the political ads are being shown, will immediately affect the cost of the advertising.

In summary, the new legislation makes it virtually impossible for third-country nationals and entities to run political advertisements in the Member States. Social media platforms will adapt their policies to these requirements so as not to incur the wrath of regulatory bodies. For example, at the end of April 2024, the EU launched an investigation against Meta for failing to counteract Russian propaganda, which is being disseminated in the Member States through the use of Meta’s political advertising tool with the aim of undermining the legitimacy of 2024 European Parliament election. It is an open question how the European community will perceive the Ukrainian candidates’ and parties’ attempts to campaign in the European Union and whether they will be treated as interference in political life of the EU.

Legislation of United Kingdom

The UK law is less strict than that of the European Union. As set out in the Non-party campaigner Code of Practice, individuals and organizations that are not based in the UK, are not on the UK electoral register, and are not registered as a non-party campaigner can run political advertisements, but their advertising budget shall be limited to £700. If such individuals or organizations spend £700 or less on regulated campaign activities, the spending and donation laws shall not apply to them. At the same time, they must provide all the information about the sponsors of a particular advertisement and the advertising client’s data. Those individuals who want to spend up to £10,000 on regulated campaign activity must be registered on the UK electoral register or be resident in the UK. Organizations are subject to similar requirements, in particular they must be registered in the UK, do business in the UK, or meet a few other requirements.

If individuals or organizations spend more than £700 on political advertising when they are not eligible, they will be guilty of an offence. The UK law creates somewhat better conditions for Ukrainian advertisers compared to the EU legislation, but still it does not provide a global solution to the problem of online campaigning targeted at Ukrainians abroad.

Social media policies

Besides Ukrainian legislation, international and country-specific regulations, online campaign activity is significantly limited by social media policies that make it virtually impossible to campaign from abroad.

Google

Google has probably one of the most arduous political advertising regulations with a strong focus on ensuring compliance with local legislation. In Google’s political content policies, it is strongly recommended that advertisers familiarize themselves with the regulations of a particular country and the “silence periods” provided for in local law prior to running a political ad in that country, otherwise, the advertisement will be rejected. Furthermore, non-compliance with Google’s policies may result in information about advertiser’s account being disclosed publicly or to relevant government agencies and regulators. In many countries that have no regulatory frameworks for political campaigning (for example, Ukraine), Google does not impose any requirements on advertisers, and they can serve political advertisements almost without restrictions. In the countries where online campaigning is regulated by local legislation, Google insists that each advertiser must be verified under the Election Ads verification or Advertiser Identity verification process. Advertisers who want to run an election ad in the UK, USA, Argentina, Australia, Chile, India, Israel, Mexico, New Zealand, and South Africa must go through verification process.

For example, an advertiser must complete the EU Election Ads verification process and obtain permission to launch election advertising campaign in the European Union. To run election ads outside the region to which the ad content pertains, an advertiser must be verified under either the Election Ads verification or Advertiser Identity verification process for the region in which the advertiser is located. For example, a UK-based advertiser must complete a UK verification process to run New Zealand election ads in any region outside New Zealand.

Political advertising on Google platforms is also subject to targeting restrictions. For example, only the following criteria may be used to target election ads: geographic location, age, gender, and contextual targeting options such as ad placement, and keywords searched by the user. All other types of targeting are not allowed for use in political advertising. Furthermore, all election ads must contain a disclosure that identifies who paid for the ad. Advertisers must also disclose when their ads contain synthetic content generated by artificial intelligence.

If an advertiser wants to run Google election ads in the European Union, it should be understood that Google defines election campaigning in a rather limited way. According to Google, election ad in the EU may refer to: a political party, an elected official or a candidate for the European Parliament or for an elective public office in EU Member State (including the office of directly elected president or member of national parliament of EU Member State), as well as political messages calling on the people to vote in referendums. At the same time, Google’s political content policy does not specify whether a third-country national or entity is allowed to run an election campaign in the EU.

