12 April 2024

Media Monitoring Africa and Others v Film and Publication Board and Others

Cases (Finalised), Constitutional & Administrative Law, Dispute Resolution & Accountability Mechanisms, Information Rights & Media Law, Strategic & Test Case Litigation

Case: Media Monitoring Africa Trust and Others v Film and Publication Board and Others (2024/037092)

Court: High Court of South Africa, Gauteng Division, Pretoria

Next hearing: N/a

Status: Finalised (impugned Notice withdrawn; matter withdrawn)

Last updated: 12 April 2024

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Case overview: The Media Monitoring Africa Trust (“MMA”), the South African National Editors’ Forum (“SANEF”), The Campaign for Free Expression (“CFE”), SOS Support Public Broadcasting Coalition (“SOS”), and the Press Council of South Africa (collectively the “Applicants”), represented by Power & Associates, instituted an urgent application against the Film and Publication Board (“FPB”) for an order declaring unconstitutional and setting aside a “notice” published by the FPB on 22 March 2024, under Government Notice No. 4526 of Government Gazette No. 50311, entitled “Notice in terms of section 18H and section 27A of the Films and Publications Act, 1996 (Act No. 65 of 1996), as amended” (“Notice”).

The Applicants argued that the Notice unconstitutionally purported to:

widen the definition of “prohibited content” in the Films and Publications Act, 1996 (“the Act”) to include “disinformation” and “misinformation”;
criminalise the distribution of “disinformation” and “misinformation;
empower the Enforcement Committee to impose fines on anyone it finds to have distributed “disinformation” and “misinformation”;
extend the obligations of “internet service providers” under section 27A of the Act to “user-to-user services, including social media and video sharing platforms, and search engines”;
impose an obligation on all such persons to report to the FPB within 30 days what “reasonable measures” they have to prevent prohibited content (“in particular misinformation, disinformation and fake news”) on their platforms “ahead of and during the 2024 National and Provincial Elections”; and
criminalise the failure to report to the FPB as above.

The Applicants noted in their Founding Affidavit that they are not opposed to lawful and careful efforts to curb the spread of misinformation and disinformation. However, regulating misinformation and disinformation, if done incorrectly, such as by imposing sudden, imprecise and heavy-handed criminal sanctions, comes at the unconstitutional cost of stifling public and political discourse and casting a chilling effect on the free flow of even harmless ideas and information.

As a result, the Applicants sought to have the Notice declared unconstitutional and set aside as it is ultra vires; irrational; void for vagueness; unjustifiably limits the right to freedom of expression; and unjustifiably limits political rights.

Following the initiation of the urgent application, the FPB withdrew the Notice, with effect from 11 April 2024, and tendered to pay a portion of the Applicants’ costs. As a result, the urgent application was withdrawn.

Advocates Ben Winks, Deborah Mutemwa, and Akhona Mehlo were on brief in this matter.

Court papers: