The “foreign agent law” in contemporary Europe - UNITED for Intercultural Action

by Riccardo Mattone Fantini

A new target for nationalist politicians

Historically, authoritarian regimes have identified certain social, ethnic, or political groups as scapegoats, to explain the political, social, and economic issues in the country. Often, these scapegoats were defined as “foreign agents” to underline that they had acted against national interests. Then, after labeling anyone who defended these “foreign agents” scapegoats and parasites as well, the idea of the enemy of the state was born.

The best example of this process is the Nazist propaganda against Jews during the 1920s and 1930s. Using false documents, such as the Protocols of the Elders of Zion, Adolf Hitler and his Minister of Propaganda Joseph Goebbels aimed to ‘prove’ that German Jews were conspiring against Germany to impose the will of a non-better-defined Jewish Marxist lobby.¹ This quote from Hitler’s Mein Kampf shows how he envisioned this: “Slowly fear and the Marxist weapon of Jewry descend like a nightmare on the mind and of decent people. They begin to tremble before the terrible enemy and thus have become his final victim”.²

At the turn of the new millennium, different right-wing politicians have tried to label their political opponents as “foreign agents.” NGOs often face this, especially NGOs focusing on the democratic rights of citizens and migrants. Because of their autonomy and independence, NGOs are sometimes seen as difficult to control. They also tend to speak up critically against human rights violations and other harms. That’s why, for some right-wing politicians, it is better to define them as enemies, taking away their resources and their legitimacy.

This article will focus on the situations of three countries: Russia, Hungary, and Italy. We would like to show how the so-called “foreign agent laws” have endangered the democratic principle, highlighting both cross-country similarities and differences.

Russia: Stopping the independent media

In July 2012, Russian President Vladimir Putin signed the “Law on Amendments to Legislative Acts of the Russian Federation regarding the Regulation of the Activities of Non-Profit Organizations Performing the Functions of a Foreign Agent,” better known as Foreign Agent Law.

This Law requires that all the organizations engaging in political activities and receiving foreign funding must register as foreign agents, facing different obligations:³

Foreign agents must produce financial reports and submit them to a state audit annually
Foreign agents are submitted to an unlimited number of unscheduled audits
Political activities must be registered with authorities before the organization is permitted to participate in them
If a foreign agent refuses to register as such, they are banned from participating in public demonstrations, access to its bank accounts is limited, and may be subject to a fine of up to 300.000 rubles (around 10.000 USD) or up to two years in prison for its personnel
All foreign donations larger than 200.000 rubles (about 6.700 USD) are subject to mandatory monitoring
Foreign agents must label all the materials distributed in the media, including on the internet, as products of foreign agents
Violations of the law are now under the jurisdiction of the federal agency responsible for monitoring money laundering and the financing of terrorism

According to the analysis of the Freedom House, there are several critical aspects of the Law that can be defined as anti-democratic.⁴ The Foreign Agent Law:

Threatens the financial sustainability of Russian NGOs

The Law discourages NGOs from accepting the most sustainable funding available to them, also considering that the government has been known to discourage Russian businesses from supporting NGOs.

It does not give a clear definition of “political activity”

The Law’s definition of political activity is broad, including any activity seeking to influence government policy or public opinion concerning government policy. In this manner, “apolitical” organizations that engage in a critique of government policy could be deemed as political as well.

Damages the credibility of NGOs

The regime has continuously fostered suspicion on NGOs that receive foreign funding, evoking the Soviet-era term and narrating that foreign interests are bent on interfering with Russian sovereignty and destabilizing the country.

Makes contact with government bodies more difficult

The Law could discourage cooperation between state bodies and civil society, hampering civil society’s ability to engage in dialogue with authorities on any policy issue.

Provides exceptions, such as religious organizations, state corporations, and business groups

The Law immunizes the Russian Orthodox Church and foreign investors, encouraging their continuous support for the regime.

There were many complaints against the Foreign Agent Law, both inside and outside Russia. For example, a demonstration of Russian independent journalists took place in front of the Russian Parliament the day the Law had entered into force because they feared that there could be significant consequences on media freedom.⁵ The US administration reacted, arguing that “harassment and censorship of the independent media are common in the Russian Federation”.⁶

The Kremlin disregarded the criticism, affirming that the Law is necessary to protect Russia from external attempts to influence internal politics. Still, many NGOs replied that considering the impossibility of accessing government funds, they were obliged to get financial support from abroad.⁷

An important activity of many NGOs in Russia is the monitoring of electoral results. Several of these NGOs were also persecuted using the Foreign Agent Law. One of these is NGO Golos, which was founded in 2000 to act as an electoral monitor in Russia. After the 2011 presidential elections, Golos documented different electoral frauds favoring Vladimir Putin. Then, in 2013 the NGO was labeled as a foreign agent. For this reason, Golos became an unregistered civil movement, and different of its members were forced to leave Russia and ask for international protection abroad. Despite these challenges, they trie to continue their monitoring work.⁸

