This chapter analyses the legislative and regulatory framework set up in Chile to strengthen transparency and address the governance concerns related to lobbying and influence practices in the country. First, the chapter discusses how the scope of the Lobbying Act could be strengthened to cover all public decisions and officials that are commonly the target of lobbying activities, and how this scope could be adapted at various local levels. The chapter also provides avenues of consideration to modernise the legal framework in terms of its terminology in order to foster the emergence of a consensus on the legitimacy of lobbying in Chile. Lastly, the chapter provides concrete recommendations to strengthen the term “lobbying” so that it is adapted to the lobbying landscape in Chile and covers newer forms of indirect lobbying emerging from the advent of social media.
The Regulation of Lobbying and Influence in Chile
2. Strengthening the legal framework for lobbying in Chile
Abstract
The OECD experience shows that an effective lobbying regulation should provide an adequate degree of transparency on activities aimed at or capable of influencing government decision-making processes. Transparency is the disclosure and subsequent accessibility of relevant government data and information (OECD, 2017[1]). When applied to lobbying, it is a tool that allows for public scrutiny of the public decision-making process (OECD, 2021[2]). But while disclosing the right amount and types of information is essential to achieving adequate levels of transparency, it is not always easy to determine what constitutes the 'right' information, particularly when it comes to lobbying activities aimed at different levels of government. To ensure that public officials, citizens and businesses can obtain sufficient information on lobbying activities, it is usually recommended that the information disclosed covers who is lobbying or influencing government, who is the target of such activities and the specific policy issue that was the subject of these activities (OECD, 2021[2]).
As such, a critical element to achieve this objective is to first clearly define the scope of the law, and in particular definitions of the terms “lobbying” and “lobbyist”. Experience from OECD countries has shown that providing effective definitions remains a challenge, in particular because those who seek to influence the policy-making process are not necessarily 'de facto' lobbyists – such as think tanks, for example – and moreover, have evolved in recent years, not only in terms of the actors and practices involved but also in terms of the context in which they operate (OECD, 2021[2]).
To address this challenge, the definitions of “lobbying” and “lobbyist” should be tailored to the specific context and sufficiently robust, comprehensive and explicit to avoid misinterpretation and to prevent loopholes. This includes clarifying: (i) “who” carries out the lobbying and “on behalf of whom”, (ii) “who” are the public officials lobbied, (iii) “what” matters are lobbied about (i.e., the objective pursued and the specific public decision that was targeted) and (iv) “how” is the lobbying taking place.
In line with good practice, the Chilean Lobbying Act includes definitions of “lobbying” and “lobbyist” in its Article 2. A particularly of the Chilean framework is that the Act divides lobbying activities into two categories – “lobbying” (“lobby”) and “management of private interests” (“gestion de interés particular”) – based on whether the activity is remunerated or not. The definitions proposed in the Law are summarised in Box 2.1.
However, while definitions regarding “lobbying” (i.e., “lobbying” and “management of private interests”) are broad in scope, several potential loopholes remain that weaken the legislation and create confusion over the scope of the law. In particular, there is a need to:
Clarify the targets of lobbying activities.
Cover all actors and activities aimed at influencing government decision-making processes.
Box 2.1. Definitions of “lobbying” and “lobbyist” under the Chilean Lobbying Act
Lobbyists (“lobbista”) / Managers of private interests (“gestor de intereses particulares”) – Article 2 §5
A lobbyist is a natural or legal person, Chilean or foreign, remunerated, who carries out lobbying. If there is no remuneration, he/she will be called a manager of private interests, whether the interests are individual or collective.
Active Subjects (“sujetos activos”)
Those who carry out lobbying or private interest management activities before covered public officials (“sujetos pasivos”) established in the law.
Passive subjects (“sujetos pasivos”) – Articles 3 and 4
Authorities and officials before whom lobbying or private interest management activities are carried out, who must comply with the registration and transparency duties established by law.
Lobbying (“lobby”) – Article 2 §1
Any remunerated management or activity exercised by natural or legal persons, Chilean or foreign, whose purpose is to promote, defend or represent any particular interest, with the objective to influence the decisions that, in the exercise of their functions, must be adopted by covered public officials (“sujetos pasivos”) in accordance with the law with respect to the acts and decisions regulated therein.
This includes specific efforts to influence the public decision-making process and changes in policies, plans or programmes under discussion or development, or any measures implemented or matters to be resolved by the covered public official, authority or public body concerned, or to prevent such decisions, changes and measures.
Management of private interests (“gestión de Interés particular”) – Article 2 §2
Any non-remunerated management or activity exercised by natural or legal persons, Chilean or foreign, whose purpose is to promote, defend or represent any particular interest, with the objective to influence the decisions that, in the exercise of their functions, must be adopted by covered public officials (“sujetos pasivos”) in accordance with the law with respect to the acts and decisions regulated therein.
Particular interest (“interés particular”) – Article 2 §4
Any purpose or benefit, whether or not of an economic nature, of a natural or legal person, whether Chilean or foreign, or of a specific association or entity.
Hearing (“audiencia”) or meeting (“reunión”)
Meeting during which the public official targeted by lobbying or interest management activities receives a lobbyist or a manager of private interests, in person or virtually by means of an audiovisual video conference, to discuss any of the matters regulated by law, at the time and in the manner provided by the covered public official.
