This chapter analyses the legislative and institutional framework that could be established in France to enhance transparency and address concerns relating to foreign influence activities. It examines the essential elements of a scope of application that is appropriate and adapted to foreign influence.
Strengthening the Transparency and Integrity of Foreign Influence Activities in France
A Tool for Tackling Foreign Interference Risks
Report
OECD Public Governance Reviews
Table of contents
Share
Facebook
Twitter
LinkedIn
3. Strengthening the transparency of foreign influence in France through a dedicated scheme
Abstract
3.1. Introduction
3.1.1. Strengthening public integrity through greater transparency
One way in which countries can strengthen their resilience to foreign interference is implementing robust transparency frameworks that cover lobbying and influence activities carried out on behalf of foreign governments and other foreign entities. The experience of OECD countries in increasing the transparency of lobbying activities, whether domestic or from abroad, shows that effective regulation should provide an adequate degree of transparency on activities aimed at or likely to influence government decision-making processes (OECD, 2010[1]).
Transparency is the disclosure and subsequent availability of relevant government data and information (OECD, 2017[2]). Applied to foreign lobbying and influence activities, it is a tool that allows the public to better monitor the public decision-making process (OECD, 2021[3]). Thus, transparency obligations are not intended to restrict, deter, criminalise or punish legal foreign influence activities. On the contrary, transparency aims to highlight legal activities carried out for the benefit of foreign interests, and thus avoid any opacity or risk of interference.
But while disclosing the right amount and type of information is essential to achieving adequate levels of transparency, it is not always easy to determine what constitutes the “right” information. In order for public officials and citizens to obtain sufficient information about influence activities carried out on behalf of foreign entities, it is recommended that the information disclosed should include who is lobbying or influencing government – or public opinion – and on whose behalf, who is the target of these activities and what specific public decision or policy issue has been the subject of these activities (OECD, 2021[3]).
3.1.2. France's experience of lobbying regulation
Since the adoption of the Sapin II Act in 2016, France has had a framework for lobbying that is in line with international best practice, and which can serve as a source of inspiration for strengthening the transparency of foreign influence. Upon its adoption in 2016, this Act represented a decisive step forward, since it established a legal recognition of lobbying activities (called “interest representation” activities in France), while addressing the risks associated with lobbying by making it compulsory to register lobbying activities in a single register that is made public, administered and monitored by the HATVP.
Foreign companies that meet the criteria set out in article 18-2 of the law of 11 October 2013 on transparency in public life must therefore register in the Register of interest representatives and declare their interest representation activities and the resources allocated to conduct these activities on an annual basis, in the same way as French companies. Since October 2023 and the entry into force of the HATVP's new application guidelines, third-party countries must be disclosed as clients of consultancy firms or lawyers where applicable, following the example of what is done at the European level (European Union Transparency Register) and in Canada (Register of Lobbyists), and as specified in Section 1.5 in Chapter 1.
However, the current system has several limitations. First, the Register of interest representatives only covers a limited number of actors carrying out lobbying activities on behalf of foreign governments and state organisations. For example, the register does not make it possible to clearly identify whether the interest representation activities of a company that is directly or majority controlled by a foreign state are carried out on behalf of the company to promote its commercial interests, or on behalf of the foreign state to promote state interests. Similarly, certain entities linked to a foreign state, and which act de facto on behalf of that foreign state to carry out influence activities without there being any written agreement between the entity and the foreign state, are not covered by the scheme. Yet, foreign influence activities are often characterised by the use of proxies, although the link between the proxy and the foreign power is not always clearly publicly established. Establishing a specific scheme would therefore make it possible to include actors who have a direct link with a foreign state or who act de facto under the control or direction of a foreign state.
Second, foreign influence activities, particularly when they have a malicious intent, often have distinct objectives, particularly regarding their targets, as outlined in Chapter 1. For example, a foreign influence activity may have the objective of influencing public opinion during an electoral process by using, for example, think tanks, NGOs or disinformation campaigns. However, influencing public opinion and electoral processes are in most cases not included in the types of public decisions or democratic processes covered by lobbying regulations. This is the case, for example, with the French system regulating interest representation activities.
3.1.3. Establishing a framework dedicated to the transparency of foreign influence activities
Several countries, including the United States, Australia and, more recently, the United Kingdom, have chosen to implement a legal framework and a register of foreign influence activities separate from their existing register of lobbying activities. In the United States, for example, the register set up under the Foreign Agents Registration Act (FARA) covers influence activities carried out on behalf of a government of a foreign country, a foreign political party, foreign individuals and companies, while domestic lobbying and influence activities are covered by the Lobbying Disclosure Act. The Canadian government is also considering the adoption of a specific framework and launched a public consultation on the subject in 2023, highlighting the limitations of the current Canadian lobbying regulation (Box 3.9).
Following the example of existing frameworks in the United States and Australia, and initiatives in the United Kingdom and Canada, the French legislator could therefore adopt a framework for foreign lobbying and influence activities carried out on behalf of foreign states or state organisations. However, in order to determine whether a separate regime from the existing one for lobbying or whether an adaptation of the latter would be the most appropriate approach, it is important to look at all the functions necessary for the proper functioning of the system, in particular the compliance functions, and at the legal and institutional framework existing in France, as well as the lessons learned from the implementation of similar systems internationally.
Thus, in order to respond effectively to the risks set out in Chapter 2, increasing the transparency of foreign influence activities in France must first and foremost define a precise scope of application, i.e. the actors and activities covered (Section 3.2), the targets of influence, and the actors who must comply (Section 3.3). A second important element to consider is the disclosure regime: what information must be requested, how often, and in what format (Section 3.4). The system of sanctions, whether administrative or criminal, is another key point for an effective transparency mechanism (Section 3.5). Lastly, from an institutional point of view, it is important that the roles and responsibilities of the administrations in charge of managing the system, monitoring, investigating and enforcing sanctions are well defined within the French institutional system (Section 3.6).
3.2. Defining the foreign influence actors and activities covered by the transparency scheme
3.2.1. An adequate level of transparency of foreign influence activities should cover a wide range of foreign state interests that may benefit from them
A French system for the transparency of foreign influence and interest representation activities will have to clarify the beneficiaries on whose behalf the foreign influence activity is carried out.
The current register of interest representatives administered by the HATVP covers any legal entity (consultancies, law firms, companies, professional groups, non-governmental organisations, think tanks and research bodies) or natural person (consultants acting in an independent capacity) who takes the initiative to contact a public official in order to influence a public decision, thus covering activities to defend an economic or non-economic interest. This definition of “interest representatives” is clearly set out in the Sapin II Act.
Since its creation, the register has already covered foreign entities such as companies or foreign civil society organisations. However, transparency did not originally cover third-party legal entities employed by foreign governments or persons/organisations affiliated to foreign governments (political parties, political figures, state media). Since the publication and entry into force of the new application guidelines by the HATVP in October 2023, third-party states must be declared as clients in the register, which is a first step towards greater transparency of the beneficiaries of certain foreign influence activities (Box 3.1).
Box 3.1. The identity of third parties on whose behalf interest representation activities are carried out in the new HATVP guidelines
This applies to interest representatives who carry out this activity in whole or in part on behalf of third parties. Any legal entity other than the one carrying out the interest representation and on whose behalf it is carried out must be declared as a third party, whether or not this person fulfils the organic criterion set out in article 18-2 of the Act. This may therefore include national public administrations but also foreign public authorities when the representation of interests is carried out in relation to the national public officials referred to in the Act.
Source: (HATVP, 2023[4]).
A significant proportion of foreign influence players are therefore already covered by the register, as is the case for European institutions and Canada. Under Canada's Lobbying Act, consultant lobbyists must disclose information concerning the identity of their client (which may be a government other than the government of Canada) when, for a fee, the consultant communicates with a public office holder on a regulated lobbying measure (OECD, 2021[3]). Similarly, the European register covers interest representation activities carried out on behalf of “public authorities of third countries, including their diplomatic missions and embassies” when these authorities are represented by legal entities, offices or networks without diplomatic status or are represented by an intermediary (EUR-Lex, 2021[5]).
