Media Release: New South African regulation “criminalizing” fake news/disinformation about COVID-19

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On the 18th of March 2020 the South African governement issued a Government Gazette with a new regulation stating that fake news/ disinformation about COVID19 is now a criminal offence in South Africa. 
Regulations under Disaster Management Act Section 11:

(4) Any person who intentionally misrepresents that he, she or any other person is infected with COVID-19 is guilty of an offence and on conviction liable to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment.

(5) Any person who publishes any statement, through any medium, including social media, with the intention to deceive any other person about—

(a)  COVID-19; (b)  COVID-19 infection status of any person; or (c)  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 six months, or both such fine and imprisonment.

 

Here is Media Monitoring Africa’s default position on the matter:

1. Our default position is that we always treat any effort to criminalize speech with the greatest level of caution, precisely because it impacts freedom of expression.

2. One of the first aspects we looked at is whether government has the power to create what is essentially a new crime – the view from the experts is that while it is potentially not wonderful, they think the disaster management act would enable the regulations to be constitutional. It is also not always the case that public consultation is required, and they are of the view that in the current instance no court would want to say over turn it on that basis.
3. The clause has been narrowly drafted, so unlike so many countries that ban disinformation generally or talk to spreading false information the clause has been narrowly defined. This is important for the test of constitutionality.
4. The clause imposes a high standard and burden on the prosecution as it would have to prove intention.
5. The clause is clever in that it talks to intention to deceive, not only is this a high bar for the state it is also very narrow as it excludes someone for example who re-tweets something that may be false.
7. The issue of falsity has also been excluded, at least directly.  The section says you must intentionally deceive, but you can only deceive on the basis of something that isn’t true.  Again what it does is ensure that it doesn’t set it up in a manner that a Minister gets to determine if something is false.
8. The real problem with the regulation is implementation and policing.  What we really don’t want is a special unit being set up within SAPS to go hunting for violations.  It is also exactly why we set up Real411.  Using the Real411 system enables anyone who wishes to report mis or disinformation and it will be assessed and if found to be disinformation can be taken down and we can also put out a counter narrative.  For us the issue is to quickly combat the spread and ensure people do not keep re-sharing. Real411 system works to do this, we urge all South African citizens to use the platform.
For more information, contact:
William Bird
011 788 1278
williamb@mma.org.za

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