FactCheck provides an assessment of the contents of the current or proposed laws/draft laws in the United States of America, Australia, New Zealand, the United Kingdom and France.
The Georgian Dream political party violated the promise to Georgian society a year prior by reintroducing the draft law on Transparency of Foreign Influence on 3 April 2024. The aforementioned draft law replicates the initial version of the law on Transparency of Foreign Influence introduced in February 2023 which was rejected after the first hearing, word-by-word, but with one modification – the term ‘foreign influence agent’ was replaced by ‘organisation pursuing the interests of a foreign power.’
The reintroduction of the draft law elicited harsh reactions from civil society, the political opposition and international partners. There was a surge in social media cards portraying the Georgian law as analogous to the European Union Directive as a response to these reactions. FactCheck has already evaluated the aforementioned false narrative and highlighted the substantial differences between the Georgian (so-called Russian) law in this article.
Another card circulating on social media, containing identical contents as the aforementioned one, led FactCheck to evaluate the accuracy of the given information. This assessment will be provided below, examining the current or proposed laws/draft laws in the USA, Australia, New Zealand, the UK and France.
In summary, the Georgian-initiated draft law differs significantly from the practices of Western countries. Similar to the current laws in Russia, the Georgian draft law declares any organisation receiving funds from abroad as a ‘pursuer of a foreign power’ (agent) whilst this approach is not present in Western and democratic practices.
Each democratic country referred to in the aforementioned social media cards has adopted different norms to address the issue. These norms may be categorised into two parts – draft laws/policies against foreign interference and influence, with varying degrees of severity, of the approach used by the individual state.
However, both of the aforementioned approaches follow one primary principle – the Western jurisdiction focuses on the activities carried out with instructions, control or tasks from a foreign power in exchange for money rather than the fact of simply receiving foreign funding. Hence, Western laws do not declare civil society organisations and media as pursuers of the interests of a foreign power but instead, determine specific activities that constitute pursuing the interests of a foreign country and then make decisions according to whether the organisation engaged in any of the specified activities.
Foreign Agents Registration Act (FARA) – United States of America
The USA is one of the countries often cited as a reference point and inspiration for the Georgian-initiated Law on Transparency of Foreign Influence, mainly in relation to the Foreign Agents Registration Act (FARA).
Despite various influential international organisations highlighting that “FARA fundamentally differs and should not be compared to such laws that were established to target NNLEs and media particularly”[1], the law initiated in Georgia is inaccurately presented as analogous of FARA in social media posts.
In reality, the Georgian draft law and FARA in the USA are fundamentally different. Hence, the omission of the aforementioned differences aims to mislead the society.
The USA proposed FARA (Foreign Agents Registration Act) in 1938 in response to foreign propaganda and political diversions, particularly from Nazi and Bolshevik USSR sources. FARA does not target partners.
The OSCE/ODIHR published a note in response to the 2023 draft law following the public defender’s request, stating: “References to the United States Foreign Agents Registration Act and the more recent Australian Foreign Influence Transparency Scheme Act adopted in 2018, which are fundamentally different in light of their very distinct purpose and scope, are not relevant comparative examples to justify the introduction of legislative initiatives targeting associations receiving funding from abroad [paragraphs 65-66]” [2].
Furthermore, the OSCE’s conclusion claims that both FARA and the Australian Foreign Influence Transparency Scheme Act “primarily focus on the regulation of lobbying” [3].
FARA aims to ensure that the United States government and the public know the source of certain information from foreign agents intended to influence American public opinion, policy and laws, according to the US Department of Justice. FARA requires the registration of, and disclosures by, an “agent of a foreign principal” (individual or legal entity) who within the United States engages in “political activities” on behalf of a foreign principal or engages in other activities as defined by the law [4].
FARA does not mandate registration solely based on the fact of the organisation receiving foreign funding. Registration is only necessary if the entity acts in accordance with direct instructions or under the control of a foreign country [5]. Contrary to the above, the Georgian draft law deems it necessary to investigate any instance of funding from a “foreign power”.
The International Centre for Not-for-Profit Law (ICNL), which works to improve the legal environment for civil society, philanthropy and public participation around the world, conducted a comparative legal analysis, concluding that:
- “Under FARA, one does not have to register simply because one receives funds from a foreign source. Rather one must be an agent of a foreign principal such as if one acts at the direction and control of a foreign government.
