Criminalising fake news about COVID-19

posted in Access to information, Censorship, Fake news, Freedom of expression, Media law, Musings on Media on by

Criminalising fake news is usually not a good thing in a democracy.   These kinds of laws have frequently been abused by authoritarian regimes to punish critical reporting.  As panic about the spread of COVID-19 around the globe set in, so too did the dissemination of false information about the pandemic.

The South African government’s response was to create a criminal offence in its regulations issued last week about the pandemic.

While these regulations were being passed, somewhat ironically, I was on a panel at Webber Wentzel (streamed live over Twitter but not open to the public on account of social distancing guidelines) where Media Monitoring Africa relaunched its Real 411 campaign.  This campaign inter alia seeks to address disinformation on digital media.  I was honoured to share the panel with retired Constitutional Court judge Zak Yacoob – one of my favourite judges – and my former Webber Wentzel colleague, the brilliant Avani Singh.   You can watch a news report about the relaunch here and visit the Real 411 site here

Johan Thiel and I penned a piece for Daily Maverick on the South African government’s false Covid-19 news regulations.  The piece is here.  It was also republished by the UK media law site Inforrm here.

Another interesting piece on the issue is Advocate Michael Laws’ well-argued article in Daily Maverick, with a catchy title including “Corona Censorship”, here

I reproduce our Daily Maverick piece below.  The bottom line in my view is that whatever the wisdom of the fake news law, it would probably in this specific and exceptional context pass constitutional scrutiny.  This is not at all to say that false news laws generally are justifiable; they are not.  But this law sets the bar for prosecution very high – essentially only publishing information you know to be false about COVID-19 would be punished.   Freedom of expression cannot, at least in this context, be used to justify the publication of statements that the speaker knows to be false, and with the intention to deceive the public.

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Snowden, Sam Sole, Sutherland and Surveillance

posted in amaBhungane, Bulk surveillance, Freedom of expression, Media law, Musings on Media, National security, Openness, Privacy, Privacy Law, RICA, Surveillance on by

This week, the Pretoria High Court handed down a momentous decision on South Africa’s surveillance laws that made international headlines.  You can read the judgment here: http://www.saflii.org/za/cases/ZAGPPHC/2019/384.html

Indeed, in response to a tweet by Privacy International about the judgment, the best known modern whistleblower in the world, Edward Snowden, tweeted, ‘Wow’.

The decision has – at least for now – outlawed bulk surveillance in South Africa, and also declared a number of provisions in South Africa’s legislation permitting surveillance – known as RICA – unconstitutional.  Next step is the Constitutional Court.

I was lead attorney in the case for the applicants, the investigative journalists at amaBhungane, and Sam Sole, its co-managing director, who was placed under surveillance in 2008 simply for doing his job.  Sam’s take on the case, an excellent read, is available here: https://www.dailymaverick.co.za/article/2019-09-18-analysis-inside-amabhunganes-landmark-ruling-on-surveillance/

Here’s my summary of the case below, which was published in Business Day this week here:   https://www.businesslive.co.za/bd/opinion/2019-09-17-landmark-rica-ruling-impresses-even-ultimate-whistle-blower-edward-snowden/

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Manuel v Malema and the legal consequences of fake news

posted in Defamation, Fake news, Freedom of expression, Media law, Musings on Media on by

The recent judgment of the High Court in Malema v Economic Freedom Fighters – available here is a very significant judgment in our defamation jurisprudence. I wrote an article for Daily Maverick – available here – which is my take on the judgment (and bear in mind that I acted for Trevor Manuel, the applicant, so full disclosure).

Here’s the article again:

“Fake news” – a term ironically made popular by Donald Trump – is a real problem for our democracy. This is not news which the publisher reasonably believes to be true because, for example, steps have been taken to verify the information.

Instead, “fake news” or disinformation, is news which the publisher knows is false, or is reckless as to whether it is true or false. Publishers who know they are publishing false news or are reckless about it, do not enhance any of the rationales for protecting free speech in our democracy. This is because lies do nothing to enhance truth-telling, individual autonomy or participatory democracy.

In the 17th century, the writer John Milton thought that the best way to deal with falsehoods was to leave them be; the truth would always out:

And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.

If such an approach was ever acceptable, it is certainly entirely out of place in our modern digital age. The reach and potency of disinformation means truth is frequently a casualty of our public discourse. One need look no further than the frequent tweets of the president of the United States to prove the point.

