Globally, the COVID-19 (Coronavirus) pandemic continues to wreak havoc. South Africa is currently in the midst of a 21-day shut down that will continue until at least midnight on April 16 in an effort to curb the spread of the virus.
The exponential growth in internet access – more than half of South Africa’s population has some form of access to the internet1 – means that information is now accessible in an instant to more than 35 million people. Although the information age brings many advantages, one of the key disadvantages is the rise of fake news.
According to the South African government Coronavirus resource, there are three types of fake news:
Disinformation: Information that is false and deliberately created to harm a person, social group, organization or country for the purposes to influence public opinion or obscure the truth.
Misinformation: Information that is false but not created to cause harm or misleading readers.
Mal-Information: Deliberate publication of private information for personal or private interest, as well as the deliberate manipulation of genuine content.
However, in terms of regulation 11(5) of the Disaster Management Act (Government Gazette No. 43107 of 18 March 2020), the dissemination of fake news is only criminalised when it is published with the intention to deceive.
Regulation 11(5) reads as follows:
(5) any person who publishes any statement, through any medium, including social media, with the intention to deceive any 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 fine or imprisonment for a period not exceeding six months, or both such fine and imprisonment.
Therefore, if a person shares fake news on any medium (including WhatsApp and other forms of social media), it will be a criminal offence if that person is said to be acting with the intention to deceive another person about COVID-19, about the COVID-19 infection status of any person, or about any measure taken by government to address COVID-19.
As a result, even if a person shares something and thinks they may be helping, in theory, they may still be found criminally liable. The main targets of these new regulations are the creators of fake news, but sharing false information with a reckless disregard for the truth exacerbates the problem and entrenches false and misleading information; this conduct causes harm – it prevents the truth from being known, it causes panic, it potentially causes poor decisions to be made, and it usually also stirs up tensions in society.
Consequently, if a person shares content they know to be false, this could have criminal consequences – the SAPS has already arrested at least one person for this offence. Further, if a person recklessly shares content about COVID-19 that is false that could also result in criminal action. In addition, if a person denies the existence of the coronavirus, that conduct may also result in criminal prosecution. Police Minister Bheki Cele has warned against spreading false rumours on social media, and told ENCA – “We won’t spare you, we’ll take you”.
In this context, what does it mean to be acting with intention? In order to be found guilty of a criminal offence, a person must act with a guilty mind (the concept known as mens rea). Our criminal law operates on the basis that a person cannot be guilty of a crime unless that person knew that the conduct was unlawful (to be acting with mens rea – or put differently, to be acting with a guilty mind).
Briefly, in South African law, there are two forms of fault – intention and negligence. In relation to the criminal offence of sharing fake news in terms of regulation 11(5), intention is required; but in law there is more to the word intention than first meets the eye, it has an exceptionally technical meaning (recall the Oscar Pistorius case and the discussion regarding intention and dolus eventualis). In our law intention can broadly take three forms: 1) dolus directus which is intention as the word is intended – a person’s direct purpose; 2) dolus indirectus or indirect intention – where the outcome is not a person’s direct purpose, but the outcome was an inevitable conclusion; and 3) dolus eventualis which is neither the direct purpose or regarded as inevitable, but it is nonetheless foreseeable as possible.
Therefore, even if Karen on Facebook shares a fake news story without having the direct intention to deceive, the circumstances may well dictate that she is guilty even if it was not her direct intention – clearly, each case will turn on its own facts. But, the key message is be careful! Do not share anything that is not verified, especially if from an unknown source on WhatsApp, Twitter or Facebook – share only credible information. As a default position, assume everything you receive on WhatsApp or see on social media is fake until you have confirmed it via an official channel (or unless it is from a reputable news source). Ignore the scare-mongering voice note from some expert who claims to have an inside track; ignore the message that seeks to gain attention and sow division. Rather, obtain your information and news from an official source – the government, a NPC, a global institution, or some credible media outlet.
How do I report Fake News?
E-mail: fakenewsalert@dtps.gov.za
WhatsApp: 067 966 4015
See also, https://www.real411.org an initiative by Media Monitoring Africa.
Finally, report it to the social media platform in question.
This brief memorandum is intended to provide clarity in regard to what constitutes fake news in regard to COVID-19 and the ramifications thereof. This memorandum does not constitute legal advice.
By: Dr. Lee Swales (LLB, LLM, PhD) THOMSON WILKS INC.
E-Mail: lee@thomsonwilks.co.za
1. According to https://www.internetworldstats.com/africa.htm#za.
2. J Grant ‘Critical Criminal Law’ Chapter 14 available at http://www.saflii.org/images/criticalcrimlaw.pdf.
3. J Grant ‘Critical Criminal Law’ Chapter 15 available at http://www.saflii.org/images/criticalcrimlaw.pdf.