- Many US non-governmental organisations (NGOs) and media organisations receive foreign grants and other support but the US has not required them to register as foreign agents under FARA.
- Only about 5% of those registered under FARA are non-profit organisations. Of the small number of non-profit organisations that are registered, they are frequently overseas branches of foreign political parties.”
Furthermore, the radical differences between the American FARA and the Georgian draft law are reiterated in the statement by US Ambassador Robin Dunnigan on 10 April 2024. “The way this legislation is drafted, it is not similar to the law (FARA) in the United States. The United States welcomes the role of our civil society organisations and how they help our country. Our law specifically requires organisations and individuals who lobby, who are paid to lobby on behalf of foreign governments for foreign governments interests. It requires them to register. It is a very different law,” stated Dunnigan.
Considering all of the above, the objective of FARA is to safeguard against malign foreign influence, hence it is guided by specific activities carried out in the interests of a third state rather than solely the instances of receiving foreign funding. FARA targets not the work of civil and media organisations but the risks arising from hostile states. Despite the aforementioned, FARA has recently faced broader criticism, mainly from civil society. However, the criticism stems from the opinion that the wide and vague scope of the law threatens the reputation and work of non-commercial organisations that may have minimal or no connections with certain foreign authorities. As a result, several influential organisations addressed an open letter to the Justice Department, claiming that FARA’s overbreadth and vagueness can undermine the rights to speech and association.
FIRS – Foreign Influence Registration Scheme – United Kingdom
The implementation of the Foreign Influence Registration Scheme (FIRS) in the United Kingdom is anticipated to commence by the end of 2024 as part of the already approved National Security Act of 2023. Notably, FIRS significantly differs from the draft law initiated by the Georgian Dream.
Firstly, it is important to emphasise that when the United Kingdom established its national security legislative package, it specifically named Russia, China and Iran as primary threats. The primary underlying factor behind the introduction of the draft law on the Foreign Influence Registration Scheme stemmed from the attempts of hostile states, particularly Russia, to interfere in the internal affairs of the United Kingdom and influence its politics. The so-called Report on Russia is one of the documents prompting the drafting of this law. The aforementioned report, which took almost eight months to complete in 2020, evaluates the threats posed by Russia to the UK.
Moreover, the Report on Russia analyses various aspects, including Russia’s attempts to interfere in the internal affairs of the United Kingdom. The report underlined confirmed instances of Russia’s interference in events such as the Scottish independence referendum, the Brexit referendum, the US presidential elections, etc. The report thoroughly outlines the operations carried out by the Russian Federation to undermine Western democracy.
Despite the legitimate objectives and rationale for the registration of the draft law, its initial version faced broad criticism, resulting in significant modifications. Particularly, the scope of the law was narrowed. The aforementioned changes will substantially reduce the number of organisations potentially subject to its jurisdiction. The current version of the bill is characterised by two tiers:
1)Political Influence Tier
This tier will require registration of arrangements to carry out political influence activities in the UK at the direction of a foreign power.
Political influence activities include communications to senior decision makers such as UK ministers, election candidates, MPs and senior civil servants. It also includes certain communications to the public where the source of the influence is not already clear and disbursement of money, goods or services to UK persons for a political purpose.
To be registerable, this activity has to be for the purpose of influencing UK public life; for example, elections, decisions of the government or members of either House of Parliament or the devolved legislatures.
Domestic and international news publishers are exempt from the law.
It is important to note that FIRS focuses on the content of the activity unlike the draft law initiated by Georgian Dream. FIRS mandates that the activities aimed at implementing political influence under the direction or control of a foreign power are subject to registration with media deemed exempt from the scheme.
2)Enhanced Tier
The scheme also contains a power to specify a foreign power, part of a foreign power or an entity subject to foreign power control where the Secretary of State considers it necessary to protect the safety or interests of the UK. Use of the power will be subject to Parliamentary approval. Hence, the enhanced tier requires registration of a wider range of activities, carried out by an entity at the direction of a specified power or entity, specified as a potential risk to the safety and interests of the UK. This tier will require registration of (i) arrangements to carry out any activities within the UK at the direction of a specified power or entity and (ii) activities carried out in the UK by specified foreign power-controlled entities.
The most noteworthy aspect of the aforementioned is that the activity, subject to registration, should be implemented at the direction/order of a foreign power or an entity.
FIRS does not consider foreign funding alone as sufficient evidence to declare that the activity was carried out under the order of a foreign power according to the information provided by the UK government [6].
