FPB: “MISINFORMATION/DISINFORMATION AND FAKE NEWS” CAN LAND YOU IN JAIL

Issued by Daniela Ellerbeck, Constitutional Programmes Manager, on behalf of the FW de Klerk Foundation on 9/04/2024

* Since the publication of this article and a letter by the FW de Klerk Foundation to the FPB, the FPB withdrew this notice on 26 April 2024.

On 22 March 2024, the Films and Publications Board (“FPB”) gazetted a notice identifying “disinformation”, “misinformation” and “fake news” as “harmful or disturbing” and concluded that it was “prohibited content” in terms of the Films and Publications Act, 1996. In terms of the Act, the dissemination of prohibited content is a crime and penalties include a R150 000 fine and/or up to two (2) years’ imprisonment (section 24G).

 

Notice is ultra vires:

The Foundation notes with concern that the notice appears to be based on a misapplication of the Act, for the reasons set out below. It, thus, exceeds the powers conferred upon the FPB by the Act and is ultra vires:

 

Reason 1 – Conflation of harmful or disturbing content with prohibited content:

Clause 2.4 of the notice states that under section 31(3)(a) of the Act the FPB identified, “misinformation/disinformation and fake news, as harmful or disturbing, due to its potential to propagate for war, incite violence, or advocate hate speech. Such material is therefore prohibited in terms of the Act.”

This confuses two different types of content in the Act with each other, namely:

  1. harmful or disturbing content; and
  2. prohibited content (which consists of propaganda for war, incitement of imminent violence and “hate speech”).

 

Harmful or disturbing content:

One of the Act’s primary objectives is to protect children from being exposed to disturbing and harmful content and from premature exposure to adult experiences (section 2(b)). To this end, the Act seeks to regulate its classification to allow readers/viewers to make appropriate choices (see sections 16(4) and 18(3)). In light of this, section 31(3)(a) empowers the FPB to publish the guidelines it will use to determine what is harmful or disturbing. This content is not necessarily prohibited.

Prohibited content:

The Act, in section 18H, prohibits propaganda for war; incitement of imminent violence and advocacy of hatred that is based on identifiable group characteristics and that constitutes incitement to cause harm (defined as “causing emotional, psychological or moral distress to a person… ”). This type of content is illegal.

Apples and oranges:

The Act does not equate harmful or disturbing content with prohibited content, as the FPB did in its latest notice.

 

Reason 2 – Notice also made in terms of repealed Schedules:

Section 31(3)(a) explicitly states that the guidelines the Act authorises the FPB to publish have to do with how it will determine what is harmful or disturbing in terms of the Act’s Schedules 3 and 8:

Now, both Schedules were repealed in 2009, but Schedule 3 had to do with imposing conditions on the publication’s distribution if it deemed necessary to protect children in the relevant age group against harmful or disturbing material:

Schedule 8, on the other hand, had to do with imposing age restrictions for films if it is necessary to protect children in the relevant age group against harmful or disturbing material in the film:

Thus, the notice is published in terms of the incorrect section of the Act (in which the Schedules have been repealed). This adds to reason 1 (above) to show that this section, under which the notice was published, cannot be applied to what is determined as being prohibited content, because the Schedules clearly have to do with legal content that is deemed inappropriate for children of certain ages.

In other words, the Act does not authorise the FPB to publish a notice or guideline, or anything else, about what type of content (e.g. misinformation, disinformation or fake news) it sees as being prohibited content. The Act prohibits prohibited content, it does not prohibit content that has the potential to give rise to prohibited content. It also does not equate harmful or disturbing content with prohibited content, the way the FPB has done in its notice.

Furthermore, when it comes to anything that would have a substantive effect on the Act’s application of prohibited content, this rightly falls under the Minister’s regulatory powers (section 31(1)(e) of the Act). Notably, any regulations the Minister makes have to be subject to public participation and tabled in Parliament (see section 31A of the Act).

In short, the Act does not give the FPB any power to publish a notice that has to do with prohibited content. In doing so, the FPB overstepped the limits of its power and contravened the principle of legality, which states that every sphere of the Government, including the FPB, cannot wield powers or perform functions beyond those that have been legitimately conferred upon it by the law (see Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998 (1) SA 374 (CC) at para 58).

The notice is, therefore, ultra vires and the FW de Klerk Foundation urges the FPB to withdraw it immediately.