Given its findings, the judgment handed down by the Johannesburg High Court on Thursday in the case brought by Trevor Manuel against the Economic Freedom Fighters (EFF) can be viewed as a significant victory against fake news. It shows that there is a place for the law to hold those who publish fake news accountable. And it shows that the law has real bite when it comes to redressing the harm fake news causes to one’s dignity and reputation.

The facts of the case are well-known. They begin with the recommendation of the Nugent Commission that a new commissioner of the South African Revenue Services be appointed by the President to replace Tom Moyane. Judge Nugent recommended that candidates for appointment should be submitted to a private interview by a panel of members selected by the president. The panel would then make a motivated recommendation to the President on the suitability for the appointment of the candidate.

The Minister of Finance announced the appointment of the panel with Manuel as its chair. The panel ultimately unanimously recommended Edward Kieswetter, and President Ramaphosa in due course accepted the recommendation.

The EFF published a statement on its Twitter account, which at the time of the tweet had about 750 000 followers. Julius Malema tweeted the statement to his 2 million followers. The statement understandably was widely covered in the media. The statement stated in relevant part as follows:

The Economic Freedom Fighters objects to the patently nepotistic, and corrupt process of selecting the South African revenue services’ commissioner.

In February 2019, the EFF sent a letter, and Parliamentary questions to the outgoing President Mr Cyril Ramaphosa and Mr Tito Mboweni, to specifically ask why they are conducting the SARS selection process in secret. It is confirmed that a panel chaired by former minister, Trevor Manuel, conducted secret interviews to select the SARS Commissioner, and this goes against the spirit of transparency and openness.

It has now emerged that the reason is that, one of the candidates who was interviewed, and favoured by the panel, is a dodgy character called Edward Kieswetter, who is not just a relative of Trevor Manuel, but a close business associate and companion.

Kieswetter used to be a Deputy SARS Commissioner, unlawfully appointed to that position by Trevor Manuel, when Pravin Gordhan was SARS Commissioner.

Within a week of the statement, Manuel said a letter demanding that the EFF undertake to desist from publishing the statement, remove it from their public platforms, and apologize. The EFF refused, and the stage was set for the legal battle that followed. A semi-urgent motion was issued forthwith.

Manuel contended that the sting of the statement is that he acted correctly and in a nepotistic manner in recommending Kieswetter to the President. The EFF, on the other hand, argued that the essence of the statement is their concern about the lawfulness of the appointment process. The EFF pleaded the defamation defences of truth and public interest, reasonable publication and protected comment.

Judge Elias Matojane in the Johannesburg High Court began by referencing the trite proposition in the law defamation that two conflicting values are at stake – freedom of expression on the one hand, and the right to dignity, on the other.

The judge held that Manuel had satisfied the requirements for an interdict in our law: he had a clear right to protect his dignity; had suffered and continued to suffer harm his reputation through the widespread dissemination of the statement; and had no alternative remedy given the refusal to apologise or take down the statement. There was also ongoing harm to the well-being of the country “as the public labours under the misapprehension that SARS is led by a person who was appointed for nepotistic and corrupt reasons”.

Judge Matojane easily reached the conclusion that the statement was defamatory. The test is that of the “reasonable representative of users of Twitter who follow the EFF and Mr Malema and share his interest in politics and current affairs”. Such a reader would understand the tweet to mean that Manuel is corrupt, nepotistic and conducted the appointment process secretly in a deliberate attempt to disguise his familial relationship with Kieswetter. This understanding would undoubtedly tend to lower Mr Manuel’s reputation in society.

Moreover, said Judge Matojane, none of the EFF’s defences came to the assistance. They had failed to prove that the sting of the statement was true – ie that Manuel was corrupt and nepotistic. Manuel had recused himself from the interview with Kieswetter and had disclosed the fact that there was once an employment association between them. This was not proof that he was biased or acted in a nepotistic manner.

The EFF also failed to show that they had published the tweet reasonably. In this context, in a major development of the law, Judge Matojane held that the reasonable publication defence is not only available to the media: “Because of social media platforms like Twitter, Facebook and others, ordinary members of society now have publishing capacities capable of reaching beyond that which the print and broadcast media can“. But on the facts, this development did not assist the EFF. They relied on an undated SMS from a confidential source about Manuel’s alleged relationship with Kieswetter, and had taken no steps to verify the allegations, nor given Manuel an opportunity to respond before publication.