Source: Chilean Lobbying Act
2.1. Clarifying the targets of lobbying activities
2.1.1. The list of passive subjects could be expanded to include categories of public officials who, by reason of their function or position, have currently been included in the framework by resolution, so as to avoid creating different levels of transparency across government institutions
In terms of public officials targeted, the definition in the Lobbying Act provides a coherent approach to transparency at all levels of government, as it covers the three branches of government and the regional level. As such, Chile is one of the five OECD countries (with Austria, Greece, Lithuania and Slovenia) that provide transparency on lobbying activities targeting the judiciary, and one of six OECD countries whose national lobbying regulation also covers the regional and local levels (with Austria, France, Ireland, Lithuania and Slovenia). This avoids differences in scope and ensures equal levels of transparency across levels of government. In this respect, the Lobbying Act is one of the most comprehensive and coherent legislative frameworks among OECD countries, and it is therefore desirable to maintain its coverage of municipalities. The list of public authorities and public officials covered by the Act as “passive subjects” (Articles 3 and 4) is provided in detail in Table 2.1.
To promote transparency and accountability, the Lobbying Act requires the list of public officials targeted by lobbying activities to be made publicly available and kept up to date by each public institution covered by the Act, which aligns with best practices among OECD countries. The Lobbying Act also specifies in its Article 4 that the institutions covered by the legal framework can establish by means of resolutions or agreements other public officials as passive subjects if these public officials, by virtue of their function or position, have relevant decision-making powers or decisive influence on the persons who have such powers. The list of persons who are determined by these resolutions to be passive subjects are published annually on the websites of each institution.
In addition, if a person considers that a particular civil servant or public official, by reason of his or her function or position, has relevant decision-making powers or decisive influence over those who have such powers, he or she may request their incorporation, in writing, to the relevant authority. The latter must rule on the request within a period of ten working days, in sole instance, and any decision rejecting the request must be substantiated.
While this system allows some level of flexibility and to include in the list of passive subjects public officials who have not been considered as such in the legal framework, it does generate the risk of creating different transparency regimes across public institutions. For example, if a Ministry decides by resolution to include a specific category of public officials in the framework, but another Ministry doesn’t, lobbyists could be faced with different registration requirements to request meetings across governmental institutions, which might create confusion. To that end, it is recommended that the Commission for Public Integrity and Transparency conducts a review exercise to identify if certain categories of public officials have been consistently established by resolution as passive subjects by the various government institutions covered in Articles 3 and 4. These specific categories of public officials could be included in the revised legal framework.
However, it is also recommended to maintain the current system enabling government institutions to designate passive subjects by resolution, as this allows the transparency framework to be adapted to sensitive sectors and at-risk roles within the public administration, such as procurement officials in specific ministries. Updates could be made monthly instead of annually, and guidelines could be provided by the Commission for Public Integrity and Transparency to ensure consistency.
Table 2.1. Authorities and public officials covered by the Lobbying Act as “passive subjects”
Source: Lobbying Act.
2.1.2. The list of passive subjects could be expanded to include all political appointees with relevant decision-making powers or who have a decisive influence over those who have such powers
The Commission for Public Integrity and Transparency has pointed out that the current list of passive subjects misses out on certain categories of public officials, including municipal directors (the legal framework currently only covers the director of municipal works) and municipal administrators (the legal framework currently only covers municipal secretaries). Several stakeholders have also suggested to include directors of the Transparency Council, as only the counsellors are currently included in the framework. The Comptroller General has also ruled, through an opinion published online, that the legal framework should include directors and executive secretaries of municipal corporations (Comptroller General of the Republic of Chile, 2021[3]). Given that these categories of public officials can have relevant decision-making powers or decisive influence on public decisions, they could be included in the legal framework.
In any case, it is recommended that any further reform considers the specific risks of influence related to certain categories of public officials. For example, all categories of political appointees and advisors could be included in the legal framework. Indeed, political leaders, including ministers and members of Parliament, rely on advice from senior civil servants, and increasingly, advisors. This is a growing group of people who are often appointed outside the civil service and are essential to help these officials make informed strategic decisions, keep up with different stakeholders and accelerate government responses. The influence of political appointees and advisors has however become a source of public concern in the last decades in many countries. The nature of the functions they perform – strategic advice in the design of policies or reforms, crisis management, diplomacy, design of new laws and policies, – means that they are exposed to risks of undue influence because they interact closely with stakeholders, and are often contacted by lobbyists more easily (OECD, 2011[4]).
As such, political advisors in Chile who have relevant decision-making powers or who have a decisive influence over those who have such powers could also be included as a general rule in the framework, and not only those who belong to the central administration, as currently established in the framework.
2.1.3. The list of public decisions that are the target of lobbying activities could be expanded to include appointments of key government positions
In terms of public decisions targeted by lobbying activities, the Lobbying Act aligns with good practice. Regulated activities are those aimed at influencing the following public decisions (or preventing them from being taken):
The drafting, enactment, modification, repeal or rejection of administrative acts, bills and laws, as well as the decisions adopted by passive subjects (Article 5 §1)
The elaboration, processing, approval, modification, repeal or rejection of agreements, declarations or decisions of the National Congress or its members, including its commissions/committees (Article 5 §2)
The conclusion, modification or termination in any way of contracts entered into by the passive subjects and which are necessary for their operation (Article 5 §3)
The design, implementation and evaluation of policies, plans and programmes carried out by passive subjects (Article 5 §4).
Covering the appointment of certain persons to a key position within government is also good international practice and could be included in the framework. Indeed, decisions on the appointment of certain public officials can be a key area of interest for lobbyists, allowing them to advance their interests if a person in line with their specific interests is placed in the position concerned. This has also emerged as an area of concern in Chile, where several nominations to key positions subject to confirmation by Parliament have been questioned in the past due to allegations of undue influence on the nomination process.
