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.