Issued by Ismail Joosub on behalf of the FW de Klerk Foundation on 17/05/2024

As South Africa gears up for national elections, debates over free speech intensify amidst regulatory actions and legislative changes. This article explores the complexities of free expression during this critical electoral period, scrutinising recent developments like the FPB’s notice. These measures aim to curb hate speech and misinformation, but raise constitutional concerns, particularly regarding their impact on political discourse.

The Problem at Hand: Navigating Free Speech in an Era of Legislative Scrutiny

The notice gazetted by the Films and Publications Board (“FPB”) on 22 March 2024, was crafted with the upcoming national elections in mind: Clause 2 of the Regulations highlighted the “weaponisation of misinformation and disinformation during elections”, identifying potential risks such as the “incitement to violence” and the “propagation of hatred”.

Thus, the FPB sought to address the proliferation of “disinformation” and “misinformation”. As defined by the notice, “disinformation” constituted false information disseminated knowingly, while “misinformation” referred to false information disseminated unwittingly.  The notice concludes such “disinformation”, “misinformation” and “fake news” is illegal, because the FPB sees it as “prohibited content” in terms of the Films and Publications Act, 1996. Thus, it is a crime and penalties include a R150 000 fine and/or up to two (2) years’ imprisonment (section 24G).

Propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm are unprotected speech (s16(2)(c) of the Constitution). However, merely offensive speech on the other hand, is protected by the right to freedom of expression (section 16(1)).

The challenge, therefore, is that the FPB’s notice would have stifled legitimate political discourse and dissent. However, thanks to resistance from various quarters, including the FW de Klerk Foundation that raised concerns over the notice being ultra vires and unconstitutional, the FPB withdrew the notice on 26 April 2024. This underscores the complexities inherent in regulating speech.