In August, just one month before the elections, Golos was again inserted in the list of foreign agents by the Russian Interior Ministry. Golos brought the case before the European Court of Human Rights in response. On 16th November, The ECHR ruled in its favor, arguing that the Russian government “had violated freedom of expression”.⁹
Despite the international pressure to revoke the Foreign Agent Law, the Russian government recently has decided to enrich the list of foreign agents published by the Security Services. On this occasion, the targets are journalists and former militaries who documented abuses in the military and security services and the financial troubles of the Russian space agency Roscosmos.¹⁰

Hungary: Following the Russian path

On 13th June 2017, the Hungarian National Assembly adopted the Act LXXVI of 2017 on the Transparency of Organizations Supported from Abroad after the draft proposal was submitted to the Parliament by three members of the ruling party Fidesz.

This Law obliged “associations and foundations that receive at least 7.2 million HUF (around 22.000 USD, ed.) annually from foreign sources to register with the court as an organization receiving foreign funding, to annually report about their foreign funding, and to indicate the label “organization receiving foreign funding” on their website and publications. The list of foreign funded NGOs is also published on a government website”.¹¹

The approval of the Law followed a campaign, that since 2013 has accused NGOs to be “foreign agents”. This campaign accused NGOs of acting against Hungarian national interests, because they have to be accountable to foreign donors, particularly the entrepreneur and philanthropist George Soros, continually targeted by President Viktor Orbán during his public speeches.

According to the Helsinki Foundation for Human Rights, this Law presented different legal issues:¹²

The Law interferes with the freedom of expression of the organizations as it affects the right to a good reputation

Indeed, the term “abroad” used several times in the text creates an immediate dichotomy between the NGOs founded by foreign actors and Hungary’s real national interest. This obviously damages the public’s image of these NGOs.

The Law violates the right to privacy and personal data protection

The Law obligates private donors to become publicly recognizable, violating their privacy. In fact, the Government published a list of NGO’s donors on their website.

The Law violates the freedom of association

The fines between 10.000 and 900.000 HUF (around 31- 2.800 USD, ed.) imposed by the Law are disproportionate and create economic and social pressures on the organizations.

The Law violates the general prohibition of discrimination in relation to the freedom of association

The Law distinguishes between NGOs and other commercial organizations based on the resources they receive, violating sectoral equity.

There was no public consultation during the legislative process

Before submitting the draft to the Parliament, the government called for a consultation with the five opposition parties and, even though none of them supported the proposal, the public opinion was not informed officially before the submission to the Parliament, so that there was no public debate on this topic.

The Law introduces unjustified and disproportionate restrictions to the free movement of capital

These measures can have a dissuasive effect on NGOs’ donors, and they can create enormous burdens for NGOs that receive funds from abroad, creating discrimination.

The Law follows the autocratic Russian example

The Law presents strong similarities with the Russian Foreign Agent Law, both in the intentions and content of the Law: some parts of the Hungarian Law are simply translations of the Russian act, even if the term “foreign agent” was not used in Hungary.

The Venice Commission has also expressed their doubts about the compatibility with democratic principles of the Hungarian Law because it “will cause a disproportionate and unnecessary interference with the freedoms of association and expression, the right to privacy, and the prohibition of discrimination”, also considering the Hungarian context.¹³ Indeed, some pro-government media launched a campaign called “Let’s Stop Brussels” in order to discredit the NGOs funded by the EU.

Right after the Law came into force, the European Parliament adopted a resolution on the situation in Hungary, arguing that the Law has led to “a serious deterioration of the rule of law, democracy and fundamental rights over the past few years, inter alia, freedom of assembly and association, restrictions and obstructions to the activities of civil society organizations”.¹⁴The European Commission also expressed its concerns about the discriminatory treatment of the NGOs and the campaign to discredit them, pointing out that “independent civil society groups are a hallmark of a democratic society”.¹⁵

There are several examples of Hungarian and international NGOs damaged by this legal measure. The best example is probably the case of the NGO Power of Humanity Foundation, which operates in the field of education. First targeted by governmental propaganda, in June 2020, PHF was denied access to EU funds by the Hungarian public foundation because it was accused of not complying with the Law and receiving illegal funds from abroad.¹⁶

Immediately, PHF filed a lawsuit against the Hungarian government before the European Court of Justice.
In September 2020, the European Court of Justice defined the Law “discriminatory and unjustified” against the activities of PHF and other NGOs, requesting the Hungarian government to repeal it.¹⁷ After pressure from Europe, Hungarian President Victor Orbán announced that the government was revoking the Law on the 1st July 2021.¹⁸

