Big questions about South African age restriction agency CEO

The CEO of South Africa’s Film and Publications Board (FPB), Mashilo Boloka, remains on precautionary suspension since 7 August 2024.

According to a spokesperson for the content classification agency, Boloka’s suspension is in effect until further notice.

Makhosazana Lindhorst, the FPB’s regulatory development and enforcement executive, is currently serving as acting CEO.

Boloka was appointed to the position in December 2022 after himself serving as acting CEO.

However, while Boloka was suspended in August last year, there was a situation in April where controversial regulations he published to police mis- and disinformation online were withdrawn by a different acting CEO.

The regulations would have forced South African Internet service providers and social media platform owners to police content for disinformation and misinformation or face criminal penalties.

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 dis- or misinformation.

Boloka signed the regulations on 1 March 2024 and published them on 22 March 2024.

Advocacy groups immediately slammed the new rules and threatened to take legal action against the FPB.

The regulations were withdrawn on 11 April by Ephraim Tlhako, the FPB’s technology and platform monitoring executive, while he was acting as the agency’s CEO.

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.

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

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 industry groups also argued that the FPB had no mandate to regulate misinformation and disinformation.

They said the agency 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 stated that the FPB was effectively declaring that mis- and disinformation were forms of propaganda for war, incitement of imminent violence, and hate speech.

The FPB 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.

Asked for an update regarding Boloka’s suspension, the FPB provided MyBroadband with its old holding statement from August.

“The FPB Council is handling the precautionary suspension of the FPB CEO in terms of the applicable policies and procedures,” it said.

“In this regard, the FPB Council cannot comment on any questions raised on this matter as it may jeopardise the process and impact his rights as the affected employee.”

The spokesperson assured that the FPB Council was giving the matter urgent attention despite the fact that Boloka had been suspended for nearly five months.

“The FPB will communicate with its stakeholders — including the media — as soon as the process is concluded. We urge your understanding and patience in allowing due process to take its course.”

Regarding Ephraim Tlhako serving as acting FPB CEO in April 2024, the FPB indicated that this was an entirely separate issue.

“Mr Tlhako signed the notice in the Government Gazette dated 11 April 2024 as Dr Boloka was attending the global age assurance summit,” the FPB said.