Countries across the world have been implementing drastic measures to curb the spread of the novel coronavirus, and South Africa has followed suit by criminalizing disinformation related to COVID-19 during the “national state of disaster” – declared on March 15, 2020. The accompanying Disaster Management Regulations impose fines or imprisonment of up to 6 months for people who share false information on social media, and responsibility for removal thereof has been assigned to ISPs by a Ministerial directive.
In trying to find examples of infringing content, I need look no further than my own phone. According to the messages I’ve received during the last month, no less than six countries have already developed a COVID-19 vaccine, which we wouldn’t even need anyway if we just bathed in bleach while holding our breaths for 20 seconds. Also, this is all somehow the fault of 5G internet. I receive these messages from people across age groups, cities, and education levels, and on every platform I use. A couple are from my mom. And two weeks after we went on lockdown began, they remain unrelenting.
Even pre-pandemic, the spread of disinformation on South Africa’s social networks was a familiar problem. Fabricated statistics showing disproportionate attacks against white farmers circulated for a number of years, fuelling the “white genocide” myth that made international headlines. Significantly more distressing are the false narratives shared about immigrants in the country which sustain the rampant xenophobia that time and again results in loss of life. But South Africa has resisted the growing trend in the region and globally of enacting legislation against “fake news” – with good reason.
While countries like Singapore have introduced laws against disinformation, these laws are often arbitrarily enforced by officials against dissidents. However, South Africa’s robust protection of freedom of expression inhibits the government from going down this dark path. The Constitutional Court has described freedom of expression as a “guarantor of democracy” and our jurisprudence tends to reflect this. The South African Constitution entrenches the right to freedom of expression, including the “freedom to receive or impart information or ideas.” The right, however, expressly does not extend to propaganda for war, incitement of imminent violence, and hate speech. Accordingly, false information which does not fall under the exceptions is presumably a constitutionally-protected form of expression.
Although the Disaster Management Act, 2002 grants the government broader powers, any regulations enacted must nevertheless be consistent with the Constitution and, in particular, the Bill of Rights, and are reviewable by the courts in this regard. So is this limitation of freedom of expression imposed by the criminalization of disinformation constitutionally permissible? Section 36 of the Constitution permits the limitation of rights when circumstances demand, provided such limitation is “reasonable and justifiable”, taking into account factors such as the nature and extent of the limitation, and the purpose for its imposition.
The Disaster Management Regulations state:
“Any person who publishes any statement, through any medium, including social media, with the intention to deceive any person about –
- COVID-19 infection status of any person;
- Any measure taken by the Government to address COVID-19,
commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding 6 months, or both such fine and imprisonment.”
The Minister of Communications and Digital Technologies’s directive takes the limitation a step further, and has imposed a duty on ISPs to entirely remove such content from their platforms once it has been identified. She has not yet communicated how enforcement of this would interact with the otherwise comprehensive limitations on ISP liability in the Electronic Communications and Transactions Act, 2002.
Even so, the government has confined the scope of the offence to categories of false information relating to the pandemic, and not false information generally. This, at least, alleviates concerns that it will weaponize the criminalization of disinformation towards undemocratic ends, such as the stifling of criticism from the public, press and political opposition. Additionally, the regulations are temporary – the national state of disaster lapses after three months, if a relevant Minister fails to terminate it earlier.
A person will also only be liable if they had the “intention to deceive.” The State will have to show that the individual was aware the information was false, and shared the information for the purposes of misleading others accordingly. Therefore, good faith data modeling and projections, and our aunts on family WhatsApp groups, are unlikely to contravene the regulations.
But just because there’s no legal obligation to ensure the credibility of the information we share, doesn’t mean we don’t have a social one. The categories of false information enumerated in the regulations have the potential to result in physical harm, incite fear or discrimination, and derail public health efforts. AfricaCheck, an independent fact-checking organization, has been debunking coronavirus-related myths that have been circulating on social media across the continent – ranging from eating garlic and drinking baking soda as cures, to state-mandated murder of positive patients in China. In a country that ranks social media almost as reliable as traditional news outlets, coupled with an overburdened public healthcare system and a history of disease-related trauma and stigma, the impact of these messages on the general public cannot be underestimated. Since the government has been trying to widely disseminate scientifically-accurate information, in various languages, most notably via an AI-powered WhatsApp service that’s been heralded by the World Health Organization, we should verify the information we receive from other sources before sharing it with our social circles.
There have already been numerous arrests for contravening the regulations, including a man who warned people to stay away from his ex-girlfriend, who he alleged had tested positive for the virus, and another who posted a video of himself violating and mocking the Disaster Management Regulations. Activists and academics, however, are wary of how imposing and enforcing this limitation may impact the importance of the right to freedom of expression in South Africa in the future. But until the regulations are challenged before a court, we’re all better off thinking twice before hitting the share button.