Therefore, FIRS will require registration of arrangements to carry out political influence activities in the UK at the direction of a foreign power. The rationale and the primary basis for registration is not the source of funding but rather the political objectives of the implemented activity, unlike the draft law initiated by Georgian Dream. Furthermore, the Registration Scheme includes numerous exemptions to ensure proportionality, such as media (on the political influence tier).
Australia
Australia has implemented the Foreign Influence Transparency Scheme (FITS) since 2018, aiming to provide information to both the public and the government regarding the nature, degree and scope of foreign influence on the Australian government and political processes. However, it is significantly different from the draft law initiated by the Georgian Dream. Hence, drawing parallels between the two would be misleading.
The Australian model of the aforementioned law aims to ensure transparency of certain activities undertaken to influence politics and implemented on behalf of foreign power (conducted under coordination with a certain foreign power or carried out under specific orders and directions).
Furthermore, it is noteworthy that discussions about foreign interference operations that had a detrimental impact on Australian politics took place prior to the registration of the law. Particularly, instances such as Chinese bribery of members of the Australian legislature to openly support Chinese policies in order to influence Australia’s China policy were brought to light. The former Prime Minister of Australia emphasised active influence operations by China before the bill was adopted. The aforementioned scheme was outlined to address certain activities that did not necessarily constitute to treason or espionage but were aimed at acting on behalf of a foreign government or foreign entity to undermine Australia’s security or national interests. The aforementioned aspects were exactly what preceded work on the scheme in Australia.
The requirement to register in the database defined by the scheme depends on the objectives and nature of the entity’s activity. Australian law encompasses activities with political content aimed at influencing policy and government decisions, including actions such as lobbying members of the Australian Parliament under directions or instructions of a foreign power to advance the interests of the foreign entity, as well as disseminating information or materials during elections to influence voter opinion.
The Australian model contains several important exceptions, such as charities and not-for-profit organisations with charitable purposes. It is worth mentioning that non-profit organisations working on areas such as human rights, national defence and security, conflict resolution, education, health and social welfare can be classified as charitable organisations, according to Australian legislation.
As mentioned above, the OSCE/ODIHR published a note in response to the 2023 draft law following the public defender’s request, stating: “References to the United States Foreign Agents Registration Act and the more recent Australian Foreign Influence Transparency Scheme Act adopted in 2018, which are fundamentally different in light of their very distinct purpose and scope, are not relevant comparative examples to justify the introduction of legislative initiatives targeting associations receiving funding from abroad [paragraphs 65-66]” [7].
Furthermore, the OSCE’s conclusion claims that both FARA and the Australian Foreign Influence Transparency Scheme Act “primarily focus on regulation of lobbying” [8].
Thus, the Australian FITS cannot be considered similar to the draft law initiated by the Georgian Dream based on the fundamental differences described above. In summary, mentioning them under the same context would be misleading.
New Zealand
In addition to the countries listed above, the social media cards include New Zealand, suggesting that the country has a law similar to the one initiated by Georgian Dream. In reality, New Zealand has not adopted specific laws entitled Foreign Influence, Agents of Foreign Influence, or Transparency of Foreign Influence. However, whilst the government of New Zealand indeed has a policy to address foreign interference, these are generally carried out at the executive level.
New Zealand’s government policy outlines foreign interference as actions that undermine the nation’s interests and are executed through covert, deceptive, corrupt or threatening methods. The government website describes various forms of foreign influence, including efforts to undermine democratic processes, cyber-attacks to acquire information, attempts to manipulate and intimidate the population, the dissemination of propaganda and disinformation, etc.
The New Zealand government, the Security Intelligence Service, the Government Communications Security Bureau and other structures work together to appropriately respond to the threats as mentioned above.
Hence, declaring the legislation of New Zealand as a reference for the draft law by Georgian Dream is misleading.
Notably, the sources disseminating the aforementioned assertions fail to provide evidence of a specific law or bill in New Zealand similar to the draft law proposed by Georgian Dream or even FARA in the United States. Instead, New Zealand has adopted a broader approach with general mechanisms to address foreign interference.
Considering all of the above, citing the New Zealand security strategy whilst discussing the Georgian Dream’s draft law is completely irrelevant and misleading.