However, the legal framework and guidelines do not seem to sufficiently clarify whether certain entities linked to a foreign state (e.g. those controlled by a foreign state or acting de facto at the request of a foreign state, or foreign political parties or personalities), whether acting as beneficiaries or as intermediaries acting on behalf of foreign public authorities, are included in the scope of application (Box 3.2).
Box 3.2. Mapping of foreign influence actors
Foreign lobbying and influence – private commercial or non-commercial interests
If a company or entity representing private commercial or non-commercial interests in a country A influences a public decision-making process in country B, this can be considered as foreign lobbying and influence that is not related to a foreign power.
In most countries with lobbying regulations in place, lobbying by foreign commercial interest groups, foreign civil society organisations or consultant lobbyists representing foreign commercial interests or private entities is generally covered.
Foreign lobbying and influence – political and state interests
If a government or government entity of a country A influences the government of a country B through traditional diplomatic and consular channels, this is diplomacy and not lobbying. However, certain activities carried out directly by foreign governments may still involve risks of foreign interference (e.g., economic coercion, cyber-attacks, strategic investment choices). However, these actors and activities are not intended to be covered by a foreign influence transparency framework.
When the government or a government entity of country A chooses to influence the government of country B outside traditional and formal diplomatic channels and processes, the same actors/practices can be found as for the influence of private interests. This means that the foreign government influences via entities and individuals without diplomatic status who may act as “foreign agents” or interest representatives” of the country (e.g., lobbying, consultancy or law firms commissioned by foreign governments). This can be considered as foreign lobbying and influence on behalf of a foreign power. Some of these activities are legal and can be considered legitimate but must be made transparent to avoid the risk of interference.
Grey areas of foreign influence
Where private and foreign government interests are intertwined, certain activities can be seen as a grey area at the intersection of diplomatic soft power and lobbying on behalf of foreign governments. This type of influence happens when the government of a country A influences the government of a country B through entities controlled by or acting under the direction of the government of country A
These activities also carry significant risks of foreign interference, as foreign governments may use affiliations with foreign-owned or controlled entities as channels of influence, including:
Public companies/state-owned companies.
State-owned and state-funded media services.
Cultural institutes (e.g. Confucius Institutes).
Religious institutions.
Civil society organisations created or controlled by a foreign state.
These organisations may act either as “principals” (e.g., when they, as a foreign government-related entity, use intermediaries such as lobbying firms) or as intermediaries – “foreign agents” or “interest representatives” – acting on behalf of a foreign government. Their activities can alsp be considered as foreign lobbying and influence on behalf of a foreign power.
Source: Author’s elaboration
For a more comprehensive coverage of foreign beneficiaries, the French legislator could rely on the definitions in force in the United States, Australia and the United Kingdom, which use the term “foreign principal”, which can be translated into French as “mandant étranger”, “donneur d'ordre étranger” or “commettant étranger”.
In the United States, for example, the FARA term "foreign principal" includes:
A foreign government or foreign political party.
A person (individual, partnership, association, company, organisation or any other combination of individuals) outside the United States.
A partnership, association, company, organisation or any other combination of persons organised under the laws of a foreign country or having its principal place of business in a foreign country.
The second and third categories are exempt from registration requirements if the lobbying activities are carried out on their own behalf and if these entities register under the Lobbying Disclosure Act. However, the exemption does not apply to agents of foreign governments and foreign political parties (first category), or where a foreign government or foreign political party is the principal beneficiary of the lobbying activities of the actors specified in the second and third categories.
The Australian FITS covers four main categories of foreign principal, which are explained in detail in Annex B:
A foreign government, including an authority of the government or part of the government of a foreign country.
A foreign political organisation, including a foreign political party and a foreign organisation that exists primarily to pursue political objectives.
A foreign government-related entity.
A foreign-government related person, i.e. who is under an obligation (formal or informal) to act in accordance with the directives, instructions or wishes of the foreign government, the entity linked to the foreign government or the foreign political organisation.
The Canadian government's consultation paper on setting up a register dedicated to foreign influence describes a “foreign principal” as any “entity that is owned or directed, in law or in practice, by a foreign government. This could inter alia include a foreign power, foreign economic entity, foreign political organization, or an individual or group with links to a foreign government”. Finally, at the European level, the European Commission's proposal as part of the Defence of Democracy (DoD) package mentions “third country entities”, which also include public or private actors controlled directly or indirectly by foreign powers outside Europe (European Commission, 2023[6]).
3.2.2. To ensure an adequate level of transparency of foreign influence activities, the scheme should clarify what is meant by “acting on behalf of a foreign principal” and which entities or persons are likely to carry out these activities
Another crucial aspect that the French system should clarify concerns the meaning of “carrying out lobbying and influence activities, or interest representation on behalf of a foreign principal” and the entities or individuals who are likely to carry out these activities, and therefore to register in a transparency register.
The American, Australian and British systems adopt a relatively broad definition of the term “foreign agent” to designate persons who are considered to be acting on behalf of a foreign principal. The existence of a written contract between an agent and a foreign government or the payment of fees are not necessary to establish the obligation to register. In the United States, an agent facilitating the organisation of meetings with US government officials in response to a simple “request” from a foreign principal, is sufficient to trigger an obligation to register with the US FARA Registry. Similarly, providing advice to a foreign principal on how best to influence policy or public opinion may trigger the need to register.
For example, Australia's FITS requires a person or company to register if it undertakes foreign influence activities on behalf of a foreign principal or under a registrable arrangement (Australian Attorney-General's Department, 2019[7]). The term thus includes foreign influence activities that are carried out:
Under an arrangement with the foreign principal. An arrangement between the person and the foreign principal could be formal or informal, written or verbal. It could be a contract, understanding or agreement of any kind. It does not need to have been made in Australia for it to be registrable. The foreign principal does not need to pay the person to undertake the activity, or provide any other advantage to the person.
In the service of the foreign principal.
On the order or at the request of the foreign principal.
Under the direction of the foreign principal.
Regardless of the nature of the relationship between the person and the foreign principal, both the person and the foreign principal must have intended or expected that the person might or would undertake the registrable activities on behalf of the foreign principal. If a person undertakes an activity without the foreign principal’s knowledge or expectation, there is no obligation to register under the scheme. In this case, the person’s activities and the foreign principal’s interests are merely coincidental (Australian Attorney-General's Department, 2019[7]).
FARA adopts a similar approach (Annex A), while the consultation document on the introduction of a similar system in Canada also uses the term “agreement”, in line with the conditions of the Australian FITS (Public Safety Canada, 2023[8]).
This broad approach enables these schemes to cover key foreign influence actors, and in particular those in the "grey zone” of foreign influence described in Box 3.2, such as those actors who act de facto in the service or under the control of foreign powers in a concealed manner, as appears to be the case with Russian and Chinese influence operations (Charon and Jeangène Vilmer, 2021[9]). In all cases, it is paramount, in the case of a framework on foreign influence, not to limit the relationship between a “foreign principal” and the natural or legal persons who carry out influence activities on their behalf, to a financial (i.e. remunerated) or contractual relationship.
It should also be noted that in both the American and Australian schemes, the fact of receiving funding from a foreign government or foreign political organisation is not a sufficient criterion to be considered a “foreign agent” or an entity acting on behalf of a “foreign principal”. If the funding is the only link between the entity and the foreign government or political organisation, the entity will not be considered a “foreign agent”. This clarification is important, as it has recently been a source of confusion and numerous misinterpretations in the public debate, particularly in the context of discussions on the European DoD package. The crucial element here is the notion of “arrangement” or “service” (“agency relation” in the case of FARA) which links a foreign principal on the one hand, and a natural or legal person carrying out influence activities on its behalf on the other. This also makes it possible to distinguish these systems from those in force in authoritarian contexts where the simple fact of receiving funding from abroad can lead to the classification of an entity as a foreign agent, with often serious consequences for these entities and their agents.
