Controversy as internet service providers in South Africa to police disinformation or face fine, jail term

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THE Film and Publication Board (FPB) of South Africa recently sparked controversy following the proposed new regulations governing misinformation and disinformation in the country.

According to a notice published by the Government Gazette on March 22 and signed by FPB CEO Mashilo Boloka, the regulation is targeted at Internet service providers and social media platform owners to hold them accountable for content shared on their platforms. 

The notice also contained massive criminal penalties for distributing disinformation and misinformation.

Anyone found guilty of distributing such prohibited content faces a fine of up to R150,000 (N10,079,229) and zero to two years imprisonment.

The notice stated that Internet Service Providers who learn that their services were used to disseminate disinformation or misinformation face fines of up to R750,000  (N50,396,145) and five years in prison if they fail to notify the FPB within 30 days.

“Knowledge of the use of services of an internet service provider. – Where an internet access provider has knowledge that its services have been used for the hosting or distribution of content that amount to propaganda for war, incitement of imminent violence or advocating hatred based on an identifiable group characteristic and that constitutes incitement to cause harm, such internet service provider shall report to the FPB in writing , within 30 (thirty) days from publication of this Notice”, the notice reads.

The move has, however, drawn criticism from free speech and media advocacy groups. Their primary concern lies in the broad definition of “false information,” which could include content unknowingly shared as fact. They argue that this could shut down open conversations online and even punish people for honest mistakes.

William Bird, director of Media Monitoring Africa, slammed the FPB’s approach. He told 702 Talk Radio that “The FPB is trying to make a whole new crime without asking anyone,” Bird said in a recent interview.  

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 are calling out the FPB’s new misinformation rules with an ultimatum. They argue the rules are too broad and the FPB is overstepping its authority. They also threatened legal action if the FPB didn’t scrap the plan. They believe the agency is trying to create new laws without going through the proper channels.

Cliffe Dekker Hofmeyr the consulting media and technology law specialist at Emma Kingdon argues the FPB is overstepping by labeling both misinformation and disinformation as severe offenses like hate speech and violence incitement.  This approach, in Hofmeyr’s view, allows the FPB to unfairly punish people for spreading unintentional falsehoods with the same penalties reserved for serious crimes.

Hofmeyr goes on to say the FPB is flexing its muscles beyond its jurisdiction by demanding social media platforms submit reports on their content moderation efforts. This tactic, according to Hofmeyr, suggests the FPB is attempting to enforce new regulations without proper legal channels.

This situation shows the delicate balance between stopping fake news online and protecting free speech. While it’s important to fight misinformation, overly broad rules could silence important discussions and damage democracy. 

It’s important to note that the FPB CEO, Mashilo Boloka, defended the proposal on the Radio after the deadline from the media coalition ultimatum had expired.

He argued that the new measures are necessary to combat the spread of harmful content. Only time will tell how this controversy unfolds and what the ultimate impact will be on South Africa’s online and social media space.

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Amala is a tactical Fact-Checker, who is passionate about using Fact-checking to curb the spread of Misinformation and Disinformation which has become prevalent in the media space. She can be reached on X at muonweblessing and LinkedIn on Amala Blessing Muonwe

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