To mitigate risks of undue influence from powerful interest groups in the nomination process, in France and the United States, the appointment of certain public officials is considered a type of decision covered by lobbying activities and is therefore covered by transparency requirements (Box 2.2). As such, a revised lobbying framework in Chile could include in the public decisions targeted governmental nominations to a position subject to confirmation by the Parliament.
Box 2.2. Individual appointment decisions are covered in France and the United States
France
The decisions covered by lobbying activities were specified in Law No. 2016/1691 for the promotion of transparency, combating corruption and the modernisation of the economy (Article 25). Under the heading of “other public decisions”, the contours of which are not specified, the French High Authority for Transparency in Public Life (HATVP), the public institution in charge of the implementation of the lobbying framework, considers that these cover “individual appointment decisions”.
United States
The decisions covered by lobbying activities are specified in the Lobbying Disclosure Act (section 3 on “Definitions”). They include appointments or confirmations of a person to a position subject to confirmation by the Senate.
Source: (OECD, 2021[2])
2.1.4. The Lobbying Act could allow for a greater adaptation of the disclosure of lobbying activities for certain public decisions according to the institutional levels concerned
Among OECD countries, Chile remains one of the few national frameworks that applies at the regional and municipal levels. The Chilean framework thus ensures that public decision makers, lobbyists and citizens, regardless of where they reside in Chile, have access to the same legal framework. This reinforces its coherence, makes it easier to understand and avoids a multiplication of divergent frameworks at different local levels. However, an undifferentiated application of the Act to all levels of government and to all public decisions without considering the reality of municipalities can also undermine the objective of transparency of the Act and its effective implementation.
Indeed, many citizens’ associations, community groups, sports clubs, local residents’ or young entrepreneurs’ groups, as well as small and medium-sized enterprises, are active at the municipal level. These groups are generally less structured than the interest groups represented at the regional or national level and have fewer resources. Above all, they seek a close relationship with local elected officials and are in regular contact with elected officials and civil servants in the municipalities. Reporting requirements for these actors for too many public decisions – in particular administrative decisions – could be disproportionate if they are not adapted to different levels of government.
To that end, the scope of application for these decisions could be modulated according to various institutional levels, whether federal, state or municipal. For example, activities related to individualised decisions (grants, permits, licences, certificates or other authorisations) could be excluded in small municipalities in favour of decisions of general application (normative acts, standards, guidelines, programmes and action plans). Consideration could also be given to establishing thresholds for contracts, financial contributions, permits or other authorisations granted by a municipal body, such as representations made as part of an administrative process established under a defined programme for obtaining a grant, financial assistance, loan or bond in an amount below a pre-determined threshold. A similar approach was recommended by the OECD in Quebec (Canada) (OECD, 2022[5]).
2.2. Covering all actors and activities aimed at influencing government decision-making processes
2.2.1. The distinction between “lobbyist” and “manager of private interests” is source of confusion and could be replaced by the use of a single term such as “interest representative”, encompassing a broader set of actors
In terms of actors considered as “active subjects”, the Lobbying Act enables coverage of a broad range of actors, and also covers both remunerated and non-remunerated activities, which aligns with best practice. Indeed, although the law currently distinguishes between lobbyists and managers of private interests depending on whether or not they receive remuneration, the distinction has no practical consequences on the implementation of the law.
However, most of the stakeholders interviewed for this report indicated that the distinction between “lobbyist” and “manager of private interests” could be seen as a source of confusion. Concretely, the term “lobbyist” is supposed to cover individuals who are remunerated to conduct lobbying activities, in other words professional lobbyists or public relations officials within entities who are considered to work in the lobbying industry or within companies with public relations departments. This means that other individuals who conduct lobbying activities regularly (e.g., who request regular lobbying meetings with public officials) but are not considered as being remunerated to specifically do so, can fall outside the scope of the word “lobbyist”. According to the Commission for Public Integrity and Transparency, the definition of “lobbyist” currently provided in Article 2 leaves out subjects that usually exert influence on public decision making, such as think tanks and trade unions.
In addition, some actors who are lobbyists do not register as such, but as “managers of private interests”. Similarly, some not-for-profit organisations are registered as “lobbyists” and others as “managers of private interests". For example, it was pointed out that many lawyers, who are paid to carry out lobbying activities and who are de facto “lobbyists”, register as managers of private interests. During their meetings with passive subjects, some lobbyists do not present themselves as lobbyists or interest managers (“I am an expert”, “I am an advocate”, “I am an academic”), while some managers of private interests (civil society organisations) do not want to be registered and consider that they represent the public interest and should be excluded all together from the law.
It also remains unclear from the definitions which specific organisations would be considered as managers of private interests, for example think tanks or religious groups, who are also active in influencing government decisions to translate the principles or policies they advocate for into law. In fact, some non-profit organisations are increasingly resourced with financial means and rely on a dedicated team to carry out lobbying activities (Box 2.3).
Box 2.3. Influencing decision-making processes involves a broad range of actors who increasingly rely on in-house professional lobbyists
Influencing decision-making processes involves several types of actors, including:
Companies specialising in lobbying, communications or public relations, law firms or independent lobbyists mandated to represent third party interests, such as companies or other organisations. These companies or individuals, usually located in key decision-making centres, have a deep understanding of the public policymaking process in a given jurisdiction. In countries with lobbying regulations, these actors are often referred to as “consultant lobbyists”.
Private companies and their representatives through dedicated in-house lobbying or public relations departments, or associations representing their interests (including sectoral or general associations such as chambers of commerce).
Trade unions and professional or industry associations representing employees or professions.