In order to avoid any loopholes, a French foreign influence transparency regime could adopt a similar approach of broadly defining the scope of the transparency register. It is important to note, however, that such approaches have also been challenging in the United States and Australia, as they make the scope broad and the relationship between foreign principal and agent difficult to establish and prove in cases where an entity is acting on the mere “request” of the foreign principal. In particular, they require the allocation of relatively broad investigative resources, so that the authorities responsible for implementing the scheme can detect the existence of an informal agreement between a principal and a foreign agent. This aspect is discussed in more detail in Section 3.6.
3.2.3. The foreign influence activities covered by the scheme should take into account not only influence on decision-making processes, but also on public debate
Once the relationship between a foreign principal and a foreign agent has been established, a foreign influence transparency register requires a clear list of specific activities that trigger the registration requirement. As mentioned in Chapter 2, an increasing proportion of foreign influence activities are not aimed at directly influencing public officials, but rather at influencing public opinion so that it can influence the course of public decisions.
In this sense, the current definition of an interest representation activity in France seems too restrictive for a system regulating foreign influence, as it is limited to entering into communication with a public official with the aim of influencing a public decision. The French legislature has chosen to limit interest representation to direct lobbying, explicitly excluding influence on public opinion (Box 3.3). In the context of a framework for foreign influence, such a definition would therefore not cover a significant range of influence activities, which would constitute an obstacle to adequate transparency of foreign influence activities, a significant proportion of which would remain outside the scope of transparency obligations.
To ensure an adequate level of transparency of foreign influence activities, indirect influence activities, sometimes referred to as “grassroots communications”, must be taken into account. The scope of the provisions on foreign influence should therefore be extended to cover not only the “classic” interest representation activities of entering into communication with a public official, but also broader influence activities and in particular influence exercised via intermediaries such as think tanks or other civil society organisations.
This may also enable the system to contribute to France's strategic objectives in the fight against foreign interference and the protection of the nation's fundamental interests by, for example, acting as a potential source for detecting cases of information manipulation operations of foreign origin, whether carried out through local or community media, the mainstream media or social networks. The systems in place in the United States, Australia and the United Kingdom cover this type of activity (for a detailed description of the activities and their definitions, see Annexes A, B and C). The Directive proposed as part of the European DoD also includes these activities (Annex D).
Box 3.3. The activities that come under interest representation in the current system are not sufficiently adapted to foreign influence
Under the current rules governing interest representation activities, several types of activities are considered to be communications likely to constitute interest representation:
A physical meeting, regardless of the context in which it takes place (dedicated meeting, business lunch, trade show visit, club meeting, etc.).
A conversation by telephone, videoconference or electronic communication service.
Sending a letter, e-mail or private message via an electronic communication service.
Directly questioning a public official by name on a social network.
However, the following are excluded:
Public awareness campaigns or street demonstrations.
Monitoring legislative and regulatory developments.
Preparing notes, briefs and talking points in advance of a presentation.
Newsletters, as long as they do not concern a public decision and are not specifically addressed to public officials.
Source: HATVP (2024[10]), “Représentation d'intérêts”, https://www.hatvp.fr/espacedeclarant/representation-dinterets/ressources/#post_14593.
In the United States, for example, activities considered to be foreign influence activities include “political activities”, i.e. “any activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies or relations of a government of a foreign country or of a foreign political party”. This definition therefore also includes activities that seek to promote a positive image of a foreign government within American society. Other types of activities covered, such as acting as a publicity agent, an information-service employee or a public relations counsel, also expressly cover perception management.
As in the United States, the Australian system covers both direct influence activities, such as lobbying members of Parliament, and activities undertaken with the aim of influencing public debate, such as the promotion of information or material intended to influence the public vote in a federal election. The Australian FITS adopts a precise and clear classification of influence activities, that could serve as an inspiration for the French legislator (Table 3.1).
Table 3.1. Foreign influencing activities covered by the Australian FITS
|
Category of activity |
Type of activity |
|---|---|
|
Lobbying includes communicating with the intent to influence processes, decisions or outcomes and representing the interests of another person in any process. Lobbying activities are deemed to be for the purpose of exerting political or governmental influence if they are undertaken for the primary or substantial purpose of influencing:
Parliamentary lobbying on behalf of a foreign government is registrable regardless of whether it is undertaken for a political/governmental purpose. Otherwise, parliamentary lobbying on behalf of other foreign principal types is registrable only if the purpose is for political or governmental influence. |
|
Communication activities |
Communications activity covers all circumstances in which information or material are disseminated, published, disbursed, shared or made available to the public. Information and material can be in any form including interpersonal, visual, graphic, written, electronic, digital and pictorial forms A communications activity must be registered if it is undertaken for the purposes of political or governmental influence. Such activities can influence the views and opinions of those involved in political and governmental processes. |
|
Disbursement activities |
Disbursement activity includes the distribution of money or things of value on behalf of a foreign principal. This activity must be registered if the person, or the recipient of the disbursement, is not required to disclose the activity (for example under political party finance disclosure laws) and the activity is undertaken for the purposes of political or government influence. |
The scope of application of the French system could also be based on the Canadian Registry of Lobbyists and the Transparency Register of the European Union (EU) institutions, which have each adopted a definition that is admittedly more restrictive, but which goes beyond mere oral or written communication between an interest representative and a public official:
At EU level, the activities covered include: “organising communication campaigns, platforms, networks and grassroots initiatives” as well as “preparing or commissioning policy and position papers, amendments, opinion polls and surveys, open letters and other communication or information material, and commissioning and carrying out research” (EUR-Lex, 2021[5]).
In Canada, in addition to oral and written communications, the Lobbying Act covers “grassroots communications”, defined as “any appeals to members of the public through the mass media or by direct communication that seek to persuade those members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion” (Box 3.4).
These two registers do not include extensive reporting obligations for this type of activity, i.e. detailed information on all communication campaigns carried out as part of influencing activities in support of a specific objective. However, the inclusion of this type of activity in the scope of application has enabled a first step towards greater transparency on indirect influence. For example, the European Transparency Register includes a specific section devoted to lobbying activities, including the main EU legislative proposals concerned and “communication activities (events, campaigns, publications, etc.) linked to the aforementioned proposals”.
Box 3.4. Interpretation Bulletin of the Office of the Commissioner of Lobbying of Canada on the applicability of the Lobbying Act to grassroots communication
In its August 2017 Interpretation Bulletin, the Office of the Commissioner of Lobbying Canada clarified the means used for the purpose of conducting grassroots communications, which may include direct mail and electronic communication campaigns, advertisements, websites, social media posts and platforms such as Facebook, Twitter, LinkedIn, Snapchat, YouTube, etc.
The Office of the Commissioner also indicated that participation in the strategic and operational activities of a grassroots communication (approving elements, providing advice, conducting research and analysis, drafting messages, preparing content, disseminating content, interacting with members of the public) also requires registration.
Source: Office of the Commissioner of Lobbying of Canada (2017[12]), “Applicability of the Lobbying Act to Grass-roots Communications”, https://lobbycanada.gc.ca/en/rules/the-lobbying-act/advice-and-interpretation-lobbying-act/applicability-of-the-lobbying-act-to-grass-roots-communications/.
If this recommendation (a scheme covering a broader range of lobbying and influence activities than the current system regulating interest representation activities) were to be favoured by the French legislature, a term other than “representation of interests” could be used for the specific scheme on foreign influence. The HATVP pointed out that using the same term for two different registers could lead to confusion, insofar as the activities covered would not be exactly the same in the two registers. On the other hand, the term “representation of interests” could be used if the two systems were to be aligned.
3.2.4. In order to guarantee fundamental freedoms and fluid state-to-state relations, France's scheme on the transparency of foreign influence activities may include a list of legitimate exemptions
As with certain legitimate exemptions included in existing lobbying frameworks in OECD countries, the definitions of activities covered by a foreign influence framework should clearly specify the type of communications that are not covered by the framework. This applies, for example, to communications that have already been made public, including formal submissions to parliamentary committees, public hearings and established consultation mechanisms (OECD, 2010[1]).