To run election ads in the European Union, advertisers both inside and outside the EU must go through a verification process and confirm that they are legally permitted to run election ads in the EU. As part of this verification process, the organization (political party, association of citizens, etc.) must provide Google with information about the country where the organization is registered, organization registration number, a document confirming organization name (approved election registration for election in an EU Member State, bank, credit card, or insurance statements, confirmation certificates from official government authority, etc.). It is also necessary to provide information about official address of organization (which must be an EU address) and submit a document showing proof of address dated no more than one year old (registration documents, utility bills, credit card statements or letters, etc.). Furthermore, the organization must be organized under the laws of, or based in, one of the EU Member States, and confirm that it is legally permitted to run election ads in the EU. In addition, each organization must have an authorized representative who is a citizen of one of the EU Member States and who must provide information about his/her name, address, a copy of government-issued photo ID (a valid EU ID card, or driver’s license issued by one of the EU Member States). If a candidate or other individual wants to launch an election campaign, he/she must provide information about his/her name (which should match the name on the government-issued photo ID submitted by that individual), date of birth, confirm that he/she is a citizen of EU Member State and that he/she is legally permitted to run election ads in the EU (by uploading a copy of current passport or national ID card issued by one of the Member States), specify the country of residence, email address, physical address in the EU (and submit documents showing proof of address), etc.

Similarly, advertisers who want to launch Google election ads in the UK must complete the UK Election Ads verification process and obtain permission to run election ads in the UK – other jurisdictions will not be eligible. As in the case of the EU, Google’s political content policy defines election ads as those related to elections or referendums held in the UK only, but it does not specify whether advertisers are allowed to serve election ads targeting other countries. All other requirements for publication and dissemination of Google election ads in the UK coincide with the requirements for running election ads in the EU: an organization, its authorized representative, or any individual who wants to run political ads must confirm that they are legally permitted to run such ads, they are registered in the UK, and they have a physical address in the UK. The only difference between the EU and UK regulations is that in the latter case not only citizens, but also residents of the UK are allowed to run election ads.

Telegram, which has been the most popular social media in Ukraine for several years and enjoys the greatest popularity with Ukrainians abroad, totally forbids the publication of advertisements on political topics. According to Telegram ad policies and guidelines, “advertisements must not promote political campaigns, elections, political parties, candidates, political or religious movements”. In particular, Telegram explicitly prohibits the use of its advertising tool to campaign for or bring discredit on politicians, political parties or political movements. The ads must not refer to any current political disputes.

At the same time, other tools are still available to candidates and parties: they can create separate Telegram channels to promote themselves, pay for publication of advertisements on popular (including anonymous) channels, place targeted ads containing a link to Telegram channel on other social media, etc. Political parties and candidates are likely to make active use of the aforesaid tools to gain popularity with the electorate since this is the cheapest and easiest way to reach Ukrainians in different parts of the world.

However, it should be noted that political advertising in Telegram is the least accountable and transparent campaigning method because it is virtually impossible to track the advertising volume and expenses on this social media. Furthermore, Telegram is a common platform which is used by both Ukrainians and Russians, and there is almost no moderation of political content, so we can expect that the Russian Federation will be actively trying to interfere in the first post-war elections by way of creating Telegram channels to discredit politicians who cause inconvenience to Russia, cloning the channels of politicians and parties, promoting pro-Russian or Russian-backed candidates and parties, etc.

Viber

Unlike Telegram, Viber allows its users to run political advertisements, but they are subject to certain restrictions. In particular, “ads that promote political campaigns, political parties, candidates and political content are subject to Viber’s prior written approval and advertiser’s compliance with all applicable international and local laws, rules or regulations”. Furthermore, Viber prohibits advertisers from serving ads which contain or promote content about “controversial political or social issues”, as well as ads that involve the collection of personal information of end users, including information regarding an end user’s political views, ethnicity, documents, etc. (the exception is if Viber has previously provided written consent).

TikTok

Similarly to Telegram, TikTok prohibits its users from “posting any political content in the form of advertisements”. This prohibition applies to politicians, members of parties and other political organizations, as well as other TikTok users who want to share their political views through advertising. Among other things, TikTok prohibits the following entities and individuals from serving ads: government agencies, candidates and elected officials, official spokespersons and advisors of political parties or officials, partners of candidates or public officials, political parties, political associations, etc. TikTok’s political content policy expressly emphasizes that it is forbidden to run advertisements containing references to elections and referendums, including voter registration, voter turnout, as well as ads that encourage people to vote.