Non-governmental organisations, charities, community organisations, foundations and religious organisations. These organisations are the largest and most diverse group of actors influencing the public policy process. They bring causes to the attention of public policymakers, with a subjective view of the nature of the interests being defended. These organisations (be they public, corporate or state-funded) receive funding, usually from companies, public authorities or individuals, and represent specific interests and policy positions. They are increasingly numerous and organised, including with professionalised lobbying departments (Colli and Adriaensen, 2018[6]).
Research centres, think tanks and policy institutes, which offer knowledge on specific problems and can propose solutions. Some of these institutes receive funding from companies or other interest groups.
Source: (OECD, 2021[2])
For this reason, among other OECD countries with transparency mechanisms in place for lobbying activities, nine include religious organisations in the list of actors who are subject to transparency requirements in their lobbying activities, and fourteen include think tanks and research centres (Table 2.2).
Table 2.2. Actors subject to transparency requirements in their lobbying activities
OECD countries with transparency mechanisms in place for lobbying practices
Note: In Netherlands, the lobbying transparency framework is voluntary. Peru is an Adherent to the OECD Recommendation on Transparency and Integrity in Lobbying and Influence.
Source: (OECD, 2021[2])
Another aspect to take into consideration is that the current distinction could unintendedly promote the idea that there is “good” lobbying (representation of private interests), as opposed to “bad” lobbying, usually considered as for-profit. In Quebec (Canada) for example, the exclusion of unpaid lobbyists and civil society organisations from the legal framework was found to reinforce negative perceptions of lobbyists who are covered by transparency requirements (OECD, 2022[5]). This is why it is generally recommended not to exempt from or differentiate in the legal framework certain actors based on their status, whether their activities involve the pursuit of a financial or corporate benefit or not, nor on its method of financing or its field of intervention. These criteria are not the most relevant when pursuing the objective of the Lobbying Act to enhance transparency in lobbying. Indeed, the OECD Recommendation on Lobbying and Influence explicitly stresses that the definition of lobbying activities should be considered broadly and inclusively to provide a level playing field for interest groups, whether business or not-for-profit entities, which aim to influence public decisions (OECD, 2010[7]).
Instead, the legal framework should aim to delimitate a perimeter of active subjects based on the nature of their lobbying and influence activities, and the impact of these activities on public decision making. Registration and disclosure requirements can then be adapted based on the capacities of certain groups. This aspect, including easing the burden of compliance for specific interest groups with lesser capacities, is further discussed in the following section.
While the proposal to merge the two categories into a single one has received support during the consultations conducted for this report, several stakeholders pointed out that the distinction could still be useful in certain cases such as the regulation of the revolving door (e.g., a former minister for energy could not lobby for a company, but could be president of the association of energy companies without having any meetings with his or her former ministry for six months). Others mentioned that the concept of “lobbyist” should remain in the law.
Still, the remuneration criterion is clearly not the most relevant to distinguish various types of lobbying activities – especially as this criterion has no concrete practical impacts – and could be abandoned. Furthermore, to avoid any confusion, facilitate the application of the law and contribute to a cultural change related to how influence is perceived and experienced, it is recommended to merge both terms into one single concept. The term used could be “interest representative” (in English, and in Spanish, “representantes de intereses”), which is the term used, for example, in France and at the European Union level (Official Journal of the European Union, 2021[8]). The term “interest representative” would encompass by default all organisations and corporations whose employees engage in lobbying activities unless they qualify for a specific exemption.
Regardless of the approach chosen, the Chilean legislator could conduct a reflection on the terminology used to qualify lobbying activities in the legal framework. The need for this reflection is fully in line with the OECD’s approach, which emphasises that jurisdictions should weigh all available regulatory and policy options to select an appropriate solution that addresses key concerns such as accessibility and integrity, and takes into account the national context, for example the level of public trust and measures necessary to achieve compliance (OECD, 2010[7]). Several OECD countries have chosen to integrate all different categorisations of lobbyists into a single term “interest representative”. Germany, for example, without abandoning the terminology of “lobbying” in the wording of the law and the name of the register (“Lobbyregister”), nevertheless uses the term “interest representation” in its definitions of “lobbying” and “lobbyist” (Table 2.3). It should also be noted that having a unique term does not prevent the creation of different categories later on in the registration process, as shown in the example in Figure 2.1.
Table 2.3. Use of the terminology “interest representative” in OECD legal frameworks on lobbying
Source: (OECD, 2021[2])
Figure 2.1. Categories of “interest representatives” specified in the EU Transparency Register
Source: EU Transparency Register, Model registration form, https://ec.europa.eu/transparencyregister/public/openFile.do?fileName=Model_registration_form_en.pdf
2.2.2. Specific exemptions from additional lobbying disclosure requirements could be based on interest groups’ capacities and resources
The Chilean lobbying framework puts the onus on the public officials who are being targeted by lobbying activities by requiring them to disclose information on their meetings with lobbyists. Later in this report, disclosure requirements will be recommended for active subjects. In other words, the “Public Agenda Register”, which includes all public registers of hearings and meetings (Article 2 §3), would be complemented by a Register of Lobbyists in which active subjects would be required to make disclosures on their lobbying activities, including the objective of these activities.
While it is recommended that the current system of hearings and meetings remain unchanged, including the mandatory registration of all active subjects to request a meeting, additional disclosure requirements that could in the future be required of active subjects can be adapted based on certain interest groups’ capacities and resources, instead of their status or not-for-profit nature.
Experience from other OECD jurisdictions, such as in Ireland and Scotland, has found that lobbying regulations did not have an inhibiting effect on the lobbying activities of not-for-profit organisations covered by the regulation. Although the administrative burden has increased for these organisations, registration has also had benefits, such as increasing public awareness of the activities of these organisations to influence public policy on matters of public interest (Hepburn, 2017[9]). Still, adapting certain disclosure requirements to certain interest groups’ capacities and resources can help ensure the additional administrative burden of compliance does not become an impediment to fair and equitable access to government, in particular for small citizen structures with scarce resources, or those that are composed solely or mainly of volunteers.
