THE « MONSANTO PAPERS »: ETHICAL SCANDAL OR STORM IN A TEACUP?
Revealing documents prepared in 2016 by the consulting firm, Fleishman-Hillard, on behalf of Monsanto on the matter of glyphosate, Le Monde relaunched the debate on the interest representation activity, also known as lobbying, and more specifically on the means used by the professionals to carry out their mission.
On May 9th, the daily newspapers broadcast two tables listing dozens of politicians, journalists and heads of public or professional organizations. The first table identified and classified them according to several criteria, especially their “credibility”, their “power of expression”, and their position regarding Monsanto’s requests on glyphosate. The second one, designed as the spearhead of the company’s lobbying strategy, which aimed at renewing the glyphosate registration for a period of 15 years, classified them in 4 different categories: “allies”, “potential allies to recruit”, “stakeholders to educate”, “stakeholders to monitor”.
These revelations provoked strong reactions and several institutions and people listed in these files have already lodged a complaint or seized the CNIL: Le Monde, France Télévisions, Radio France, the National Institute for Agronomic Research (INRA), or the National Centre for Scientific Research (CNRS). Policitians, like Ségolène Royal, denounced “reprehensible” practices, providing in passing a non-nuanced definition of the lobbying activity: “that’s what lobbying is, to know who to approach and to manipulate in order to change the outcome”.
A disproportionate reaction
We could be surprised by the violence of the controversy, this matter not being unprecedented. The mapping realized by Philip Morris in 2013 or the one made by Laboratoire Servier in the Mediator case in 2011 had for instance triggered impassioned polemics and pushed politicians to ask for more transparency in the lobbying activities. In France, this movement resulted in the adoption of laws in 2013 and 2016, to regulate them.
The astonishment could even be greater, that now all human activity is systematically based on the classification of individuals according to different criteria (consumption habits, socio-cultural categories, geography, age, sex …). To the point that the European Union has set strict rules on the constitution and management of data : the famous General Regulations on Data Protection (GDPR) transposed into French law in 2018.
Politicians themselves are permanent users of these categorizations, which are essential for winning elections or improving popularity polls. And it is clear that such files are necessary to any company, any NGO, any association or any firm carrying out an activity of representation of interests, acting for a cause. It is impossible not to wonder who might support the cause and who could be against it.
Therefore, the issue should not have been another debate on the legitimacy of lobbying but really whether or not Monsanto’s files, were lawful at the time they were established.
Monsanto, engaged in practices prohibited by French law?
Unlike what people could think about this case, we shall not discuss whether or not these files should have been created but really how they were created and the nature of their content.
The French association of lobbying and public affairs consultancies (AFCL), which CLAI is a part of, asserted after the publication of Le Monde’s article that the creation of the files and mappings likely to contain information about personality or authority’s positions was legal under certain conditions described by the penal code, the law on transparency in public life (2013), the Sapin II Law (2016) and the GDPR. One of the major conditions is the public nature of the opinion of those whose name is written in the files, that is to say parliamentarians, journalists and influencers. In many cases, in this task aiming to draw up a list of the potential allies or opponents, the fact of taking the job into consideration is enough: indeed, the position of the head of the Ministry of Agriculture will be different from the position of his counterparts of Health or Environment.
It will be up to the justice system to figure out whether or not Monsanto papers are legal. Nevertheless, it would be regrettable that this case relaunches the debate on an activity which is essential to the proper functioning of democracy.
The lobbying: an activity indispensable to democracy
Indeed, lobbying has been a part of the democratic debate for a very long time. The parliamentarians who vote laws, ministers, civil servants or government counsellors who prepare the draft texts or draft decisions do not necessarily have all the needed or sufficient information on every topic. It is then normal and appropriate that they can talk with the representatives of natural or legal persons before making a decision. Likewise, it is right for everyone to make their voice heard before any decision. And it is necessary for those who consider that it could be contrary to their interests to have the possibility to say it and explain why. In this capacity, interest representation is an indispensable tool of involvement in the decision-making process and its legitimization.
It is also because the activity of interest representation is necessary to the democratic debate that it has been progressively recognized and framed by the French legislation. First, codified by the by-laws of each of the two Houses of Parliament in 2009, it has since been regulated by two major laws: in 2013, the law related to the transparency of public life, which deals with “conflicts of interests” , and the Sapin 2 law in 2016, which marked a new stage with the creation of a digital register of interest representatives held by the HATVP. Interest representatives must now provide various information about their activity.
It does not mean that there is no progress to be made, in the light of the lessons learned from implementing these laws.
On May 15th and 16th, the “48h Chrono on lobbying” seminar was held, organized by Sylvain Waserman, member of Parliament elected in the Bas-Rhin region. A greater transparency in the practice of proposed “turnkey” amendments by certain interest representatives, the simplification of the definition of the interest representative and the adoption of a code of ethics: these were among the key propositions that were made during the debates.
CLAI supports these propositions, aiming at ensuring more transparency in this activity that remains indispensable to democracy.