The only exception to the rule that prohibits political advertising on TikTok is when such ads are aimed at raising awareness of national security issues (for example, promotion of public health initiatives like COVID-19 booster programs). However, even in these cases, ads can be published only with the approval of and in coordination with TikTok representatives.

Х (Twitter)

In September 2023, X (Twitter) lifted the ban on publication of political ads which was imposed in 2019. At the time, the company CEO justified the ban by saying that “the reach of political messages should be earned, not bought”. In January 2023, following the acquisition of Twitter by Elon Musk in October 2022, the company announced that X users will be allowed to serve political ads, and in September 2023, the company restored access to this feature in some countries.

According to X’s current content policy, this social media platform permits the promotion of political advertising in most Latin American countries, Canada, Indonesia, Israel, Japan, South Africa, the United Kingdom, and the United States. This option is not available to users in Continental Europe, and given that European authorities doubt the effectiveness of X’s moderation policy, this situation is unlikely to change in the near future. Therefore, among the countries hosting the largest populations of Ukrainian immigrants, United Kingdom is the only one where X users are allowed to serve political ads.

Advertisers must comply with “the country-specific legal requirements, election laws and applicable electoral silence periods mandates” as provided for in the national legislation of the countries where political advertising is permitted. Subject to compliance with the above requirements, X users are allowed to run political campaigning ads that “advocate for or against, or solicit financial support for a candidate or political party”, as well as those that refer to “elections, legislation, referendums, or ballot measure process”.

Advertisers must go through a certification process and obtain approval from X prior to running political ads on this platform. X expressly states that political campaigning ads can be served in a given country only by citizens of that country or organizations registered in that country (the companies that apply for X certification are required to provide an official ID or local corporate address). Furthermore, advertisers must comply with X’s targeting policy. Only the following criteria may be used to target political campaigning ads: location, age, gender, interests and keywords searched by users, custom audiences, and follower look-alikes. X’s political ads library is also available in some countries, but, for example, it is impossible to find out details about political campaigning ads and campaign spending in the UK.

Conclusions

The next elections in Ukraine will leave a mark in history and determine the fate of our country for many years to come. They will be closely monitored by the international community. Therefore, Ukraine faces many challenges that need to be addressed now. One such challenge is to ensure that Ukrainian politicians and parties have access to transparent campaigning tools, which is a necessary component of democratic electoral process that allows political parties and candidates to communicate their views, values and priorities to voters.

As of today, Ukrainian candidates and parties have limited ability to campaign abroad due to restrictions imposed by both Ukrainian and international laws. The newly adopted EU regulations effectively isolate Ukrainian politicians from their voters in EU countries. Social media policies that either follow legislative requirements or simply prohibit political campaigning on their platforms further complicate the conduct of future elections. One more constraint is the high cost of political advertising which may exceed hundreds of dollars in some countries. As a result, the parties that live on a tight budget are deprived of the opportunity to promote themselves.

The widespread use of “shady” campaigning schemes, which are impossible to track in terms of campaign expenses and content, seems the most likely scenario under the current conditions. The parties and candidates probably will pour millions of hryvnias into campaigning on Telegram channels and social media pages of bloggers and influencers, as well as resort to coordinated inauthentic behavior and unlabeled political advertising. This will create a situation where Ukrainian regulatory bodies and specialized CSOs are unable to track political advertising expenses, while the candidates and parties evade their obligation to submit campaign expense reports.

Perhaps the only solution to this problem is to negotiate an agreement with European political campaigning regulators on joining the European online political space, so as to provide Ukrainian parties and candidates with access to “official” online campaigning tools before the start of election process, while Ukrainian government agencies and CSOs would have the opportunity to monitor campaigning activities and track campaign expenses in dozens of European countries. This is the only way to ensure transparency, accountability, and legitimacy of the upcoming election process both in Ukraine and abroad.