French Draft Law
The Georgian-initiated law has been compared to the bill Against Foreign Interference in France in the aforementioned cards circulating on social media. The French draft law has already undergone discussions in the French National Assembly and whilst it passed the first reading, it must also undergo conclusions by the French Senate. However, it is crucial to note that the draft law, as initiated in the National Assembly, has already undergone over 200 modifications in the first reading alone.
The initiation of the bill was preceded by a report registered in the French National Assembly and the Senate on 29 June 2023. The report thoroughly evaluated the threats facing France and served as the foundation for the development of the Bill Against Foreign Interference. The report primarily focuses on the threats to France arising from non-democratic states, particularly from Russia. Furthermore, other non-democratic and anti-Western states outlined in the report include China, Iran, Morocco, Qatar and Turkey.
The aforementioned draft law introduces the concept of transparency of influence activities carried out on behalf of a foreign state [9]. This law mandates the creation of a digital register [10], providing French citizens with information regarding activities representing the interests of a foreign state [11]. Simultaneously, the bill constitutes measures for monitoring foreign interference or attempts to do so through an algorithmic system [12].
Instances of an entity representing the interests of a foreign state encompass the following activities conducted by a natural or legal person at the order, request, directive or under the control of a foreign power, according to paragraph nine of the first article of the draft law: 1) Influencing public decision-making through communication with certain persons, especially regarding laws or regulatory acts; 2) Conducting any form of public activity and 3) Receiving funding or providing funding.
Foreign power, as outlined in the draft law, encompasses: 1) Foreign states, excluding the European Union member states, 2) Legal entities directly or indirectly ordered or controlled by a foreign state or if more than half of their finances are provided by a foreign power and 3) Foreign political parties and groups.
The French draft law stresses not only the source of income but also the objective of said income. The draft law outlines various activities that mandate the application of the law to an organisation or an individual. These actions mainly relate to lobbying as they involve the direct control of a foreign organisation or an individual and acting according to their directives.
In summary, there are fundamental differences between the Georgian and French draft laws as the latter is based on a report naming Russia (alongside other non-democratic states [13]) and their potential threats to France; furthermore, the French law mandates regulations based on activities. In contrast, the Georgian draft law declares any organisation receiving funds from abroad as representing the interest of a foreign power.
[1]Analysis of the Georgian draft Law on Transparency of Foreign Agents by the International Centre for Not-for-Profit Law (ICNL) and the European Centre for Not-for-Profit Law.
[2] Note of the Legislative Initiatives on Transparency and Regulation of Associations Funded from Abroad of So-called Foreign Agents Laws and Similar Legislation and Their Compliance with International Human Rights Standards. Available at: https://legislationline.org/sites/default/files/2023-08/TRANSLATION%202023-07-25%20FINAL%20Note%20on%20foreign%20agents%20legislation_Georgia_GEORGIAN.pdfpg. 6
[3] The aforementioned source, pg. 41.
[4]According to the law, an “agent of a foreign principal” is any person who acts as an agent, representative, employee, or servant or otherwise acts at the order, request, or under the direction, financing, or direct/indirect control of a “foreign principal;” represents within the United States the interests of a foreign principal before US government officials or agencies.
[5]Foreign Agents Registration Act - 22 U. S. C. §611. Available at:https://www.justice.gov/nsd-fara/fara-index-and-act#611c
[6]What constitutes “direction” by a foreign power: The ordinary meaning of “direction” is an order or instruction to act. This could be delivered in the language of a request but only where there is a power relationship between the person and the foreign power which adds an element of control or expectation to the request, for example through a contract, payment, coercion or the promise of a future compensation or favourable treatment.
[7]Note of the Legislative Initiatives on Transparency and Regulation of Associations Funded from Abroad of So-called Foreign Agents Laws and Similar Legislation and Their Compliance with International Human Rights Standards. Available at: https://legislationline.org/sites/default/files/2023-08/TRANSLATION%202023-07-25%20FINAL%20Note%20on%20foreign%20agents%20legislation_Georgia_GEORGIAN.pdfpg. 6
[8]The aforementioned source, pg. 41.
[9]Transparency of influence activities carried out on behalf of a foreign principal.
[10]Un répertoire numérique- digital directory.
[11]L'action des représentants d'intérêts agissant pour le compte d'un mandant étranger- the actions of interest representatives acting on behalf of a foreign principal.
[12] The draft law amends Article 851-3 of the French Internal Security Code, expanding its extent beyond counterterrorism to include the combat against other threats posed by foreign countries.
[13] Iran, Qatar, China, Turkey, Morocco.