More specifically, the definitions must clearly specify the type of activities which are not considered to be foreign influence activities requiring transparency (exclusion), or which could benefit from a legitimate exemption. In terms of exclusions, it is essential in a scheme covering foreign influence activities to exclude diplomatic, consular and similar activities when these activities are carried out by a diplomatic or consular agent. These are classic diplomatic activities, legitimate and essential to international relations. Similarly, it is appropriate to exclude employees of a foreign government from the scheme, given the need for international co-operation in many areas of public policy in a globalised world. Legal advice activities and legal representation (i.e. where the activity in question is principally related to the provision of legal advice in, or arising out of, judicial processes) may also be legitimately excluded.
With regard to exemptions, a balance must be struck to ensure that the list of exemptions is not used by foreign powers to try to secretly influence the decision-making process and thus avoid the obligation to register.
The Australian and American schemes offer a detailed list of exemptions, which, however, according to the authorities responsible for administering FARA and FITS, may be too broad (for an exhaustive description of the exemptions, please refer to the annexes). In the United States, for example, FARA’s transparency goals could be inhibited by certain exemptions relating to private and non-political activities, as well as academic activities, which may be exploited to avoid FARA’s disclosure requirements.
In France, the work of the National Assembly's Commission of Inquiry into Foreign Interference addressed the case of religious associations, which are currently excluded from the scope of the framework regulating interest representation activities. However, several officials interviewed by this commission reported progress in this area, particularly since the implementation of the law of 24 August 2021 reinforcing respect for the principles of the Republic. The OECD's discussions with Tracfin for the purpose of this report confirmed that the law has achieved positive results, with a sharp reduction in the funding from abroad received by religious associations . However, as the criterion of funding is not always the most relevant for characterising the link between a principal and a foreign agent, as explained above (Section 3.2.3), it seems desirable not to exclude religious organisations from the scope of application of a system for regulating foreign influence.
3.3. Defining the targets of foreign influence activities in the scheme
3.3.1. The public officials and entities likely to be targeted by foreign influence activities must be clearly specified and could include political parties and candidates in elections
In France, the definition of “interest representation” already covers activities carried out with ministries, parliament and national and decentralised administrations. Since 2022, the scope of public decision-makers likely to be targeted by lobbying activities has thus included around 18 000 public officials, making the French lobbying regulation one of the most extensive in the world. France is also one of seven OECD countries whose national legal framework also cover lobbying activities carried out at local level (with Austria, Chile, Ireland, Lithuania, Peru, Slovenia) (OECD, 2021[3]).
To make it easier for interest representatives to take on board the extension of the register, which has been in operation since 1 July 2022, the High Authority has published on its website a vade-mecum on identifying the new public officials with whom a communication could be considered as an interest representation activity (HATVP, 2022[13]).
As the list of public officials in respect of whom a communication may constitute an action of interest representation is sufficiently broad, a scheme on foreign influence could be based on this existing scope, which would guarantee a certain coherence between the two instruments.
However, it is important in the context of a system on foreign influence to also include candidates for elections and/or political parties, in order to take proper account of the risk of electoral interference in particular. These officials are included in the most recent regimes in this area:
In the United Kingdom, the Foreign Influence Registration Scheme covers senior decision-makers such as UK ministers (and ministers in the devolved administrations), electoral candidates, MPs and senior civil servants.
In Australia, the Foreign Influence Transparency Scheme covers lobbying activities directed at registered political parties or candidates in federal elections under the “political lobbying” category.
3.3.2. The public decisions and democratic processes targeted could be extended to include foreign policy positions and electoral processes
To complete the scope of application of a foreign influence framework, it is necessary to specify which public decisions or democratic processes are likely to be targeted by a foreign influence activity. As in the case of the scope of persons targeted, existing foreign influence schemes generally go further than “traditional” lobbying or interest representation frameworks, by including, for example, influence on electoral processes (Australia, United States, United Kingdom), but also influence activities that seek to give a positive image of the foreign principal, without specific reference to a public decision (see Section 3.3.3 below).
In France, as specified in an annex to the decree of 9 May 2017, the type of public decisions that must be mentioned by interest representatives in their registrations concern laws or regulatory acts whose content they seek to influence. In addition to laws and regulations, this also includes all administrative decisions, whether general and impersonal decisions or individual decisions (LégiFrance, 2017[14]). An interest representation activity may relate to the amendment or abolition of a decision in force, as well as to the preparation of a future decision under discussion or adoption, or to the adoption of a new decision, even when the latter is not clearly identified or identifiable (for example, the regulation of a sector).
This list appears to be both too imprecise and too broad, making the system particularly complex. This creates methodological confusion and major difficulties in determining which decisions are actually covered by the regulation. In its 2022 activity report, the HATVP emphasised that this difficulty in identifying the public decisions concerned can be a source of legal uncertainty for the interest representatives concerned, and has been exacerbated by the extension of the register to local and regional authorities. (HATVP, 2023[15]). The HATVP has therefore recommended on several occasions that the scope of application be restricted by specifying in the texts the criteria for public decisions falling within the scope of the regulations on the representation of interests, according to their importance, nature or effects. In addition, a flash report by the National Assembly “on the drafting of Decree No. 2017-867 of 9 May 2017 on the digital register of interest representatives” also confirmed the “vagueness surrounding the public decisions that fall within the scope of the system and those that are excluded, due to the general and broad wording of the law” (French National Assembly, 2023[16]). In order to avoid this type of challenge, a scheme dedicated to foreign influence should therefore provide for a more precise list.
With regard to the public decisions and democratic processes covered by a framework for foreign influence, a precise list could be drawn up in consultation with the authorities mentioned in Table 2.1, particularly the SGDSN. The development of a risk-based analysis could identify the type of public decisions likely to be the target of foreign interference attempts and the impact that non-transparent foreign influence on these decisions could have on the fundamental interests of the Nation. The act of influencing the public within the framework of the decisions and procedures defined should then also be covered by the system.
Given the broad scope of activities covered by the proposed system, consideration should be given to defining the scope of public decisions concerned in a relatively broad manner, along the lines of the systems in force in Australia, the United Kingdom and the United States (Table 3.2). With regard specifically to influence on electoral processes, specific consideration could be given both to the experience of other OECD countries, but also taking into account the risk of creating a legal loophole in the fairness of elections and consequently a risk of invalidating the results. In Australia, for example, the expression “political or government influence” has a broad definition. It can encompass influence over any person, entity, structure or process that forms part of Australia's federal political and governmental architecture - including a federal election or vote, a decision of the federal government, a proceeding of either house of Parliament, a registered political party, an independent member of Parliament or an independent candidate in a federal election (Table 3.2).
Table 3.2. Public decisions covered in the United States, United Kingdom and Australia
|
Law |
Public decisions covered |
|
|---|---|---|
|
Australia |
Foreign Influence Transparency Scheme |
Influencing the public or a section of the public in relation to these processes and procedures is also covered by the law. |
|
United Kingdom |
Foreign Influence Registration Scheme |
|
|
United States |
Foreign Agents Registration Act |
|
Source: Author’s elaboration.
The obligation to declare in a specific transparency register would therefore concern any natural or legal person who conducts an activity with the aim of influencing defined public decision-making processes or electoral processes - including by influencing public opinion regarding these processes - on behalf of, under the direction of or under the control of a foreign principal.
3.3.3. Influence activities involving the promotion of the image, policies or relations of a foreign principal could also be included in the scheme
A large part of foreign influence activities consists of promoting a positive image of the foreign principal within the target society and among public officials in the target country, so that public opinion or the opinion of the target public officials are aligned with the interests or vision defended by the foreign principal.
In the United States FARA is unique in that it covers not only actions to influence US domestic or foreign policy, but also influence in relation to the political or public interests, public policies or relations of a government of a foreign country or a foreign political party. For example, influence activities that are not necessarily intended to directly influence a public decision, but are intended to influence the opinion of a public official or the general public in favour of that of the foreign power, its public policies or foreign policy are also covered. FARA also covers individuals acting in perception-management roles: publicity agents, public-relations counsels or information-service employees.
