• Media Monitoring Africa and others have scuppered the Film and Publication Board’s plans to make misinformation and disinformation prohibited content during the elections.
• The five bodies outlined that the FPB’s notice in March was beyond the scope of its powers.
• On Sunday the FPB agreed to withdraw the notice.

Last month the Film and Publication Board (FPB) published a notice in which it outlined a new form of prohibited content – misinformation and disinformation.

According to the notice, posting misinformation or disinformation online could earn individuals a fine of up to R150 000 or two years in prison. The notice has been made available for comment and Media Monitoring Africa, the South African National Editors Forum, Campaign for Free Expression, the Press Council of South Africa and the SOS Support Public Broadcasting Coalition have submitted comments.

The respondents state in their comments that the comments from the FPB fall outside of its mandate. In fact, as per the group, the regulation of misinformation and disinformation falls beyond the scope of the Films and Publications Act.

“Further, the Notice seeks to introduce new definitions and prohibited conduct which have significant ramifications for freedom of expression, and it appears the new prohibited content is being introduced
by way of Notice, rather than proper legislative channels, subject to public participation,” reads the comments.

As outlined by the five organisations, the definitions of misinformation and disinformation made by the FPB are “manifestly vague” and appear to have been shoehorned in to fall under the definition of hate speech.

“Introducing such vague and overbroad concepts, which appear to be shoehorned into the existing definition of hate speech which attach significant liability for non-compliance, manifestly limits the right to freedom of expression, and unjustifiably so,” the group adds.

Further to this, the group writes that the FPB hasn’t gone through the correct processes in publishing this notice. For one, and we also struggled with this, the Notice appears to be presented as guidelines that are already set in stone. However, while the FPB can publish guidelines, it has to consult with the public before doing so, something that hasn’t been done.

In addition, the FPB says that the notice unlawfully extends the scope of Section 27A(2) of the Films and Publications Act and the FPB isn’t allowed to demand that ISPs police their networks to insure that a customer isn’t posting misinformation or disinformation. We had read this as intended for an ISP that was hosting a website containing misinformation. The fact that we and the group had different interpretations of this is exactly the problem with this notice.

The group implored the FPB to withdraw the notice by 4th April 2024 and on 7th April, the FPB did just that.

“The FPB has agreed to withdraw the notice purporting to set out obligations of internet service providers, platforms and others in respect of combating misinformation and disinformation. The agreement to withdraw the notice was prompted by urgent legal proceedings initiated by Media Monitoring Africa and others on 5 April 2024, arguing that the notice was unconstitutional in multiple respects,” writes Ellipsis.

We don’t expect this to be the last time that government tries to regulate misinformation and disinformation, but this attempt has been stopped in its tracks. Unfortunately, this also means that peddlers of misinformation, disinformation and outright lies have no punishment headed their way.

How the government aims to address this ahead of, during and after the elections remains to be seen.

[Image – karosieben from Pixabay]