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.
As Covid-19 infections spread rapidly around the globe and governments everywhere scramble to limit infections, fake news about the disease on social networks has become a major problem.
There have even been some arrests – in India, Hungary and Kenya – of people who have spread fake news about Covid-19, using existing local laws. For example, in India, a person was reportedly arrested under the country’s Epidemic Diseases Act of 1897 for spreading false information and rumours about the Covid-19 virus (a fake Facebook post about whether someone was undergoing treatment in a region in India).
On Wednesday, Media Monitoring Africa relaunched its Real411 platform, which was originally set up during South African elections, to enable members of the public to report disinformation and other objectionable speech to a Digital Complaints Committee. The committee will have three members, one with legal, one with media and one with digital expertise; they will make a decision on the complaint. Retired Constitutional Court judge Zak Yacoob will sit as the Appeal Commission to adjudicate any appeals.
Given the recent egregious examples of disinformation about Covid-19 that we have already seen – such as the government planning to use helicopters to spray the whole of South Africa with chemical solutions or that consuming bleach or Dettol would ward off the threat of Covid-19 – it appears that the Digital Complaints Committee will have its work cut out for it.
But the government has now raised the stakes. On Wednesday evening, regulations under the Disaster Management Act 2002 were published in the Government Gazette. Under section 11(5) of the regulations, it becomes an offence to publish a statement through any medium with the intention to deceive about Covid-19, anyone’s Covid-19 infection status or government measures to address the pandemic. The penalty is a fine or imprisonment for six months, or both.
The first point to note about this offence is that it contains a high threshold – the state must prove that the person publishing the statement had the “intention to deceive”. This form of fault means that the publisher must not just have published something that is false, but have done so knowing that it was false and with the intention that others would be misled or deceived. In other words, its aim is to deal with deliberate lies or malicious falsehoods about Covid-19.
This means that it does not cover, for instance, media reports using models to predict the trajectory of the rates of infection, even if those predictions turn out to be wrong. It also won’t hit the publication of incorrect information by someone who does so innocently or even negligently – for instance, about a cranky home remedy alleged to cure Covid-19.
Indeed, this regulation would have been unconstitutional if it caught within its net innocent falsehoods; and that would in any event have created a chilling effect on freedom of expression. This is not to say that non-deliberate forms of false news about Covid-19 should be welcomed: of course there is a pressing societal interest in all of us knowing the true facts about Covid-19. But that is achieved by education and reliance by the public on reliable trustworthy sources of information, not prosecuting people for innocently getting it wrong.
The deliberate liar, who wants to deceive, is in a different category entirely.
The second feature about this law is that it applies to a narrow class of information – information about Covid-19, a person’s infection status and government measures to address the pandemic. So it is also distinguishable from those repressive laws that punish “false news” about anything, and which history has taught is often used to publish legitimate criticism of government and public officials around the world.
So it may well be a legitimate restriction of freedom of expression in the present context to deter fake news of this kind, which can be very dangerous in our society at the present time.
One issue is that, given that the crime has been created in regulations, they would have to be within the scope of the empowering legislation (the Disaster Management Act) to be lawful. While there is nothing specific in the Act to authorise a criminal offence of this kind, it might be argued to fall within the scope of section 27(2)(k) of the Act. This provides that the minister may make regulations concerning the dissemination of information required for dealing with the disaster. Alternatively, the state might seek to justify the regulations in terms of section 59(1)(a) of the Act, which provides that the minister may make regulations concerning any matter that is necessary for the effective carrying out of the objects of the Act.
Another issue is monitoring and enforcing this offence. Should the government be diverting scarce resources at this time to policing social media and prosecuting people? And how will they deal with anonymous false speech? Government’s intention here may well be to deter the more egregious lies about Covid-19 that have been doing the rounds, as opposed to manifesting an intention to police social media.
Whatever the position, what is clear is that the law is in any event a blunt instrument to address disinformation about Covid-19. There can be no justification for lies being spread as quickly as the infection spreads. But our best chance of informing the public about what is going on, and providing us with information that will save lives, is the free flow of accurate information from the government (which to its credit it has been attempting so far). And we all have a responsibility not to like, forward or retweet everything we read about Covid-19, not paying any attention to the source of the information.
If ever there was a time to interrogate where the information you are consuming is coming from, it is now.
Milo is a partner and Thiel a candidate attorney at Webber Wentzel.