The example presented in Box 3.5, taken from information registered as part of FARA, is a good illustration of this type of activity and the value of including it in a framework on foreign influence: the individuals targeted and the public can thus be fully aware of who is influencing them.
Box 3.5. Promoting a positive image of a foreign country: A widespread activity without specific reference to a public decision or democratic process
During the COVID-19 crisis, the US Consulate General of an OECD country hired a lobbying firm to study how the US media portrayed the country's response to COVID-19. The contracts included a comprehensive public relations strategy based on the following activities to create a positive image of the country's response to the COVID-19 crisis in the early months of the pandemic:
Schedule one meeting a month with journalists and the consulate.
Writing briefing notes for meetings with influencers and stakeholders.
Providing advice on the placement of opinion pieces and letters to the editor (including editorial advice, research to determine strategic placement and direct communication with appropriate editors/news outlets).
Develop and implement a sponsored content partnership with a US-based media outlet.
Source: FARA.
3.4. Defining transparency requirements for foreign influence activities
3.4.1. The legal framework could specify that registration within a reasonable registration period should be a prerequisite for any foreign influence activity for a specific foreign principal
As with a “traditional” register of interest representatives, mandatory registration could be a prerequisite for conducting foreign influence activities, with minimum time limits for entry in the register. At present, entry in the register of interest representatives is mandatory within two months of the day on which the conditions laid down by law for qualifying as an interest representative are met (i.e. 10 communications per year assessed at the level of an entity's natural persons). While such a system allows greater flexibility for those with transparency obligations, specific attention must also be taken to ensure that the registration deadline does not become an obstacle to the objective of transparency and rapid access to information on influence, or a source of confusion for certain public officials who may wish to check the registration of a person before entering into communication with him or her.
In the case of a specific scheme for foreign influence, the legal framework could impose a shorter registration period, without a threshold criterion, derived from good practice in other jurisdictions. In the United States, for example, a foreign agent must register with the Department of Justice within 10 days of agreeing to act as agent for a foreign principal.
3.4.2. Reporting requirements should include accurate and regular information that highlights the key objectives of the activities
At present, the information to be disclosed on initial registration in the Register of interest representatives includes: (i) the identity of the interest representative and its directors; (ii) the identity of the persons responsible for the interest representation activities; (iii) the areas in which the interest representative is involved; (iv) the organisations of which the interest representative is a member.
Once a year, and pursuant to the 2017 decree on the digital register of interest representatives, the latter are required to send the High Authority details of the activities carried out over the year within three months of the close of their financial year. This information includes:
All the interest representation activities carried out during the last financial year, including the types of public decisions covered by the activities, the type of activities undertaken, the area of intervention and the objective pursued by these activities.
The identity of the clients for whom the activities were carried out.
Expenditures for interest representation.
The total number of full-time equivalent employees (FTE) of natural persons having carried out interest representation activities within the legal entity.
In the case of entities which invoice interest representation services on behalf of their clients, the turnover linked to the interest representation activity.
However, the information to be declared does not fully meet the objectives set by the law (to trace the decision-making footprint of the law, i.e. the information enabling citizens to know which actors were involved in a specific public decision and the impact of their influence) because it remains too vague. For example, the declaration must indicate the type of public decision in question (e.g. whether it is a law or a regulation), but not its exact title. It is therefore impossible to know precisely which decision was the subject of the lobbying activity. Similarly, the annual frequency of activity reports results in a delay in the publication of certain information on interest representation activities: an activity carried out at the beginning of the reporting period will not be made public until a year later.
The HATVP has regularly highlighted these points in its activity reports. In December 2022, the Senate's Parliamentary Ethics Committee also recommended that the information in the activity reports be clarified by indicating the decision targeted by the interest representation activity as well as its objective, and that the reporting frequency be changed from annual to twice a year. This would bring the French system in line with international best practices.
These two key changes appear to be necessary for a framework governing foreign influence, along the lines of the approaches chosen in the United States and Australia with regard to the information to be declared and the frequency of disclosures (Table 3.3). In these two systems, most of the disclosures are made at the time of initial registration, when registrants are required to provide specific information about their relationship with the foreign principal, as well as the objectives of their activities. The information is then regularly updated.
A similar approach could be adopted in France. The information to be disclosed during the registration process could include the personal details of the person or entity carrying out the activities, the nature of the relationship between the person/entity and the foreign principal, the precise objectives of the activities carried out and specified by the principal, and the types of activities carried out or intended to be carried out by the registrant. During regular updates, for example every six months, registrants could provide details of the activities actually carried out during the period. For example, this could involve disclosing information about a specific communication campaign that was carried out over the last six months or information about activities that related to a specific public decision.
Table 3.3. Frequency of declarations in Australia and the United States
|
Australia |
United States |
||
|---|---|---|---|
|
Registration and content of declarations |
Initial registration |
1. Details of the activities covered by the scheme (including types of activities, dates of activities, details of the purpose of the activity). 2. Information describing the nature of the relationship with the foreign principal. However, the information made public does not include commercially sensitive information or information relating to confidential government consultation on proposed policy changes or affecting national security. |
Each registrant must complete several forms:
|
|
Regular disclosures |
Registrants are required to annually review their registration if they remain liable to register. Registrants are required to report any changes and update their information to ensure that it is not misleading or inaccurate. Where a registrant becomes aware that the information provided is or will become inaccurate or misleading, they are required to correct this information within 14 days. Registrants are also required to report the total value of disbursements disbursed in the course of undertaking a disbursement activity, where the total value meets electoral donations thresholds or a multiple of that threshold. Specific obligations apply during voting periods (including election periods): 1. Check the registration details and confirm that they are correct or update the details. 2. Report any recordable activity undertaken during voting periods (if related to the vote or election concerned). |
Registrants must file supplementary declarations every six months after the date of their initial registration. This supplementary declaration updates all the elements and activities of the registration declaration, including each contact with the press or the government established on behalf of a foreign principal. |
Source: (OECD, 2021[3])
Whilst the UK register is not yet in force, the documents available highlight that the information published will include the name of the registrant, the name of the foreign power for which the activities are being carried out, the start and end dates of the activities, the contact details of the persons who will be carrying out the activities and details of the nature, purpose and intended results of the activities (UK Parliament, 2023[17]).
In the case of communications aimed at the general public and not specifically targeting a public official or a given public decision, the information to be declared could be based on the Australian example, presented below (Box 3.6).
Box 3.6. Disclosure statement for the Australian Foreign Influence Transparency Scheme
Details of the disclosure requirements for different types of communication activities, including where and when disclosure must take place, and in what form, are prescribed by the Foreign Influence Transparency Scheme (Disclosure in Communication Activities) Rules 2018.
These details depend on the type of communications activity undertaken, for example whether it involves print or audio communications.
However, the content of the disclosure is the same regardless of the type of communication activity. Disclosure must:
Identify who is undertaking the communications activity (usually the person who is required to be registered under the scheme).
Identify the foreign principal on whose behalf the communications activity is undertaken (for example, the relevant foreign government, entity or person).
State that the communications activity is undertaken on behalf of the foreign principal.
State that the disclosure is made under the Act.
The factsheets give the following example of disclosure: "this document is disclosed by [name of person] on behalf of [name of foreign principal]. This disclosure is made under the Foreign Influence Transparency Scheme Act 2018".
Source: Australian Attorney-General's Department (2019[18]), Foreign Influence Transparency Scheme Factsheet 10: Disclosures in communications activity, https://www.ag.gov.au/sites/default/files/2020-03/disclosures-in-communications-activities.pdf
3.4.3. The disclosure system could include differentiated obligations for a list of foreign principals/foreign powers whose activities have been determined to pose a risk to the Nation's interests
While registers of interest representatives ensure that all those subject to reporting obligations are placed on an equal footing (which is the case for all existing lobbying registers, as well as the US FARA and Australian FITS), it may be useful in the case of foreign influence activities to require additional information from certain foreign principals whose activities carry a significant risk of foreign interference and harm to the fundamental interests of the nation. Where certain foreign powers or other foreign principals are specifically identified as sources of particularly harmful interference, a strengthened mechanism could apply. This could apply, for example, to entities whose digital information interference activities have been identified by the VIGINUM agency. This list could be determined by decree, along the lines of the system currently being set up in the United Kingdom with the Foreign Influence Registration Scheme, which includes two tiers, including a reinforced tier applying to specific foreign powers or entities (Box 3.7). Establishing such a regime would therefore differentiate between foreign states. However, such a provision could also serve as a deterrent mechanism without necessarily being activated.
