These election social media posts could land you in jail in South Africa – or stuck with a massive fine

 ·4 Apr 2024

The Film and Publication Board (FPB) says it will punish South Africans who publish ‘fake news’, with the National and Provincial elections less than two months away.

Last month, the FPB published a notice which defines the terms “misinformation” and “disinformation,” declaring them to be propaganda for war, inciting imminent violence or potentially advocating hate speech.

Emma Kingdon from Cliffe Dekker Hofmyer said that any content distributed via any such medium, such as social media, would be considered an offence in terms of section 18H of the Film and Publications Act of 1996.

If found guilty, one could receive a R150,000 fine and/or a two-year prison term.

The notice defines “disinformation” as information that is false and where the person disseminating it knows it is false.

“Misinformation,” on the other hand, defines false information, but the person disseminating it believes it to be true.

Internet service providers (ISPs) who are aware that their services are being used for such content will have to report it to the FPB within 30 days of the publication of the notice (22 April 2024).

The ISP will also have to show what reasonable measures it is taking to prevent misinformation and disinformation from being distributed on its platform.

The obligation is imposed as an extension of section 27A(2) of the Act, carrying a penalty for non-compliance of a fine of R750,000 and/or a five-year prison term.

“The notice goes on to say that ISPs, ‘user-to-user services, including Social Media and Video Sharing platforms and search engines’ must ensure that their services do not breach section 18H of the Act ahead of the 2024 national elections,” said Kingdon.

“Within 30 days of the publication of the notice, these platforms must report to the FPB what reasonable measures they have put in place and the reasonable steps they have taken to prevent the dissemination of prohibited content during the elections.”

“Presumably, this part of the notice is intended to extend the ambit of section 27A(2) to social media platforms operating under the FPB’s jurisdiction but which may not be registered with the FPB, as is required of ISPs.”

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