What does it apply to?
Maryland enacted new legislation to address online political advertising. Maryland’s law applies to advertisements that are “qualifying paid digital communications.” (Md. Code Ann. Elec. Law § 13-405 (Maryland General Assembly through Oct. 1, 2019)).
People who purchase political advertising space on an online platform must tell the platform if their ad fits the definition of a qualifying paid digital communication. (§ 13-405(a)(1)).
What are the disclaimer requirements?
Campaign materials, including campaign materials that meet the definition of a qualifying paid digital communication, distributed by a “campaign finance entity” must state the name and address of the entity’s treasurer, and all entities that person is acting as treasurer for. (§ 13-401(a)(1)(i)). Campaign materials distributed by any other person must disclose the name and address of that person. (§ 13-401(a)(1)(ii)). If the Maryland State Board of Elections or a local board already has a distributor’s address, the address need not be disclosed on the ad itself (§ 13-401(a)(2)).
If a campaign material that supports or opposes a candidate has not been authorized by a candidate, it must also state “This message has been authorized and paid for by (name of payor or any organization affiliated with the payor), (name and title of treasurer or president). This message has not been authorized or approved by any candidate.” (§ 13-401(b)).
What responsibilities do platforms have?
Platforms that accept qualifying paid digital communications must meet record-keeping requirements. (§§ 13-405(b)(1)-(2)). These records must be publicly searchable. (§ 13-405(b)(2)). The information that platforms must keep and make public depends on who bought the ad space. (§ 13-405(b)(6)).
If the ad space was purchased by a political committee, the platform must keep records about the purchaser’s name and contact information, the committee’s treasurer, and the amount paid for the ad space. (§ 13-405(b)(6)(i)).
If the ad space was purchased by an ad network, the platform must keep records about the ad network’s contact information and include a hyperlink to the contact page of the ad network’s website. (§ 13-405(b)(6)(iii)).
If the ad space was purchased by someone other than a political committee or an ad network, the platform must keep records about the purchaser’s name and contact information, the amount paid for the ad space, and, if applicable, the identity of anyone “exercising direction or control over” the purchaser, like chief executive officer or board of directors. (§ 13-405(b)(6)(ii)).
Platforms must collect these records within 48 hours of the ad space being purchased and keep them for one year following the general election discussed in the ad . (§ 13-405(b)(3)). If the ad space has not yet been paid for, platforms can request a waiver for an additional 5 days to collect these records. (§§ 13-405(b)(5)(i)-(v)). However, a platform must explain why it cannot meet the record collecting requirements, show how it will change its practices to meet them in the future, and cannot waive out of these requirements within 30 days of an election. (§§ 13-405(b)(5)(i)-(v)).
In addition to keeping records and making them publicly available, platforms are also required to provide information about the qualifying paid digital communications they disseminate to the Maryland State Board of Elections upon the Board’s request. (§ 13-405(c)(1)). This information must also be available to the State Board within 48 hours after the ad was distributed and kept for one year following the general election discussed in the ad. (§ 13-405(c)(2)). Under this requirement, platforms must keep records about each of the following (§ 13-405(c)(3)):
- The candidate or ballot issue discussed in the ad;
- Whether the ad “supports or opposes the candidate or ballot issue”;
- The first date and time and the last date and time that the ad was disseminated;
- A digital copy of the ad;
- The geographic location where the ad was disseminated;
- The audience targeted;
- The number of impressions the ad received.
First Amendment Challenge
In December 2019, the Fourth Circuit concluded that Maryland’s requirements for platforms were an unconstitutional violation of the First Amendment as applied to a group of media plaintiffs, including The Washington Post and the Baltimore Sun, who operated platforms covered by the law. (Wash. Post. Co. v. McManus, No. 19-1132, 2-19 WL 6647336, at *1 (4th Cir. Dec. 6, 2019)). The Fourth Circuit determined that the requirements compelled the plaintiffs to engage in political speech by requiring them to create public databases with information about political ads and requiring them to provide similar information to the State Board of Elections. Id. at *4-5. Additionally, the fact that the plaintiffs here were media organizations presented an additional challenge for the law because it “‘intrud[es] into the function of editors’ and forces news publishers to speak in a away they would not otherwise.” Id. at *7.
The Fourth Circuit noted that Maryland had a compelling state interest in preventing foreign interference in state elections. Id. at 9. However, the requirements imposed by the law were not sufficiently tailored to serve those interests because Maryland had presented no evidence that the platforms operated by the plaintiffs here were targets of foreign interference. Id. at *9-11. Thus, the law could not withstand constitutional scrutiny when applied to these specific plaintiffs. Id. at *9. Ultimately, the Fourth Circuit was clear in limiting its decision to the specific parties and circumstances of this case. Id. at *3. As a result, it remains unclear whether the law’s requirements would withstand constitutional scrutiny when applied to different platforms.
Have platforms placed any restrictions on ads from this state?
Currently, Google will not accept ads about ballot measures or state or local candidates in Maryland. Visit our platform policies page for more information about platform policies related to political advertising.
Definitions for Maryland:
An advertisement must meet five requirements to be a qualifying paid digital communication. (§ 1-101(ll-1)). It must (1) be an electronic communication, (2) be a campaign material, (3) be “placed or promoted for a fee on an online platform,” (4) be distributed to at least 500 people, and (5) not “propose a commercial transaction.” (§ 1-101(ll-1)).
A campaign material is any text or graphic that discusses a candidate or ballot question and is published or distributed to the public. (§ 1-101(k)).
An online platform is any “public-facing website, web application, or digital application” that sells space for qualifying paid digital communications and, within the past year, has had at least 100,000 monthly users or visitors for most of the past year. (§ 1-101(dd-1)).
A campaign finance entity is a political committee organized under Maryland’s campaign finance laws. (§ 1-101(h)).
A political committee is two or more people whose purpose is to support or oppose a candidate, political party, or ballot question in an election. (§ 1-101(gg)).