Box 3.7. The two-tier reporting regime of the Foreign Influence Registration Scheme in the United Kingdom
Political influence tier
This tier will require registration of arrangements to carry out political influence activities in the United Kingdom at the direction of a foreign power.
These arrangements will need to be registered within 28 days of being made with the foreign power.
Political influence activities include communications to senior decision makers such as UK ministers (and ministers of the devolved administrations), 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.
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 United Kingdom. Use of the power will be subject to Parliamentary approval.
This tier will require the registration of:
Arrangements to carry out any activities within the United Kingdom at the direction of a specified power or entity: the person making the arrangement with the specified body will be responsible for registration.
Activities carried out in the United Kingdom by specified foreign power-controlled entities. In these circumstances, the specified entity (not a foreign power) will be responsible for registration
Where appropriate, the government may narrow the activities requiring registration under this tier. This will allow the requirements to be tailored to the risk posed by the foreign power or entity being specified.
Source: UK Government (2024[19]), “Foreign Influence Registration Scheme factsheet”, Updated 12 February 2024, https://www.gov.uk/government/publications/national-security-bill-factsheets/foreign-influence-registration-scheme-factsheet.
3.5. Ensuring compliance with transparency obligations
3.5.1. The system could describe a specific list of breaches of the transparency obligations relating to foreign influence
As with a framework for interest representation activities, a framework for foreign influence activities should specify the types of offences committed and which could give rise to sanctions. On the basis of international best practices (FARA, FITS, FIRS), sanctions could cover the following offences:
Conducting registrable foreign influence activities without registering.
Failure to comply with statutory reporting obligations (i.e. reporting and disclosure obligations).
Giving false or misleading information or presenting false or misleading documents when filing a return.
Inciting, on behalf of a foreign principal, individuals or entities to engage in activities that would, if carried out, be notifiable activities, without informing them of the transparency obligation.
Destroying documents that are relevant to the foreign influence activity.
The offences under the Foreign Influence Transparency Scheme are specified in (Box 3.8).
Box 3.8. Foreign Influence Transparency Scheme offences in Australia
The Foreign Influence Transparency Scheme Act 2018 sets out offences for non-compliance. These include:
Undertaking registrable activities while not being registered under the scheme.
Failure to fulfil responsibilities (e.g. reporting and disclosure obligations) under the scheme.
Failure to comply with an information gathering notice issued under sections 45 or 46 of the Act.
Providing false or misleading information or documents in response to an information gathering notice issued under section 45 or 46 of the FITS Act.
Destroying scheme records which registrants are required to keep under the Act.
Source: Australian Attorney General’s Department (2019[20]), Foreign Influence Transparency Scheme Factsheet 17: Penalties for non-compliance, https://www.ag.gov.au/sites/default/files/2020-03/penalties-for-non-compliance-enforcement.pdf.
3.5.2. The scheme could provide for prior notifications to facilitate compliance
To ensure compliance, administrative enforcement mechanisms can be designed with a progressive tiered approach. At the first stage, the institution responsible for enforcing the system could issue a “notification” to a potential registrant who is not registered or who fails to comply with the registration obligations, before issuing a formal notice - made public - to comply with its registration obligations. These incentive mechanisms already exist as part of the current framework for interest representation activities: the HATVP has the power to issue warnings and formal notices in the event of breaches of reporting obligations.
A similar system is in place in the United States and Australia. In the United States, for example, the FARA unit may send a "letter of inquiry" to an entity or person where the Department of Justice obtains credible indications that a registration requirement may exist. The letter will inform the entity or person of the potential registration requirement and may request additional information to inform the opinion as to whether registration is required. In Australia, section 45 of the Foreign Influence Transparency Scheme Rules 2018 includes a similar system to the US letters of inquiry, referred to as “information gathering notices”. Concretely, section 45 allows the Secretary of the Attorney-General's Department to request a person to provide information/documents if the Secretary reasonably suspects that the person might be liable to register under the scheme. However, the Secretary currently does not have a power to compel registration if a person if found liable to register (in this case, the only option is to refer for criminal investigation).
In the event of non-compliance with the obligations and despite dialogue with the registrant and a formal notice, the next stages would consist of the application of a graduated system of sanctions, starting with the application of administrative penalties (Section 3.5.3).
3.5.3. The scheme could provide for a graduated system of sanctions ranging from administrative fines to criminal sanctions
As with the lobbying framework, a system of sanctions is essential to the effectiveness of the system. Administrative and/or criminal sanctions must therefore be part of the system for implementing and enforcing the rules, with the primary aim of deterring undeclared lobbying activities, followed by sanctions as a last resort in the event of breaches of transparency obligations.
The HATVP's experience of applying sanctions in the current framework regulating interest activities shows that a graduated system of sanctions is preferable. To ensure compliance with the system, administrative financial penalties could therefore be imposed, and criminal penalties could then be considered, along the lines of the penalties provided for in Article 8 of Decree 2017-867 in the event of a breach of the interest representative's reporting obligations. The American, Australian and British systems all provide for graduated administrative and criminal penalties. In the United States, the application of criminal sanctions has had a deterrent effect. The number of FARA registrations increased dramatically beginning in 2017 after high-profile criminal charges under FARA became public. In contrast, the European Commission's proposal as part of its DoD package only provides at this stage for administrative penalties of a pecuniary nature and limited to EUR 1 000 for natural persons and 1% of the annual worldwide turnover in the preceding financial year for legal undertakings.
Failure to comply with an obligation following formal notice from the HATVP could be considered a criminal offence, as could the provision of information that is deliberately false and misleading, or the destruction of documents relating to the activities covered and likely to be useful in an investigation. Administrative sanctions could be applied for minor offences, such as a delay in registering and/or updating information on the register, or a failure to comply with the ethical obligations applying to actors carrying out influence activities.
3.6. Defining the institutional framework for administering, monitoring, investigating and imposing penalties
3.6.1. The French legislator could consider several scenarios in which the HATVP is entrusted with all or part of the implementation of the foreign influence scheme
One of the powers essential to the proper application of the system is the ability to compel any person or entity - including foreign entities - to produce any information or documentation where there are reasonable grounds for suspecting an obligation to register.
The interviews conducted for this report raised major implementation challenges, given the national security dimension of foreign influence and the investigative resources and means required to apply the scheme, particularly to detect potential unregistered actors or undeclared activities. These interviews led to the emergence of several possible scenarios for the institutional organisation of the scheme, presented below.
Scenario 1 - A separate foreign influence register administered by the HATVP
Setting up a new register dedicated to foreign influence administered by the HATVP alongside the register of interest representatives for which it is already responsible is the first scenario considered. This is the option favoured in the bill tabled in the National Assembly in February 2024 (French National Assembly, 2024[21]) as well as in the latest annual report of the Parliamentary Delegation for Intelligence (French Parliamentary Delegation for Intelligence, 2023[22]). According to this report, published in 2023, the current system for regulating the representation of interests appears to be inadequate, since it was designed primarily to target economic lobbying activities and is insufficiently adapted to the specific characteristics of foreign lobbying and influence. The adoption of an ad hoc transparency regime, specific to foreign influence, would have the merit, according to the report:
Making a clear distinction between economic lobbying and foreign influence.
Catching a larger number of actors in the scope of the new register than those who fall within the scope of the current register under the Sapin II Act.
Sending a strong political signal in a geopolitical context marked by the resurgence of foreign interference.
