Several media monitoring groups are challenging the new Film and Publication Board regulations. Picture: Oupa Mokoena/African News Agency (ANA)
Several media monitoring groups are challenging the new Film and Publication Board regulations which, among others, criminalises the distribution of “disinformation” and “misinformation” ahead of the elections.
The Media Monitoring Africa Trust, the South African National Editors’ Forum and others are expected to turn to the Gauteng High Court, Pretoria, on April 23 in an urgent bid to set aside a far- reaching notice published by the board on March 22.
The applicants will argue that the notice unconstitutionally purports to widen the definition of “prohibited content” in the Films and Publications Act, to include “disinformation” and “misinformation”.
The applicants say that the notice aims at criminalising the distribution of “disinformation” and “misinformation" and empowers the issuing of fines on anyone it finds to have distributed “disinformation” and “misinformation.
It also imposes an obligation on internet service providers to report to the Film and Publication Board within 30 days what “reasonable measures” they have taken to prevent prohibited content - in particular misinformation, disinformation and fake news - on their platforms ahead of and during the 2024 general elections.
The applicants noted in their court papers that they are not opposed to lawful and careful efforts to curb the spread of misinformation and disinformation.
However, they said, regulation, if done incorrectly, such as by the sudden imposition of sudden, imprecise and heavy-handed criminal sanctions, comes at the unconstitutional cost of stifling public and political discourse. It also casts a chilling effect on the free flow of even harmless ideas and information, they said.
Willam Bird, director of Media Monitoring Africa, said in an affidavit that the applicants accepted that the spread of misinformation, and particularly disinformation, poses serious threats to society’s well-being, especially during election season and even more so in the age of social media.
“The applicants are thus not at all opposed to lawful and careful efforts to curb the spread of misinformation and disinformation”.
Doing so, he said, is a disproportionate means to achieving the purpose of protecting the integrity of elections from misinformation and disinformation .
“A haphazard and heavy-handed attempt to regulate the spread of misinformation and disinformation could produce an unduly repressive regime that undermines the very fabric of our hard won constitutional democracy.”
Bird said there was no prior opportunity for the public to comment on a draft of the notice. It was simply published without warning and with apparent immediate effect.
The applicants, before turning to court, had issued the board with a request to withdraw the notice. The Film and Publication Board’s attorneys responded that the board stands by its position that it has the power to regulate occurrences sparked by prohibited content, including an election cycle as it introduces an unique set of circumstances.
The applicants said the notice is unconstitutional on five grounds, which include that it is vague and irrational. Bird said the notice defines disinformation and misinformation so vaguely that one cannot know with reasonable certainty what conduct falls within their scope.
He said it also unjustifiably limits the right to freedom of expression, as it casts a chilling effect on the free flow of harmless information. It also unjustifiably limits political rights as it inhibits political candidates - especially opposition candidates - from campaigning freely. It also inhibits the public from openly discussing and interrogating political candidates competing merits and claims, he said.
Bird said the application was urgent, as the notice created an electoral climate of fear and thus undermines the freedom and fairness of our national and provincial elections to be held in May.
The Film and Publication Board has yet to file papers.
Pretoria News
zelda.venterinl.co.za