The final defence relied upon by the EFF was just as unsuccessful – the protected comment defence failed, held Judge Matojane, because the EFF could not show the underlying facts about Manuel were true. In any event, they acted with malice, because they published “with reckless indifference as to whether it was true or false”. They also kept the statement on line despite its falsity. This showed spite and animosity.

It followed that Manuel should be entitled to remedies for his harmed dignity and reputation. The Court awarded a package of vindicatory remedies. It declared the allegations about him to be false, unlawful and defamatory; ordered the EFF to remove the statement and apologise within 24 hours; and interdicted them from publishing a similar statement in the future. The Court also awarded Manuel R500, 000 in damages (which he intends to donate to VBS pensioners who were victims of the collapse of the bank), and punitive costs. The EFF have lodged an application for permission to appeal.

The Manuel case is of great significance in our jurisprudence. First, going by way of application and not trial proceedings afforded Manuel much quicker and meaningful relief.

Secondly, the Court’s application of basic defamation principles to social media should give pause to those knowingly, recklessly or unreasonably publishing false statements to a wide audience: there are serious legal consequences for publishing fake news. You remain accountable for your speech.

Thirdly, there will be no deleterious consequences for free speech as a result of the judgment. It has always been the case that a publisher who publishes the truth (in the public interest) or acts reasonably , or expresses opinions (even robust and extreme opinions), will be protected. We have patriots like Manuel to thank for the fact that we now have a constitutional right to free speech, and it should always be jealously guarded. This judgment does nothing to undermine that protection.

And finally, law can play a role in challenging fake news and reversing at least some of the harms the disinformation has caused. The decalaration of falsity relief, for instance, is a defamation remedy I have always thought to have great potential. It tells the public where the truth lies, and thereby corrects the public record for the good of our democracy. The law is only one tool – and an imperfect one at that – to address fake news, but the principles adopted in the Manuel case take our law in the right direction.

 

Inxeba – Court papers

posted in Classification, Culture, Film and Publications Act, Films, Freedom of expression, Media law, Musings on Media on by

Related image

March 2018 was a big month for the right to freedom of expression, and it was all about the right to screen the film Inxeba: The Wound.

On 28 March 2018, the Pretoria High Court (Raulinga J) reserved judgment in the application by the distributors and producers of the movie Inxeba: The Wound for a judicial review of the decision of the Film and Publication Appeal Tribunal to classify the movie X18.  The effect of the classification was that the movie cannot be screened except in adult premises. One media report of the day’s proceedings can be found here.

As an interim position, however, the parties had agreed earlier in March – reflected in an order of court on Tuesday 6 March by Tuchten J – that the movie could again be screened from Friday 9 March in cinemas on the basis that it is classified 18 – but not X18: see some media publicity here).

More dramatic developments followed in the evening of Thursday 8 March when the House of Traditional Leaders brought an eleventh-hour urgent interdict to stop the movie from being screened the following morning.  Judge Tuchten – still on urgent court duty in Pretoria – dismissed the application in the early hours of Friday 9 March and the movie was screened again from later that morning.   Here’s one article reporting on what happened that evening.

The substantive issues were argued in the full-day hearing  of 28 March (after the judge viewed the movie with the parties in the judge’s tea room on 26 March).  Here are the court records in the case for your viewing pleasure: the pleadings (ie the application, the founding affidavit, supplementary affidavit, answering affidavit and the replying affidavit); and the heads of argument:

Inxeba pleadings 20180319

Inxeba 1st and 2nd respondents’ heads

Inxeba Third respondents’ heads of argument 20180328

Inxeba Fifth and sixth respondents heads of argument 20180323

Inxeba amici heads

Inxeba applicants’ heads

Judge Raulinga said at the end of the proceedings of 28 March that he would deliver judgment as soon as he could.

I will keep you posted.

The Hate Speech Bill and satire

posted in Freedom of expression, Hate speech, Parliament on by

At the end of January 2017, comments on the Prevention and Combating of Hate Crimes and Hate Speech Bill were due.  I acted for some of our  leading stand-up comedians and satirists (including the cartoonist Zapiro) in making submissions on the harm posed by the Bill for legitimate satire.

I penned a piece for the Business Day, which was published on 21 February, and which summarized the issues that we dealt with in our submission (prepared by myself and two junior counsel at Group 621, Advocates Stuart Scott (until he left for the Bar, an associate in my team), and Itumeleng Phalane).   You can find the submission itself here, published on Columbia University’s Global Freedom of Expression and Information website (I am fortunate to be the South African free speech expert in this project).

Here’s my Business Day piece if you missed it:

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