Italy: The “closed ports” policy

On the 14th June 2019, the Italian Parliament approved the “Decree on Urgent Dispositions about Security and Public Order,” also known as “Security decree bis,” approving the legislative text proposed by the Minister of the Interior Matteo Salvini, a great supporter of the politics of “closed ports” against the search and rescue activity of various NGOs in the central Mediterranean.¹⁹

The Security Decree bis gives a wide power to the Minister of the Interior to “restrict or prohibit the entry, transit or stop of any in the territorial sea. In case of the breach of the prohibition of entry, the captain and the owner of the boat are sanctioned with an administrative fine between 150.000 and 1.000.000 euros and the seizure of the boat”.²⁰

According to the International Commission of Jurists, the Decree presents different legal issues:

The Decree does not respect the UN Convention on the Law of the Sea

It makes an illegitimate distinction between Italian and foreign law, which is not admissible where a boat is in a situation of emergency. Indeed, it is not applicable to a search and rescue operation.

The Decree does not respect the Italian Constitution

Linked to the previous point, it is not legitimate because the article 117 of the Italian constitution affirms that the law must respects “the constraints deriving from international law”

The Decree interferes with the right of expression of the NGOs as it affects the right of a good reputation

Even if the term “foreign agent” is not used the NGOs operating in the sea are implicitly presented as foreign agents which are acting against the national interests of Italy, creating emergencies for public order.

Immediately after the approval of the Security Decree bis, there were many negative reactions, both internationally and in Italy. A panel of UN human rights experts argued that “The right to life and the principle of non-refoulement should always prevail over national legislation or other measures purportedly adopted in the name of national security.”²¹ At the same time, many NGOs expressed concerns about the Security Decree bis because it can force people to come back to Libyan coasts, where the Libyan Coast Guard has been sentenced several times for various violations of human rights.²²

In Italy, different NGOs quickly experienced the change in the law coming with Security Decree bis. A few days after the Decree came into force, the Italian authorities arrested Carola Rackete. Rackete is the German captain of the Sea Watch III, a ship belonging to the NGO Sea Watch, and carries out search and rescue missions in the Mediterranean. She entered the Italian harbor of Lampedusa, even if the Ministry of the Interior did not give permission, because she had 42 people on board, most of them with unstable health conditions, which were rescued 17 days before. However, Rackete was quickly released and did not face a legal trial because, during the preliminary investigation, the Court affirmed her “duty to safe lives”.²³

In August 2019, the Spanish NGOs Open Arms asked permission to disembark 160 people in Lampedusa after a successful operation of search and rescue, but Salvini did not give it, and so the people remained on board for 19 days in critical hygienic and living conditions. After this period, an Italian Court overturned Salvini’s decision, arguing that “international law has to prevail over national jurisdiction”.²⁴

These two court rulings made the Security Decree bis inapplicable by all the Italian courts and so, Salvini has given up to avoid entry into Italian ports for NGO ships.At the beginning of 2020, the new center-left government modified the Security Decree bis, reducing the power of the Minister of the Interior and the fines against NGOs’ search and rescue ships.²⁵

Foreign agent laws and hate-speech propaganda

Even though only in the Russian case the evocative term “foreign agent” is used, these three situations clearly explain how politicians such as Putin, Orbán, and Salvini try to shape the public opinion, finding scapegoats. Also, their objectives are clear: creating nationalist feelings that they can exploit to shrink the civil and political rights and reinforce their power.

To their purpose, NGOs are the perfect target of legal actions because these organizations often form transnational networks and often receive international funding. So, it is simple to label them as foreign agents that try to achieve foreign goals with foreign money acting against national interests. In addition, NGOs are often involved in projects and campaigns on democracy and rights, which the above-mentioned populist leaders may see as an obstacle to their objectives.

In all three cases, we must underline that the “foreign agent law” came into force only after a noticeable propaganda campaign against NGOs. Indeed, the opposition to NGOs has been a cornerstone of the political propaganda of these three leaders and has helped them gain broad political support. Thanks to this repeated propaganda based on hate speech and nationalist slogans, at least part of the public opinion had been ready to accept and sustain the legal measures against the NGOs.

Moreover, not only populist leaders have used this strategy of labeling as “foreign agents” their political opponents. Progressist leaders or state institutions of democratic countries have also attacked other political actors in this way, though not through foreign agent laws.

This has happened because the foreign agent law and propaganda have to be inserted in a broader context of rising tensions between East and West that could be defined as a new Cold War. So, if some actors are not aligned with what are considered the goals of a bloc, defining them as foreign agents could be a way to exclude them from the political arena.