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South Africa publishes regulations to control speech online ahead of elections

South Africa publishes regulations to control speech online ahead of elections

The South African Film and Publication Board (“FPB”) published regulations last week which are ostensibly aimed at tackling misinformation and disinformation through internet platforms, including social media, during the upcoming elections.

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In February, South Africa’s President Cyril Ramaphosa announced that general elections would be held on 29 May 2024. On 22 March 2024, FPB published a Notice of amendments to the Films and Publications Act (1996).

A week after FPB published its new regulations, lawyers for Media Monitoring Africa Trust, the South African National Editors Forum, the Campaign for Free Expression, the Press Council of South Africa, and the SOS Support Public Broadcasting Coalition wrote to FPB’s CEO to withdraw the regulations.

“Our clients have identified a myriad of concerns and challenges with the Notice … and submit that the Notice does not pass constitutional muster and should be urgently withdrawn,” the letter stated.

The regulations represent a masterclass in how to squeeze a litany of unconstitutional elements into one set of regulations. The Act under which it operates, the Films and Publications Act, offers no clear mandate for the FPB to regulate online content in this way.

“The [regulations] contain a multitude of problems. To begin with, there has been a failure to follow due process. To design and pass regulations and have them come into force with no public participation at all is a clear violation of the Promotion of Administrative Justice Act, but it is all the more egregious when it seeks to deal with new areas not covered anywhere else in the FPB mandate and which have no basis in existing legislation,” South African independent media outlet  Daily Mavrick reported yesterday.

The next fatal flaw is that the regulations introduce entirely new definitions for “misinformation” and “disinformation” which are worryingly vague. These imprecise interpretations could lead to the formation of new types of prohibited content, which could easily be exploited to stifle genuine voices and have a chilling effect on free speech.

The vagueness of definitions seems to be the latest fashion with governments around the world. In Ireland’s “hate speech” bill the terms “hate” and “hatred” are not actually defined in the bill. In the UK’s Online Safety Act, although the word “harm” appears hundreds of times in the text, there is a lack of clarity in the Act on its definition.

Vague restrictions on online content can easily be abused to silence dissenting voices and curtail legitimate criticism. Daily Maverick noted that this has already been seen in South Africa’s neighbouring countries where such legislation has been used more often to silence government critics than to counter disinformation.

South Africa’s FPB is a government department.  If free speech is allowed to be regulated by a government department rather than an independent body, and if a definition is allowed to be overly broad and vague, it will chill free speech and undermine our democracy.

The FPB’s attempt to extend its reach is concerning. The regulations place a significant burden on internet service providers (ISPs) who would be responsible for policing content and potentially face liability for failing to prevent the spread of “misinformation.” Open and robust public discourse is fundamental to any democracy, and these regulations threaten to stifle just that.

South Africa’s new regulations sound eerily similar to the European Commission’s recommended anti-disinformation measures for social media and search engines. The Commission expects the guidelines to be formally adopted this month ahead of EU elections and elections in 17 European countries.

Meanwhile, in the UK, Ofcom – the regulator tasked with implementing the controversial Online Safety Act that considerably restricts online speech – employed as many as 350 new staff in January, former Big Tech employees among them.

Featured image: South African President Cyril Ramaphosa

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