The Commission for Public Integrity and Transparency is also of the view that interest representatives should not all be subject to the same registration and disclosure obligations. In particular, the Commission believes that actors who represent economic interests or conduct lobbying activities more frequently should be subject to higher registration or disclosure requirements than other interest groups with less resources, for example local community organisations, neighborhood associations, unions, small churches, indigenous communities, non-profit sports clubs, youth and cultural organisations, and student representation associations.
To that end, lobbying activities made without an intermediary by a community organisation primarily offering support services directly to the public could be excluded from any further disclosure requirements. A similar proposal was made in Quebec (Canada) (OECD, 2022[5]). Certain thresholds could be introduced and assessed at the level of the entity carrying out activities, such as the time spent preparing, organising, carrying out and following up a lobbying activity. This criterion could be assessed over a period of six months or one year. In British Columbia (Canada), for example, thresholds have been introduced where one or more individuals in an organisation, alone or collectively, have spent at least 50 hours lobbying or preparing to lobby in the previous 12 months. A similar mechanism could be envisaged for lobbying activities carried out by a group of individuals, where the nature of such representation falls within the scope of the Lobbying Act. This would both avoid diluting relevance – where such representations are one-off or ad hoc – while not totally excluding such activities from transparency requirements (OECD, 2022[5]). The Office of the Commissioner of Lobbying of Canada has made similar recommendations based on the number of employees of an organisation and the cumulative time spent by this organisation on lobbying activities (Box 2.4).
Box 2.4. Proposals by the Commissioner of Lobbying of Canada for limited exemptions to mitigate the administrative burden of compliance while maximising transparency
In Canada, the Lobbying Act requires those who are defined as lobbyists under the Act to disclose their lobbying activities on a monthly basis. In 2021, the Commissioner of Lobbying put forward a number of proposals to clarify certain provisions of the act, including a proposed exemption based on simplified criteria that could be used to identify the types of corporations and organisations that could be appropriately exempted from the reporting requirements under the Lobbying Act.
These criteria include the number of employees, the number of hours over a short period of time spent on lobbying activities and whether a primary purpose of the corporation or organisation is to represent membership interests or to promote or oppose issues.
The Commissioner of Lobbying therefore recommended to include in the Lobbying Act a requirement that every corporation and organisation employing in-house lobbyists must register by default unless all of the following objective criteria are met:
it employs fewer than six (6) employees and is not a subsidiary of, or otherwise controlled by, any other corporation or organisation which collectively employs six (6) or more employees; and
its employees collectively and cumulatively spend less than eight (8) hours in the preceding three-month period on lobbying-related activities, inclusive of time spent preparing to communicate with federal public office holders; and
one of its primary purposes is not to represent the interests of its membership or to promote or oppose issues.
The criteria governing the application of this limited exemption would be cumulative, which means that if a corporation or organisation does not meet one or more of these three criteria, then it would not qualify for the exemption and, instead, continue to be required to register its in-house lobbying activities.
The Commissioner considers that these criteria would help ease the administrative burden of complying with the Lobbying Act for smaller corporations and organisations that engage in limited amounts of lobbying or that lobby on an infrequent basis.
2.2.3. The definition of lobbying and the list of activities considered as such could be expanded to cover indirect forms of influence
In terms of activities and communications considered as lobbying activities, while the definition of “lobbying” and “management of private interests” in the Lobbying Act are quite broad, they do not sufficiently clarify which activities and communications are included in the definition. Moreover, the disclosure regime only covers face-to-face or online meetings, as discussed in the following chapter. This leaves out of the transparency framework other and newer forms of communication, such as the use of social media as a lobbying tool.
Indeed, lobbying is itself a constantly evolving concept and the advent of social media has further increased its complexity. Lobbying laws and regulations therefore frame an environment that is bound to change. In particular, the avenues by which stakeholders engage with governments encompass a wide range of practices and actors (OECD, 2021[2]) (Table 2.4). Nowadays, an increasing number of companies use information campaigns on social media to shape policy debates and persuade members of the public to put pressure on policymakers and indirectly influence the government’s decision-making process.
To address this challenge, lobbying activities should not be narrowed to a communication between a lobbyist and a public official, while the inclusion of indirect lobbying activities has become unavoidable. It is also seen by some stakeholders, such as institutional investors, as relevant information that should be disclosed. Indeed, investors increasingly view the lack of transparency on corporate lobbying and political engagement, and its inconsistencies with companies’ positioning on environmental and societal issues, as an investment risk. The number of shareholder proposals concerning the disclosure of lobbying has increased dramatically over the past decade, particularly in the area of climate change lobbying. These proposals systematically include transparency requirements on appeals to the general public and indirect lobbying, as these practices are insufficiently covered in lobbying regulations, and institutional investors cannot obtain this information through lobbying transparency registers (OECD, 2022[11]).
In Chile, while the definition provided in Article 2 is broad, transparency is only provided on hearings and meetings between lobbyists and public officials. It does not cover, for example communications through emails or other related means. In addition, several stakeholders, including the Commission for Public Integrity and Transparency, the Transparency Council and the Advisory Commission against Disinformation, noted that an increasing number of lobbying and influence practices occurring in the country are being exercised in the public space, for example through the use of advertisements in media outlets, as well as billboards in large metropolitan areas to promote or oppose certain ideas (Ruiz and Tagle, 2011[12]; Chilean Transparency Council, 2022[13]; Chile Advisory Commission against Disinformation, 2023[14]).
