Under Someone Else’s Influence: How Georgia Got Its Law on Foreign Agents

By Maxim Krupskiy, Former Visiting Scholar of the Russia and Eurasia Program at The Fletcher School

Proponents of “foreign agent” initiatives, including in Georgia, regularly refer to international experience. But, according to lawyer Maxim Krupskiy, unlike the law in force in the United States or the draft being discussed in the EU, the Georgian version lacks a clear procedure for proving the legal connection between the actions of organizations that are recognized as foreign agents and the interests of a “foreign power.”

On May 1, 2024, the Parliament of Georgia passed the draft law “On Transparency of Foreign Influence” in the second reading. The deputies were not deterred by weeks of ongoing street protests. Supporters of the initiative, including Prime Minister Irakli Kobakhidze, claim that the bill is “European” because it is based on the ideas of “transparency and accountability” and that its adoption will bring Georgia closer to joining the European Union. Opponents of the bill call the document a “Russian law” and believe that its adoption, on the contrary, will hinder the process of Georgia’s European integration and will lead to the implementation of the Russian scenario of the fight against foreign agents—to the suppression of civil society and, above all, non-governmental organizations and independent media. In her turn, Georgian President Salome Zurabishvili supported the opponents of the initiative and promised to veto it if the bill was adopted by parliament, while European and American politicians expressed serious concern over the consideration of this document, which, in their opinion, could undermine freedom of speech, and called on the authorities to refuse to adopt it.

“Whose?” or “about what?”

The ongoing debate about which geopolitical forces are behind the reintroduction of last year’s draft law into the Georgian parliament and who benefits from it distracts attention from the initiative’s content and the assessment of its quality.

The document operates with such a concept as “an organization carrying out the interests of a foreign power,” but the draft law does not require any proof that the organization actually acts in foreign interests. It is enough that a non-profit organization or media outlet receives more than 20% of its income in the form of money and other property from a “foreign power” during the year. The inconsistency of this construction can be illustrated by an example from criminal law: it is as if the guilt of a suspect or accused of committing a crime is implied by default and he or she is sent to a penal colony without a criminal case on the merits and a conviction by a court.

Thus, the assignment of the status of “promoter of the interests of a foreign power” is based solely on the assumption of acting in someone else’s interests. At the same time, there is no way to defend against this assumption – neither non-profit organizations nor the media will be able to prove in court that they do not possess the characteristics of “promoters of the interests of a foreign power”, because such characteristics simply do not exist in the law.

Perhaps everyone would agree that a legislative initiative aimed at ensuring transparency should itself be extremely transparent. And here another problem of the Georgian draft law arises – it is absolutely unclear about the transparency of whose influence the authors of the document are trying to achieve. According to the text of the draft law, “foreign power” means not only foreign state bodies, but also foreign citizens, legal entities established not on the basis of Georgian legislation, and any other organizations founded in accordance with the provisions of foreign or international law.

In other words, a non-profit organization or media outlet that received more than 20% of its income during the year, for example, from grants from foundations in the United States, China, and India, and donations from several thousand foreign citizens from a couple of dozen countries, would fall under the definition of an “organization carrying out the interests of a foreign power.” It will not matter that the interests of donors may differ significantly and even contradict each other, not to mention that it will be impossible to determine in what part of its activities the recipient of income acts in the interests of each particular donor and in what these interests consist.

Thus, the effectiveness of the new law in terms of ensuring transparency of “foreign influence” and protection of Georgia’s sovereignty raises a lot of questions, while the probability of unjustified inclusion of non-profit organizations and media in the register of “promoters of foreign power interests”, on the contrary, seems to be extremely high.

Backward integration

Speaking in favor of the bill, Georgian Prime Minister Kobakhidze referred to European and American experience with foreign agent legislation. In particular, he noted that the US has much stricter transparency standards and that the European Commission approved its transparency bill in December 2023, the standards of which are also stricter than the Georgian version. On this basis, the Prime Minister concluded that the Georgian bill is based on European values, its adoption will bring Georgia closer to European integration, and the ruling Georgian Dream party is committed to the European path.

Arguments in support of “foreign agent” initiatives based on reference to international experience are quite common. Russian President Vladimir Putin has repeatedly referred to the U.S. Foreign Agents Act and even claimed that Russian legislation is more liberal than the FARA law in force in the United States. In February 2024, a similar position was expressed by Kyrgyz President Sadyr Zhaparov, who soon signed the Kyrgyz analog of the law on foreign agents. Russian Foreign Minister Sergey Lavrov recently made the same arguments in support of the Georgian bill, calling the scandalous legislative initiative “the softest” compared to its Western counterparts.

Nevertheless, such a comparison can hardly be called correct, given the significant conceptual difference between the above versions of the legislation on foreign agents. Perhaps the main difference between the Georgian initiative and FARA or the above-mentioned draft of the European Commission is the presence in the latter two examples of a fairly clearly described and provable legal link between the organization’s actions and the foreign principal’s interests. This element is mandatory for recognizing someone as a foreign agent or a promoter of foreign interests – the mere receipt of foreign funding in democratic countries does not automatically entail a recognition that an organization is acting in foreign interests.

If the Georgian initiative is to be compared with any foreign counterpart, the closest to it in terms of its legal structure is probably the Hungarian law of 2017, which also tied inclusion in the relevant register to the receipt by a non-profit organization of a certain amount of annual foreign funding. In 2020, the European Court of Justice ruled that this law unjustifiably infringed on individual rights and freedom of assembly.

The third reading of the Georgian bill in parliament is scheduled for May 17. However, official statements by Western politicians already suggest that it is unlikely that the adoption of this document will lead to a faster European integration of Georgia—rather the opposite. The disproportionate use of force against street demonstrators dissatisfied with the “foreign agency” initiative may complicate this process even more.

(This post is translated and republished from Forbes Russia.)