As with the system for interest representatives, the report recommends entrusting the management of this register to the HATVP, which already has expertise and dedicated resources, as well as more than seven years' experience in the administration of a register of interest representation activities, particularly with regard to the interpretation of the legal framework, the production of guidelines, exchanges with registrants and the implementation of monitoring procedures. This expertise is all the more necessary as some players likely to be registered in the new system may have obligations to declare in both registers (for example, consultancy firms). The administration of the two registers by the HATVP would thus make it possible to ensure complementarity between the two registers as well as a certain consistency in implementation.
This is also the option being considered in Canada, where a separate foreign influence registry would complement the existing registry administered by Canada's Commissioner of Lobbying (Box 3.9).
This scenario would also benefit not only from the HATVP's experience in administering a register of interest representatives but also from its status as an independent administrative authority. However, it would be necessary to strengthen the HATVP's means and capacities for monitoring the new register and to ensure that it has access to the information required for this monitoring. When it comes to foreign interference, access to information held by intelligence services, which can be transmitted in simplified forms, or even classified information, may prove essential to these monitoring activities, and the HATVP's ability to receive classified information is currently limited. Only information collected as part of the measures provided under the Monetary and Financial Code may be exchanged between the HATVP and Tracfin.
Box 3.9. Public consultation in Canada on the merits of a foreign influence transparency registry.
In 2023, the Government of Canada launched a consultation with Canadians on the merits of a foreign influence transparency registry.
In particular, the documentation provided for this consultation highlights that “while Canada has a number of tools that can ensure transparency, new measures could be considered, such as a foreign influence transparency registry, to better align Canada's approach with that of like-minded allies and partners and thereby strengthen global collective resilience”.
In particular, the consultation paper points out that the current lobbying register is difficult to apply to malign foreign influence campaigns that are designed to circumvent the registration requirements of the Lobbying Act. Above all, the Lobbying Act was not designed to prevent malign foreign influence. Aimed primarily at protecting Canada from influence when communication occurs between an entity and public office holders or politicians, the transparency mechanism associated with the Lobbying Act does not allow for the targeting of communication activities aimed broadly at the Canadian public.
Foreign states, and their proxies, seeking to disguise their intentions when influencing Canada could do so by circumventing lobbying registry obligations, and the tools in place may not apply to certain key processes, such as party nomination contests and sub-national elections, which are particularly vulnerable to malign foreign influence.
Source: Public Safety Canada (2023[23]), “Consulting Canadians on the merits of a Foreign Influence Transparency Registry”, https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2023-nhncng-frgn-nflnc-wwh/index-en.aspx; Public Safety Canada (2023[8]), “Enhancing Foreign Influence Transparency: Exploring Measures to Strengthen Canada’s Approach”, https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2023-nhncng-frgn-nfluence/index-en.aspx.
Scenario 2 - A single register of representation of interests administered by the HATVP
A variant of the first scenario would be to envisage a single register, covering both lobbying in the broad sense and foreign influence in the same system.
While the United States, Australia and the United Kingdom have opted for a separate register, interviews with the institutions responsible for implementing these systems have highlighted the fact that such a decision was sometimes made by default, due to the existence of a lobbying register that is too limited in scope and the political and practical difficulty of implementing a single register with ambitious transparency obligations.
While a discussion of the limits of the current lobbying framework in OECD countries is not the specific subject of this report, the OECD’s work on lobbying has highlighted the significant changes in the lobbying landscape in recent years, and in particular the evolution of practices. In particular, the rise of social media has made the lobbying phenomenon more complex. Today, a growing proportion of lobbying activities are also carried out via more global influence strategies that are no longer limited to simply entering into communication with a public official. Increasingly, the aim is to steer public debate, shape perceptions or persuade civil society to exert pressure on decision-makers. In this sense, traditional lobbying also involves techniques similar to those described for foreign influence purposes in this report, from the funding of think tanks and research institutes to influence campaigns on social media (OECD, 2021[3]).
As a result, the OECD standards on the transparency and integrity of lobbying activities are evolving towards more stringent transparency requirements, whether the activities are of domestic or foreign origin, and whether they are carried out on behalf of commercial, private or state interests. A conceptual rapprochement between the two systems is therefore conceivable.
It is also important to take into account potential avoidance strategies linked to the existence of two separate registers. Indeed, registration in the lobbying register may in some cases give rise to exemptions from registration in the foreign influence register. This is the case in the American FARA, where an exemption exists for companies in order to establish a principle of equity between foreign and American companies in the same industrial sector in accordance with the principles of competition. A foreign company registering on the lobbying register does not have to register under the FARA, which has more extensive disclosure requirements. This exemption allows a grey area for foreign influence by certain actors, in particular state-owned enterprises or those that act de facto under the direction or control of a foreign state. Several cases have been highlighted in which certain entities that should have registered under FARA have registered in the lobbying register to avoid more substantial and precise reporting obligations under FARA. In a 2021 memo, the DOJ noted that “foreign governments are increasingly using state-owned enterprises for strategic commercial as well as geopolitical purposes, making it more difficult to distinguish between representatives of foreign business interests and those who are agents of foreign governments and political parties” (Covington, 2022[24]). Several proposed amendments to FARA including a repeal of the exemption have already been considered by Congress.
Countries that already have a register on lobbying should therefore assess the costs and benefits of building the register on foreign influence on top of the existing one or establishing a separate register. On the other hand, countries that do not have any of these registers would certainly do well to consider the advantages and disadvantages of setting up a single register.
Scenario 3 - A separate registry under the responsibility of a new structure reporting to national security
A third scenario envisages the creation of a new structure under the authority of a government department that would be more effective in matters of security and defence of national sovereignty and would have broader powers than the HATVP to receive information from the intelligence services in order to ensure more effective control, beyond the information collected by Tracfin under the Monetary and Financial Code. The General Secretariat for Defence and National Security, for example, could host such a structure. The HATVP would still be responsible for the “classic” register of interest representatives.
In terms of advantages, this scenario would make it possible to clearly distinguish the lobbying register from the foreign influence register, giving it a particularly clear security aspect. The lobbying register and the HATVP would thus remain quite distinct. Such an approach would also make it easier to identify potential registrants who would not be registered.
However, this scenario would not benefit from synergies with the current lobbying register and would not build on the experience acquired by the HATVP in administering this type of register. The HATVP's status as an independent authority is also a strong point of the existing lobbying system, which would not be used for the system dedicated to foreign influence. Finally, it is important to take into account the potentially more stigmatising aspect of registering on the register dedicated to foreign influence if it is managed by a regalian institution linked to national security. Avoiding a strong stigmatisation of actors is a point of attention raised by countries with a foreign influence system, as this can act as an obstacle to registration.
In light of the advantages and disadvantages of the different scenarios presented above, and following collective discussions between the public administrations concerned during exchanges organised by the OECD, a consensus emerged on scenario 1.
3.6.2. The French legislator should ensure that the entity responsible for implementing the scheme has the necessary financial and human resources to carry out its mandate
Whatever the preferred scenario, the implementation of a system for the transparency of foreign influence activities will require additional human and financial resources. The size of the team needed to implement the scheme will depend heavily on the scope of the system, the types of activities covered, the extent of the verifications carried out and the investigative powers entrusted to the entity in charge of implementation, the size of the register, and the disclosure and transparency platforms put in place.
For example, the Attorney-General's Department team responsible for implementing FITS in Australia is made up of eight persons, while certain functions (e.g. legal advice) are shared with other schemes, such as the lobbying register, also implemented by the Attorney-General's Department.
In the United Kingdom, the number of legal entities and individuals who will be required to join the register is still uncertain, as the British authorities expect the system to provide a better picture of the size and scope of foreign influence in the United Kingdom. In view of this uncertainty, a team responsible for implementing FIRS will be set up. This team will work alongside an operational team within the Home Office, which will allow flexibility and mobility within the teams (e.g. in the event of excessive recruitment for the management of the register or, on the contrary, in the event of the need for additional recruitment).