To strengthen its definition, Chile could therefore consider the examples of Canada, Ireland and the European Union, which have the most comprehensive definitions and are best adapted to the evolution of lobbying practices (Box 2.5).
Box 2.5. Examples of broad definitions of ‘lobbying’ amongst OECD members
Canada
Communications considered as lobbying include direct communications with a federal public office holder (i.e., either in writing or orally) and grass-roots communications. The Lobbying Act defines grassroots communications 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”. For consultant lobbyists (those who lobby on behalf of clients), arranging a meeting between a public office holder and any other person is also considered as lobbying.
In its August 2017 Interpretation Bulletin, the Office of the Commissioner of Lobbying of Canada clarified the means used for the purpose of appealing to the general public may include letter and electronic messaging campaigns, advertisements, websites, social media posts and platforms. The Commissioner also indicated that participation in the strategic and operational activities of an appeal to the general public (research and analysis, advice, preparing and disseminating content,) also requires registration.
Ireland
Relevant communications mean communications (whether oral or written and however made) made personally (directly or indirectly) to a designated public official in relation to a relevant matter. The website of the Irish lobbying register indicates that “relevant communications” can include informal communications such as casual encounters, social gatherings, social media messages directed to public officials, or “grassroots” communication, defined as an activity where an organisation instructs its members or supporters to contact public officials on a particular matter.
European Union
In the European Union, the Inter-institutional Agreement on a mandatory transparency register defines “covered activities” as: (a) organising or participating in meetings, conferences or events, as well as engaging in any similar contacts with Union institutions; (b) contributing to or participating in consultations, hearings or other similar initiatives; (c) organising communication campaigns, platforms, networks and grassroots initiatives; (d) 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.
2.2.4. The list of exceptions provided in Article 6 could be revised and clarified to avoid loopholes on the one hand, and the inclusion in the legal framework of practices that do not constitute lobbying on the other hand
Definitions on lobbying should clearly specify the type of communications with public officials that are not considered “lobbying” (OECD, 2010[7]). Some activities are relevant to exclude, for example information provided during a meeting of a public nature and for which information is already made available (for example, public hearings of committees in Parliament). In Chile, the Lobbying Act includes a list of 11 exceptions specified in Article 6 (Table 2.5).
Table 2.5. Exceptions under the Chilean Lobbying Act (Article 6)
The following are not regulated activities:
Source: Lobbying Act
However, there are certain exceptions in the Lobbying Act that merit particular attention, as they may create important loopholes. In particular, the exception for information provided to a public authority, which has expressly requested it (Article 6 §4) may make it difficult, in the event of a potential infringement of the Lobbying Act, to trace who initiated a communication, especially when the relationship between a passive subject and an active subject is regular and well established. This also creates inequalities between active subjects: those who have built up close and regular relationships with decision makers are more easily identified by public officials and are more often approached for their technical expertise. As a result, they may be subject to lesser disclosure obligations than interest groups with limited contacts who almost always initiate these exchanges. Thus, this specific exception could be removed or narrowed down to communications by active subjects made in response to a request from a public official concerning factual information only, and provided that the response does not otherwise seek to influence a decision or cannot be considered as seeking to influence a decision. In the United Kingdom for example, if a designated public official initiates communication with an organisation and in the subsequent course of the exchange the criteria for lobbying are met, then the organisation is required to register the activity (OECD, 2021[2]).
Second, Article 6 §3 on requests for information by lobbyists could be further clarified to include, for example, when they consist of enquiring about the interpretation of a law, or when they are intended to inform a client on a general legal situation or on his specific legal situation. Such a provision exists for example in France (Box 2.6).
Box 2.6. Exclusion of communications limited to factual exchanges in France
In France, not all communications that are limited to factual exchanges are covered by the framework. These are situations where the communication is limited to one of the following purposes:
Where an organisation requests factual information, accessible to any person, from a public official.
When an organisation asks a public official for an interpretation of any existing public decision.
When an organisation provides a public official with information about its operations or activities, without a direct link to a public decision, for example in the context of sending an annual activity report or a factory visit.
Source: HATVP (2018), Répertoire des représentants d’intérêts: Lignes directrices, https://www.hatvp.fr/wordpress/wp-content/uploads/2018/10/Lignes-directrices-octobre2018.pdf.
Third, the Lobbying Act excludes “consultancies contracted by public and parliamentary bodies carried out by professionals and researchers from non-profit associations, corporations, foundations, universities, study centres and any other similar entity, as well as invitations extended by these institutions to any official of a State body” (Article 6 §6), as well as “invitations by state officials and parliamentarians to participate in meetings of a technical nature to professionals from the entities mentioned in number 6” (Article 6 §8). It is, however, not recommended to exclude from registration consultative processes with any such individuals or entities. In particular, the provision excluding invitations extended by “professionals and researchers from non-profit associations, corporations, foundations, universities, study centres and any other similar entity” could be removed. Instead, such invitations could be registered by public officials in the register of gifts and/or travel, which could be transformed into a register of “gifts, invitations, hospitalities and other benefits” (see Chapter 3). Other exclusions of Article 6 §6 and Article 6 §8 are covered in the following section and in Chapter 4.
To further strengthen the list of exceptions and exemptions, the Lobbying Act could consider excluding from the definition of lobbying communications between public authorities, as these do not constitute lobbying. This does not prevent public authorities from later being required to publish their public agenda, including their meetings with other public authorities, online. However, these meetings should not be confused with lobbying, as they are part of normal government operations.
