Criminalising fake news about COVID-19

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

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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Why waving the apartheid flag is hate speech

Lavanya Pillay, an associate in my team at Webber Wentzel, and I recently acted for the South African Human Rights Commission who – with the Nelson Mandela Foundation – applied to the Equality Court for an order that gratuitous displays of the old South African flag – the apartheid flag – constitutes hate speech under the Equality Act, as it is known in its short-hand version.

We penned an article which appeared in Sunday Times on 1 September 2019, and which was based on our analysis below.

On Wednesday 21 August 2019, Phineas Mojapelo, the Deputy Judge President of the South Gauteng Division of the High Court, ruled that the display of the pre-1994 South African flag – the apartheid flag – constitutes hate speech. It was a powerful ruling and is one in a series of high profile hate speech cases which our courts have recently had to grapple with. You can read the decision here.

Earlier this month, SANEF and a number of journalists argued in the Equality Court that the EFF’s targeting of them amounted to hate speech.

Jon Qwelane is bringing a constitutional challenge before the Supreme Court of Appeal (SCA) to the hate speech provisions in the Equality Act following the publication of his article, “Call me names – but gay is not okay“.

And most recently, on Tuesday 27 August 2019, the Constitutional Court heard argument as to whether Cosatu’s Bongani Masuku had engaged in hate speech against Jews when he made threatening comments directed at “Zionists”. Judgment is awaited in all these other cases.

The challenge to the apartheid flag before the Equality Court was brought by the Nelson Mandela Foundation and the South African Human Rights Commission (SAHRC) following nationwide public demonstrations in October 2017, organised by Afriforum, against farm murders. During these demonstrations, some protestors displayed the apartheid flag.

The applicants sought an order declaring gratuitous displays of the apartheid flag to be hate speech, unfair discrimination and harassment under the Equality Act. ‘Gratuitous’ displays are those that do not serve any genuine academic, scientific, artistic or journalistic purpose – these receive protection in the Equality Act itself

Afriforum, who opposed the application, claimed that the Equality Act, in terms, only prohibits “words” which could reasonably be construed to be hate speech. According to Afriforum, the apartheid flag (a symbol) could not constitute hate speech as defined in the Equality Act as it did not amount to “words”. Afriforum had a point, if “words” is to be interpreted literally.

But in a demonstration of the potency of principles of constitutional interpretation, this literal approach was rejected by Mojapelo. The reference to “words” in the Equality Act must be given a generous meaning going beyond mere verbal representations. It is obvious that hate speech can extend beyond words. To hold otherwise would be irrational, would run contrary to the letter and spirit of the Constitution and the main purpose of the Equality Act which is to prohibit all hate speech (and not just “words”). So “words” does not only mean “words” but extends to non-verbal acts – such as displaying a flag.

The next step was for the court to unpack the meaning of waving the apartheid flag. Its dominant meaning was clear – these acts were an endorsement of the system of apartheid. In a particularly poignant paragraph of the judgment, Mojapelo said: “Those who display the Old Flag choose deliberately not only to display the apartheid discriminatory, divisive and oppressive flag; they also consciously and deliberately choose not to display the new democratic all-uniting non-racial flag. They choose an oppression symbol over a liberation symbol. … They intend to incite and awaken feelings of white supremacy against black people … They wish to remind black people of the oppression, humiliation, indignity and dehumanisation that they moved away from and do not wish to relive or return to.” ”

Mojapelo concluded that gratuitous displays of the apartheid flag satisfied the hate speech test in the Equality Act: a clear intention to be hurtful, harmful and to propagate hatred against black South Africans. It was therefore prohibited hate speech.

There are some – including Afriforum which is applying for permission to appeal the judgment – who say that the ruling undermines freedom of expression. But this is not so. Our courts have never held that the right to freedom of expression is absolute and trumps all others. It is expressly limited by the constitutional rights to human dignity and equality. Hate speech cases require courts to balance these rights in the context of the facts of the case and with an appreciation of South Africa’s repressive and ugly history. The apartheid flag case clearly struck that balance correctly. Gratuitous displays of the flag constitute hate speech, as Mojapelo held – even if all three requirements – hurtful, harmful and propagating hatred – are necessary for such a finding. On the free speech side of the balance, displays of the flag that are not gratuitous – such as using it to illustrate a news story on the case itself or in a satirical cartoon mocking Afriforum for losing the case would not constitute hate speech under the Equality Act.

But beyond the law, gratuitously displaying the apartheid flag is a callous act that has no place in South Africa. It is as bad, as Mojapelo said, as uttering the ‘k’ word. The apartheid flag case has made a significant contribution to our emerging hate speech jurisprudence. Judgements in the cases involving SANEF, Qwelane and Masuku will provide further clarity. Ultimately, the question in all these case is the same – has the legal line been crossed between free speech and hate speech.

[In the SANEF case and in the Masuku case, we act for the NGO Media Monitoring Africa, intervening as amicus in each case].

Manuel v Malema and the legal consequences of fake news

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 17^th 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.

Identifying suspects: Cliff Richard v the BBC, and SA law

Molebogeng Kekana and I recently wrote a piece for Daily Maverick on the famous UK privacy case where Cliff Richard successfully sued the BBC for privacy. You can read the case (if you have lots of time on your hands) here.

In our article, we also address the position in South African law – and in particular that it is in general a myth to say that the media cannot identify a suspect before he or she appears in court. By and large, this only applies to cases involving (i) children accused, and (ii) other accused where the crimes of extortion or sexual offences are concerned. In the former case, there is a general rule that the child cannot be named without the court’s permission. In the latter scenario, the identity of the accused can be revealed only when he or she has pleaded to the charge (though I maintain that this is probably unconstitutional).

We also mention the fact that the publishers of the book The Lost Boys of Bird Island decided not to the name the third National Party official implicated in the allegations in the book.

Read our article here.

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