FPB scraps rules about policing Internet misinformation after legal threats

The Film and Publications Board (FPB) has scrapped recently introduced regulations that would have forced South African Internet service providers and social media platform owners to police their content for disinformation and misinformation or face criminal penalties.

The controversial rules were withdrawn in a notice published in the national government gazette on 26 April 2024, signed by the FPB’s acting chief executive officer (CEO), Ephraim Tlhako, on 11 April 2024.

Tlhako’s regular position at the FPB is executive for technology and platform monitoring.

The notice of the new regulations was originally signed by FPB CEO Mashila Boloka on 1 March 2024 and published on 22 March 2024.

The regulations defined disinformation as “false information disseminated by someone who knows it is untrue” and misinformation as “false information where the person disseminating it believes it to be true”.

The notice prescribed heavy criminal penalties for distributing disinformation and misinformation, with fines of up to R150,000 and two years imprisonment.

Under the regulations, ISPs could face fines of up to R750,000 and five years in prison if they failed to notify the FPB within 30 days of becoming aware that their services were used to disseminate disinformation or misinformation.

The regulations were slammed by several advocacy groups.

Media Monitoring Africa, the South African National Editors Forum, the Campaign for Free Expression, the Press Council of South Africa, and the SOS Support Public Broadcasting Coalition threatened legal action unless the FPB withdrew the notice by 17:00 on 4 April 2024.

The parties were particularly concerned that the definition of misinformation was overly broad by including people who unknowingly said something false.

In addition, they maintained that the FPB had no mandate to regulate misinformation and disinformation, and that it was effectively trying to enact new legislation without following proper Parliamentary procedure or the required public consultation processes.

Cliffe Dekker Hofmeyr consulting media and technology law specialist Emma Kingdon also explained that the FPB was effectively declaring that mis- and disinformation were forms of propaganda for war, incitement of imminent violence, and hate speech.

These crimes were then used to determine the penalties for disseminating such information.

The agency had also attempted to extend its powers over ISPs to platforms like Google, Facebook, and YouTube.

This includes having them register with the FPB and demanding that they give feedback within 30 days regarding the steps they were taking to prevent propaganda for war, incitement of imminent violence, and hate speech.