Lastly, communications by a natural person concerning his or her own private affairs, including opinions expressed in a strictly personal capacity and not in association with others, could also be excluded from the scope. For example, an individual who writes to a Member of Parliament in a personal capacity – and not at the direction of another individual or interest group – to request the amendment of a law would not be a lobbyist in the meaning of the Act. This should however not exempt the activities of individuals associating with others to represent interests together. Examples are provided in Box 2.7.
Box 2.7. Exemptions on communications by natural persons in OECD countries
European Union
In the European Union, the purpose of the Register is to show organised and/or collective interests, not personal interests of individuals acting in a strictly personal capacity and not in association with others. As such, activities carried out by natural persons acting in a strictly personal capacity and not in association with others, are not considered as lobbying activities. However, activities of individuals associating with others to represent interests together (e.g., through grassroots and other civil society movements engaging in covered activities) do qualify as interest representation activities and are covered by the Register.
Germany
In Germany, the Act Introducing a Lobbying Register for the Representation of Special Interests vis-à vis the German Bundestag and the Federal Government (Lobbying Register Act, Lobbyregistergesetz), excludes the activities of natural persons who, in their submissions, formulate exclusively personal interests, regardless of whether these coincide with business or other interests.
Ireland
In Ireland, the Regulation of Lobbying Act exempts “private affairs”, which refer to communications by or on behalf of an individual relating to his or her private affairs, unless they relate to the development or zoning of land. For example, communications in relation to a person’s eligibility for, or entitlement to, a social welfare payment, a local authority house, or a medical card are not relevant communications.
United States
In the United States, communications made on behalf of an individual with regard to that individual's benefits, employment, or other personal matters involving only that individual with respect to the formulation, modification, or adoption of private legislation for the relief of that individual are not considered as lobbying activities under the Lobbying Disclosure Act.
Source: (OECD, 2021[2])
2.2.5. The Lobbying Act could include provisions on the participation of lobbyists in certain advisory groups and expert groups
Governments across the OECD make wide use of advisory and expert groups to inform the design and implementation of public policy. An advisory or expert group refers to any committee, board, commission, council, conference, panel, task force or similar group, or any subcommittee or other subgroup thereof, that provides advice, expertise or recommendations to governments. Such groups are composed of public and private sector members and/or representatives from civil society and may be set up by the executive, legislative or judicial branches of government (OECD, 2021[2]; OECD, 2010[7]). These groups can be permanent or set up on an ad hoc basis to respond to specific needs in a specific period of time. During the COVID-19 crisis, for example, many governments have established ad hoc institutional arrangements to provide scientific advice and technical expertise to guide their immediate responses and recovery plans.
Chairpersons and members of advisory or expert groups can help strengthen evidence-based decision making. In Chile, advisory groups are widely used as a mechanism to include civil society and private sector representatives in decision-making processes and have demonstrated concrete and tangible impact in shaping policymaking and service delivery. The commission of experts who had been tasked with preparing a new Constitution (Comité de Expertos para una nueva Constitución) is a concrete example of these types of bodies.
However, without sufficient transparency and safeguards against conflict-of-interest, these groups may risk undermining the legitimacy of their advice by allowing individual representatives participating in these groups to favour private interests, whether done unconsciously or not. For example, members of advisory groups can produce biased evidence to decision makers on behalf of companies or industries. Certain interest groups selected to participate in advisory groups can also allow corporate executives or lobbyists to advise governments as members of an advisory group, and lobby “from within” while being exempt from lobbying disclosure obligations.
In view of the risks, the legal framework could be revised to include a provision regulating the participation of external entities mentioned in Article 6 §6 (professionals and researchers from non-profit associations, corporations, foundations, universities, study centres and any other similar entity) into advisory and expert groups. The Transparency Code for working groups in Ireland may serve as an example for Chile in Box 2.8.
Box 2.8. Transparency Code for Working Groups in Ireland
In Ireland, any working group set up by a minister or public service body that includes at least one designated public official (equivalent of a “passive subject”) and at least one person from outside the public service, and which reviews, assesses or analyses any issue of public policy with a view to reporting on it to the Minister of the Government or the public service body, must comply with a Transparency Code. The following information must be published on the website of the public body on its establishment:
Names of chairperson and members, with details of their employing organisation (if they are representing a group of stakeholders, this should be stated).
Whether members from outside the public sector were formerly public officials.
Terms of reference of the group.
Expected timeframe for the group to conclude its work.
Reporting arrangements.
In addition, the agenda and minutes of each meeting must be published and updated at least every four months. The chairperson must include with the final or annual report of the group a statement confirming its compliance with the Transparency Code. If the requirements of the Code are not adhered to, interactions within the group are considered to be a lobbying activity under the Regulation of Lobbying Act 2015.
Source: Department of Public Expenditure and Reform, Transparency Code prepared in accordance with Section 5 (7) of the Regulation of Lobbying Act 2015, https://www.lobbying.ie/media/5986/2015-08-06-transparency-code-eng.pdf
Proposals for action
In order to strengthen the legal framework for lobbying in Chile, and to be as consistent as possible with OECD standards and international best practices in this area, the OECD recommends that the Government of Chile considers the following proposals.
Clarify the targets of lobbying activities
Expand the list of passive subjects to include categories of public officials who, by reason of their function or position, have currently been included in the framework by resolution, so as to avoid creating different levels of transparency across government institutions.
Expand the list of passive subjects to include all political appointees.
Maintain the current system enabling government institutions to designate passive subjects by resolution, so as to allow the transparency framework to be adapted to sensitive sectors and at-risk roles within the public administration.
Expand the list of public decisions that are the target of lobbying activities to include the appointment of certain persons to a key position.
