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

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. The dissemination of prohibited content is a crime in terms of the Act and sanctions include a fine (of a maximum of R150 000) 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. It, thus, exceeds the powers conferred upon the FPB by the Act and is ultra vires:

Clause 2.4 of the notice states that under section 31(3)(a) of the Act the FPB identified that,

“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.”

The Act does not equate harmful or disturbing content with prohibited content, the way the FPB has done in its notice. Furthermore, section 31(3)(a) of the Act 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authorises the FPB to publish have to do with how it will determine what is harmful or disturbing in terms of the Act’s repealed Schedules 3 and 8- which had to do with legal content that was deemed inappropriate for children of certain ages.

“Thus, the Act does not authorise the FPB to publish a notice about misinformation, disinformation or fake news being 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,” says Daniela Ellerbeck, the Constitutional Programmes Manager at the FW de Klerk Foundation.

“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),” says Ellerbeck. “Notably, any regulations the Minister makes have to be subject to public participation and tabled in Parliament (section 31A of the Act).”

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