Proposals for action
In order to promote an adequate level of transparency of foreign influence activities, the OECD recommends that France consider the following proposals:
Defining the foreign influence actors and activities covered by the transparency scheme
An adequate level of transparency of foreign influence activities should cover a wide range of foreign state interests that may benefit from them
To ensure an adequate level of transparency of foreign influence activities, the scheme should clarify what is meant by “acting on behalf of a foreign principal” and which entities or persons are likely to carry out these activities
The foreign influence activities covered by the scheme should take into account not only influence on decision-making processes, but also on public debate
In order to guarantee fundamental freedoms and fluid state-to-state relations, France's scheme on the transparency of foreign influence activities may include a list of legitimate exemptions
Defining the targets of foreign influence activities in the scheme
The public officials and entities likely to be targeted by foreign influence activities must be clearly specified and could include political parties and candidates in elections
The public decisions and democratic processes targeted could be extended to include foreign policy positions and electoral processes.
Influence activities involving the promotion of the image, policies or relations of a foreign principal could also be included in the scheme.
Defining transparency requirements for foreign influence activities
The legal framework could specify that registration within a reasonable registration period should be a prerequisite for any foreign influence activity for a specific foreign principal.
Reporting requirements should include accurate and regular information that highlights the key objectives of the activities.
The disclosure system could include differentiated obligations for a list of foreign principals/foreign powers whose activities have been determined to pose a risk to the Nation's interests.
Ensuring compliance with transparency obligations
The system could describe a specific list of breaches of the transparency obligations relating to foreign influence.
The scheme could provide for prior notifications to facilitate compliance.
The scheme could provide for a graduated system of sanctions ranging from administrative fines to criminal sanctions.
Defining the institutional framework for administering, monitoring, investigating and imposing penalties
The French legislator could consider several scenarios in which the HATVP could be is entrusted with all or part of the implementation of the foreign influence scheme :
Scenario 1 - A separate register administered by the HATVP
Scenario 2 - A single register of representation of interests administered by the HATVP
Scenario 3 - A separate registry under the responsibility of a new national security structure
The French legislator will have to ensure that the entity responsible for implementing the scheme has the necessary financial and human resources to carry out its mandate.
References
[18] Australian Attorney-General’s Department (2019), Foreign Influence Transparency Scheme Factsheet 10: Disclosures in communications activity, https://www.ag.gov.au/sites/default/files/2020-03/disclosures-in-communications-activities.pdf.
[20] Australian Attorney-General’s Department (2019), Foreign Influence Transparency Scheme Factsheet 17: Penalties for non-compliance, https://www.ag.gov.au/sites/default/files/2020-03/penalties-for-non-compliance-enforcement.pdf.
[7] Australian Attorney-General’s Department (2019), Foreign Influence Transparency Scheme Factsheet 4: Acting on behalf of a foreign principal and ‘registrable arrangements’, https://www.ag.gov.au/sites/default/files/2020-03/acting-on-behalf-of-foreign-principals.pdf.
[11] Australian Attorney-General’s Department (2019), Foreign Influence Transparency Scheme Factsheet 5: Registrable activities, https://www.ag.gov.au/sites/default/files/2020-03/registrable-activities.pdf.
[9] Charon, P. and J. Jeangène Vilmer (2021), “Chinese Foreign Influence Operations: A Machiavellian Moment”, Institut de Recherche Stratégique de l’École Militaire (IRSEM), https://www.irsem.fr/report.html.
[24] Covington (2022), Department of Justice Reveals Support for Eliminating the LDA Exemption to FARA and Other FARA Reforms, https://www.cov.com/en/news-and-insights/insights/2022/12/department-of-justice-reveals-support-for-eliminating-the-lda-exemption-to-fara-and-other-fara-reforms.
[5] EUR-Lex (2021), Interinstitutional Agreement of 20 May 2021 between the European Parliament, the Council of the European Union and the European Commission on a mandatory transparency register, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021Q0611(01).
[6] European Commission (2023), Proposal for a Directive of the European Parliament and of the Council establishing harmonised requirements in the internal market on transparency of interest representation carried out on behalf of third countries and amending Directive (EU) 2019/1937, https://eur-lex.europa.eu/resource.html?uri=cellar:1916cc5e-99c7-11ee-b164-01aa75ed71a1.0001.02/DOC_1&format=PDF.
[21] French National Assembly (2024), Proposition de loi No. 2150 visant à prévenir les ingérences étrangères en France, https://www.assemblee-nationale.fr/dyn/16/textes/l16b2150_proposition-loi.
[16] French National Assembly (2023), “Mission “Flash” sir la rédaction du décret No. 2017-867 du 9 mai 2017 relatif au répertoire numérique des représentants d’intérêts”, Commission des lois constitutionnnelles, de la législation et de l’administration génétale de la République, https://www.assemblee-nationale.fr/dyn/16/organes/commissions-permanentes/lois/missions-d-information-de-la-commission-des-lois/miflash-repertoire-representants-interets.
[22] French Parliamentary Delegation for Intelligence (2023), Rapport de la délégation parlementaire au renseignement relatif à l’activité de la délégation parlementaire au renseignement pour l’année 2022-2023, https://www.assemblee-nationale.fr/dyn/16/rapports/dpr/l16b1454_rapport-information.pdf.
[10] HATVP (2024), “Représentation d’intérêts”, https://www.hatvp.fr/espacedeclarant/representation-dinterets/ressources/.
[15] HATVP (2023), Rapport d’activités 2022, https://www.hatvp.fr/wordpress/wp-content/uploads/2023/05/HATVP-RA2022-pages-1.pdf.
[4] HATVP (2023), Répertoire des représentants d’intérêts. Lignes directrices : nouvelle version entrée en vigueur le 1er octobre 2023., https://www.hatvp.fr/wordpress/wp-content/uploads/2023/09/Lignes-directrices_nouvelles-version_entree-en-vigueur-au-01102023_VF.pdf.
[13] HATVP (2022), Extension du répertoire des représentants d’intérêts. Vade-mecum pour les déclarants, https://www.hatvp.fr/wordpress/wp-content/uploads/2022/06/Vademecum-HATVP-extension-RRI-VF.pdf.
[14] LégiFrance (2017), Décret n° 2017-867 du 9 mai 2017 relatif au répertoire numérique des représentants d’intérêts, https://www.legifrance.gouv.fr/loda/id/JORFTEXT000034633293/.
[3] OECD (2021), Lobbying in the 21st Century: Transparency, Integrity and Access, OECD Publishing, Paris, https://doi.org/10.1787/c6d8eff8-en.
[2] OECD (2017), “Recommendation of the Council on Open Government”, OECD Legal Instruments, OECD/LEGAL/0438, OECD, Paris, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0438.
[1] OECD (2010), “Recommendation of the Council on Principles for Transparency and Integrity in Lobbying”, OECD Legal Instruments, OECD/LEGAL/0379, OECD, Paris, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0379.
[12] Office of the Commissioner of Lobbying of Canada (2017), “Applicability of the Lobbying Act to Grass-roots Communications”, https://lobbycanada.gc.ca/en/rules/the-lobbying-act/advice-and-interpretation-lobbying-act/applicability-of-the-lobbying-act-to-grass-roots-communications/.
[23] Public Safety Canada (2023), “Consulting Canadians on the merits of a Foreign Influence Transparency Registry”, https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2023-nhncng-frgn-nflnc-wwh/index-en.aspx.
[8] Public Safety Canada (2023), “Enhancing Foreign Influence Transparency: Exploring Measures to Strengthen Canada’s Approach”, https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2023-nhncng-frgn-nfluence/index-en.aspx.
[19] UK Government (2024), “Foreign Influence Registration Scheme factsheet”, Policy paper, GOV.UK, Updated 12 February 2024, https://www.gov.uk/government/publications/national-security-bill-factsheets/foreign-influence-registration-scheme-factsheet.
[17] UK Parliament (2023), Policy statement on draft regulations for the Foreign Influence Registration Scheme, https://data.parliament.uk/DepositedPapers/Files/DEP2023-0172/Policy_statement_on_draft_regulations_for_FIRS.pdf.