Adapt the disclosure of lobbying activities targeting certain public decisions according to the institutional levels concerned (national, regional, municipal). For example, activities relating to individualised decisions (grants, permits, licences, certificates or other authorisations) could be excluded in small municipalities so as to focus on decisions of general application (normative acts, standards, guidelines, programmes and action plans).
Cover all actors and activities aimed at influencing government decision-making processes
Remove the remuneration criterion to distinguish between “lobbyists” and “managers of private interests” in the legal framework and merge these terms into a single concept such as “interest representative”. This will not prevent the creation of various categories later on in the registration process.
Encompass by default in the definition of “lobbyist” / “interest representative” all organisations and corporations whose employees engage in lobbying activities unless they qualify for a specific exemption, as well self-employed lobbyists acting on behalf of clients.
Consider specific exemptions from additional lobbying disclosure requirements based on interest groups’ capacities and resources. Such thresholds could be based on the number of employees of an organisation and the cumulative time spent by this organisation on lobbying activities, instead of the for-profit or not-for-profit nature of the organisation.
Expand the definition of lobbying and the list of activities considered as such to cover indirect forms of influence, such as organising communication campaigns, platforms, networks and grassroots initiatives.
Revise the list of exclusions, exceptions and exemptions provided in Article 6, including:
Remove or narrow down the exception in Article 6 §4 (information provided to a public authority which has expressly requested it), to communications by lobbyists made in response to a request from a public official concerning factual information only, and provided that the response does not otherwise seek to influence a decision or cannot be considered as seeking to influence such a decision.
Strengthen the exception of Article 6 §3 to include communications that consist of enquiring about the interpretation of a law, or when they are intended to inform a client on a general legal situation or on his specific legal situation.
Remove in Article 6 §6 the exclusion of invitations extended by “professionals and researchers from non-profit associations, corporations, foundations, universities, study centres and any other similar entity”, as these may be lobbying activities.
Add as an exclusion communications between public authorities, as these do not constitute lobbying. This does not prevent public authorities from later being required to publish their public agenda, including their meetings with other public authorities, online.
Add as an exception communications by a natural person concerning his or her own private affairs, including opinions expressed in a strictly personal capacity and not in association with others.
Provide that the exception for participating in advisory and expert groups from the Lobbying Act (which may be covered by the current exceptions in Articles 6 §6 and §8) should be conditioned on abiding by a Transparency Code for advisory and expert groups set up by government institutions.
References
[14] Chile Advisory Commission against Disinformation (2023), El fenómeno de la desinformación: Revisión de experiencias internacionales y en Chile, https://minciencia.gob.cl/uploads/filer_public/26/cb/26cb92cb-5614-4e7c-a46e-f001a2b838b1/informe_i_-_el_fenomeno_de_la_desinformacion_global_y_en_chile_1.pdf.
[13] Chilean Transparency Council (2022), Fiscalización Focalizada. Avisaje y Publicidad en la Administración del Estado, https://www.consejotransparencia.cl/wp-content/uploads/fiscalizacion_foca/2022/04/Resumen_Avisaje-y-Publicidad_21_04_2022.pdf.
[6] Colli, F. and J. Adriaensen (2018), Lobbying the state or the market? A framework to study civil society organizations’ strategic behavior”, Regulation & Governance, https://doi.org/10.1111/rego.12227.
[3] Comptroller General of the Republic of Chile (2021), Dictámen Nº E160316. Corporaciones municipales se encuentran sujetas a las regulaciones establecidas en las leyes Nºs. 19.880, 19.886, 20.285, 20.730 y 20.880, https://www.contraloria.cl/pdfbuscador/dictamenes/E160316N21/html.
[9] Hepburn, E. (2017), The Scottish Lobbying Register: Engaging with Stakeholders. A Report by Eve Hepburn prepared for the Scottish Lobbying Register Working Group of the Scottish Parliament, https://archive2021.parliament.scot/LobbyingRegister/Hepburn_Lobbying_Register_Report_2.
[11] OECD (2022), “Regulating corporate political engagement: Trends, challenges and the role for investors”, OECD Public Governance Policy Papers, No. 13, OECD Publishing, Paris, https://doi.org/10.1787/8c5615fe-en.
[5] OECD (2022), The Regulation of Lobbying in Quebec, Canada: Strengthening a Culture of Transparency and Integrity, OECD Public Governance Reviews, OECD Publishing, Paris, https://doi.org/10.1787/ec0cfef3-en.
[2] OECD (2021), Lobbying in the 21st Century: Transparency, Integrity and Access, OECD Publishing, Paris, https://doi.org/10.1787/c6d8eff8-en.
[1] 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.
[4] OECD (2011), Ministerial Advisors: Role, Influence and Management, OECD Publishing, Paris, https://doi.org/10.1787/9789264124936-en.
[7] OECD (2010), “Recommendation of the Council Transparency and Integrity in Lobbying and Influence”, OECD Legal Instruments, OECD/LEGAL/0379, OECD, Paris, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0379.
[10] Office of the Commissioner of Lobbying of Canada (2021), Improving the Lobbying Act: Preliminary recommendations, https://lobbycanada.gc.ca/en/reports-and-publications/improving-the-lobbying-act-preliminary-recommendations/#rec-1.
[15] 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/.
[8] Official Journal of the European Union (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).
[12] Ruiz, P. and V. Tagle (2011), “Propriedad de los medios y principios de intervención del Estado para garantizar la libertad de expresión en Chile”, Revista de Derecho Universidad Católica del Norte, Vol. 18/2, pp. 347-359, https://doi.org/10.4067/S0718-97532011000200012.