Podcast regulations in South Africa: A threat to free speech?

While some podcasters are mostly in support of the move to introduce regulations into the space, there are concerns about having their voices muted.

Portfolio Committee on Communication and Digital Technologies chairperson, Khusela Sangoni Diko, has explained that discussions surrounding regulating the podcast space aren't new and are part of an effort to ensure current legislation is kept up to date with the evolving technological landscape.

The discussion of podcast regulations re-emerged after well-known South African podcaster Macgyver 'MacG' Mukwevho was condemned last month for his offensive remarks about presenter, TV producer, and actress Minnie Dlamini.

MacG is the creator and host of “Podcast and Chill with MacG”, which is one of the top podcasts in the country.

He made crass assumptions about Dlamini's previous romantic break-ups, saying: "Bro, I'm telling you man. There's got to be something wrong with her; maybe her coochie smells or something. You know this happens, man, it happens, especially with the hot girls.”

While his commentary was not out of the norm for his platform, social media did not take kindly to his remarks.

Even Deputy Minister in the Presidency for Women, Youth and Persons with Disabilities, Mmapaseka Steve Letsike, condemned what he said as 'nauseating in its vulgarity' and a violation of Dlamini’s rights to freedom, security, equality, and human dignity.

Letsike committed to pursuing multiple avenues to hold Mukwevho accountable, stating that she will also escalate the issue to Parliament and the Minister of Communications and Digital Technologies for urgent regulatory review of online content that perpetuates gender stereotypes.

In an announcement on Tuesday, Dlamini said she received a direct apology from the “Podcast and Chill" attorneys but still intends to pursue legal recourse.

MacG recently commented on the matter in a recent episode, saying that they took podcasting to another level.

The furore sparked a debate about regulating such platforms, which prompted Diko to call for accountability in the sector.

Diko, however, highlighted that the discussion surrounding podcast platforms was not new or prompted by the MacG incident.

“Discussions about the regulation of Over-the-Top (OTT) services and online content services such as podcasts are not new, nor are they a reaction to one controversy or another. Legislation in the sector is outdated and wholly unsuitable for the challenges of a rapidly evolving technological age.”

Diko explained that the sixth Parliament sought to amend the Electronic Communications Act and modernise South Africa’s telecommunications sector. In 2020, the first draft policy framework, the White Paper on Audio and Audiovisual Media Services and Online Content Safety, was also developed.

“The committee is keenly waiting in anticipation of the finalisation of this White Paper, which will lay the ground for policy that will enable the promulgation of relevant legislation.”

Diko said there remains a need to ensure regulatory parity in the sector across OTTs, MNOs (mobile network operators), and broadcasters. She said the platforms that carry content cannot continue to be absolved from taking responsibility and accountability for the content they host, which is accessed by millions of South Africans.

“Podcasts in South Africa, for example, boast audiences in excess of 3 million people, and this number is expected to grow exponentially. The purpose of regulation must be to ensure that these platforms operate within the framework of the Constitution and applicable laws.

“They, like any other licensed broadcasters, must be held accountable to a set Code of Ethics and Practice that should govern an independent and free media.

“Regulations must, among others, ensure accurate, truthful, and fair reporting and commentary, curb the spread of obscene and vulgar content, promote and safeguard diversity, act as a bulwark against information disorders, including misinformation, disinformation, and misinformation,” Diko said.

“These platforms also cannot continue unabated, perpetuating online gender-based violence and bullying with no accessible avenue to recourse by those who are harmed.”

The host of the "Crushing on with Caryn" podcast, Caryn Welby-Solomons, believes that, like all publicly available content, podcasts have a responsibility to their audience.

“Ms Diko’s suggestions are not unreasonable, they declare that podcasts should be monitored in a similar way to television and radio. We’ve seen many injuries to persons rectified by complaints to the BCCSA, and she highlighted that right now, only people with access to lawyers and money can sue for defamation or hate speech.

“I agree that more needs to be done to prevent the spreading of negative speech.”

Award-winning performer and co-host of the "Coffee + Controller" podcast, Yaaseen Barnes, agreed that there should be regulations, as currently, the space is the wild west.

“No one has the freedom to say whatever they want, however they want, and not expect backlash from anybody. That is actually against the Constitution to be that free. While we do have our freedoms, there are also responsibilities that come with them…

“We need regulations. I don't know how they are going to do it, but we need regulations on podcasts,” Barnes said.

Host of “Cape Flats Stories”, ​​Stanley Jacobs, said that podcasting has given him a voice and the opportunity to interview a range of people. He worries that regulations could ultimately hurt the genuineness of them.

“On many occasions, I never thought I would sit with big politicians, celebrities, decision-makers, stakeholders, whoever, and ask them the questions that I want to ask.

“If there’s a regulatory body, does it mean that they're going to take that away from us, being, you know, asking the questions? The moment we start taking the genuineness out of something, that's when we start breaking it,” Jacobs said.

“That's going to be a problem if there's going to be a regulatory body. Are they going to be able to say, what are the things that we should do, are they going to censor what we're going to say, and who we should interview?

“Mainstream media only addresses certain things, whereas podcasting addresses everything. Podcasting is giving people from all over the opportunity to speak their mind, to be on a platform and sort of, you know, debate others, and get to the truth of the matter,” Jacobs said.

“In the day and age we're living in, people want to hear the truth. So, are we going to use the regulatory body to change the narrative?”

Jacobs suggested that if there were to be guidelines, they should speak to professionalism.

“Maybe things like that, such as how to conduct yourself and how to speak, but I think they should leave podcasting the way it is because people follow you for a reason. You have followers for a reason.”

Welby-Solomon added that if guidelines were to be in place, they shouldn't be long but simple enough to state that defamation and hate speech are not allowed.

“If you need to say misogynistic or racist things about other people to be creative, you aren’t really that creative in the first place. I think podcasts have the responsibility to influence their audience responsibly. Especially if they have a large platform. They can entertain their audiences without it resulting in hate speech or defamation. Everyone with a platform has a responsibility to use it wisely.”

Barnes added: “All of us, every person with a voice, not even a podcast, has the responsibility to use their platforms for good. You can also entertain; you just have to be smart about how to entertain within the guidelines.

“If people are spreading lies, then by all means, they must be called to account. I think it would grow a healthier platform and a healthier space for information to be spread if rules and laws were in place.”

Diko said that ultimately, there must be some level of market fairness and regulatory parity between OTTs, MNOs, and broadcasters.

“It must be remembered that when the White Paper was first gazetted, the proliferation of podcasts was not as widespread as it is currently. The issue was the sporadic emergence of online radio services, YouTube vlogs, and social media platforms. Podcasts only became widespread recently.

“The objective is to place some element of responsibility on those operating in that space, as well as the OTT service providers themselves, and to create industry fairness.”

Diko did stress that the threat that artificial intelligence (AI) poses needs to be considered.

“Obvious threats borne out of AI require a proactive and hybrid approach to regulation.

"For example, voice cloning isn’t just a threat to creators but to listeners, too, and a recent investigation in Canada found that software companies were using several podcasters’ content on YouTube to train AI bots.

“This response has demonstrated that there are clear regulatory gaps across the ICT ecosystem, which can only be resolved through a coherent, agile, and forward-looking policy and legislative framework. This will require a broader and multi-sector collaboration…” Diko said.

theolin.tembo@inl.co.za