Consider this: you are a civil society organisation that advocates for better protection of rights. You do that by carrying out research activities, launching campaigns and petitions, or releasing public statements that propose policy initiatives. Your funding comes from individuals, business donors and diverse grant making organisations, registered both in and outside of the EU. Because you also receive funds from countries outside the EU, if the Defence of Democracy (DoD) is adopted, anything you publish might be considered as an attempt to influence public opinion, and therefore you will need to register in the “foreign interest representative” registry. This label might stigmatise your organisation. This will affect your ability to seek and receive resources, because your funders may not want negative perception. To make things worse, professional lobbyists, who actually do influence decision makers and public policy directly, may find it pretty easy to circumvent these rules to conceal the origin of their funding and go under the radar: they can easily register a company within an EU member state (e.g. in Estonia it can be done rapidly and fully online) and channel their funds through an EU company, so it will not fall under foreign interest representation anymore.
This is a likely scenario in case the European Commission is to adopt a “foreign interest representative” registry under the DoD package, with a broad and vague scope, encompassing a range of organisations, including those from civil society or academia.
Unequivocal and narrow definitions are needed as a necessary precondition for assessing the impact of policy options
Only after a strong call from civil society for a fully-fledged impact assessment, the Commission launched a consultation on different policy scenarios prior to releasing the DoD. However, it has not clearly defined the declared object of the proposed interventions – namely, what is interest representation carried out on behalf of third countries, which seek to influence policy, legal or decision-making processes in the EU. This has made it difficult to answer many questions in the consultation that ask stakeholders to provide practical examples of how these activities take place and their potential problematic impact. Considering that the proposed package will affect fundamental rights, the proposal must approach any solution with the nuance necessary to ensure that restrictions to freedoms are legitimate, proportionate, and necessary in a democratic society.
The Commission has not provided evidence of actual and concrete threats to EU democracies to underpin their proposed policy options and impact on fundamental rights in case they adopt it. It is also unclear why the proposed options have an exclusive focus on foreign influence from third countries only in order to shield “ourselves from malign interference”. “Malign interference”, which is already a dangerously overbroad definition in and of itself, may originate from activities of entities both outside and inside the EU and can take many forms. In addition, policies that replicate all or part of the “foreign influence” law models have proven harmful consequences for CSOs. We have seen this in a variety of countries globally. One of the worst problems with “foreign agent/foreign influence” laws is their flawed underlying premise that foreign funding is automatically linked to foreign interference. This is fundamentally untrue. Moreover, it leads to inevitable stigmatisation, which is especially problematic in the case of CSOs, whose good name is their key asset.
A different approach is needed
- It is important to develop a crystal-clear and narrow definition of "interest representation."
- Regulatory initiatives must be risk-based and consider specifically what impact these will have on the rights of freedom of association, expression, and participation.
- Measures must consider what is the proportionate response to that risk, including special considerations for the civil society sector.
- Transparency requirements should take into consideration the right to privacy. This is especially crucial for members of CSOs in sensitive environments, and equally so for donors who support organisations championing causes like LGBTIQ rights and anti-corruption.