Information Regulator expands its South African election probe to include Google and Musk’s X

Information Regulator chair Pansy Tlakula

A probe by the Information Regulator into Meta Platforms over South Africa’s recent general election has been expanded to include Google and the Elon Musk-owned X.

TechCentral reported in August that the Campaign for Free Expression (CFE) had lodged a complaint against Meta with the Information Regulator after the social media giant, which owns Facebook, Instagram and WhatsApp, refused an information request from the CFE.

Prior to the election, Meta representatives told TechCentral in an interview about the company’s strategies to deal with the threat of misinformation on its platforms related to the pivotal election in which the ANC lost its parliamentary majority for the first time.

The regulator has accepted these complaints, and all three complaints are currently under investigation

According to Information Regulator chair Pansy Tlakula, who was speaking at a press briefing in Johannesburg on Wednesday, all three companies – Meta, X and Google – refused to abide by requests for information made in terms of the Promotion of Access to Information Act (Paia). They did so, she said, on the general presumption that Paia does not apply to them “extraterritorially”, despite all three doing business in South Africa.

Google has agreed to meet with the regulator to discuss both parties’ concerns. Similar commitments from Meta and X have not been forthcoming.

The regulator said it aims to conclude such matters either through settlement or conciliation, with settlement the preferred option. Settlement happens between the regulator and the accused party. Failing that, the complainant is invited, along with the accused, to a conciliation process mediated by the regulator.

Affidavit

“The complainant has requested access to the records relating to the classification of elections, risk assessments concerning South Africa’s electoral integrity and the application of global policies to local contexts within these three entities. The regulator has accepted these complaints, and all three complaints are currently under investigation,” Tlakula said at a media briefing held in Johannesburg on Wednesday. All three complaints were lodged by the CFE.

In an affidavit to the Information Regulator, CFE executive director Anton Harber said the fact that Meta, Inc – the California-headquartered company – is itself not a registered South African entity cannot form a basis for the idea that it need not concern itself with constitutional rights in its dealings with the South African public, particularly where this engagement takes place within the country. To suggest otherwise would be to allow foreign companies to act lawlessly without consequence, which would be legally untenable, he said.

“Meta, Inc is a corporation organised and existing under the laws of Delaware in the US and does not have a legal presence in South Africa. Accordingly, Meta, Inc is not subject to Paia,” the company said in a letter sent by the law firm Bowmans, which TechCentral has seen. These same arguments, according to Tlakula, were given by both X and Google.

Anton Harber. Image: Wits Journalism

WhatsApp LLC, a Meta Platforms subsidiary, applied similar reasoning in a separate matter against the Information Regulator, which in 2021 launched an investigating into the internet messaging platform’s terms of service after noting alleged non-compliance with the provisions of the Promotion of Access to Information Act (Popia).

After conducting an investigation, the regulator found that WhatsApp used different terms of service and privacy policies for users in Europe compared to other jurisdictions, including South Africa. According to the regulator, the privacy safeguards for WhatsApp users in Europe are superior to those for the app’s users in South Africa.

The regulator subsequently issued an enforcement notice directing WhatsApp to comply with all conditions of Popia by updating its privacy policy. In the notice, it instructed WhatsApp to conduct a personal information impact assessment and to maintain the documentation of all the data processing operations it is responsible for under Popia in South Africa. Part of the enforcement notice relates to Paia legislation, too.

The regulator dismissed WhatsApp’s argument that Paia does not apply to it as a social media network

“The regulator dismissed WhatsApp’s argument that Paia does not apply to it as a social media network,” said Tlakula.

Responding to questions about the Information Regulator’s powers of enforcement, Ntsumbedzeni Nemasisi, executive for Paia enforcement, said that although Popia provides the regulator with more robust enforcement mechanisms, Paia is a much older piece of legislation that needs to be amended to give the regulator more powers of enforcement, including, perhaps, the ability to mete out fines.

The privacy policy matter against WhatsApp is a Popia matter, whereas the election-related investigation into Meta, X and Google is a Paia matter.

Read: Info Regulator slaps TransUnion with enforcement notice

“There was an issue of jurisdiction insofar as legislation is concerned. The position we have taken as the regulator is that if you are providing services in South Africa, you must abide by our legislation. We have sufficient jurisdiction to investigate complaints against international companies providing services in South Africa,” said Nemasisi. – © 2024 NewsCentral Media

Don’t miss:

Meta faces fight over South African election probe