COVID-19: What happened to our Right to Freedom of Expression amid “Fake News” Allegations?

The South African Government had been going on literally a witch-hunt against, what it calls, as fake news about the COVID-19 pandemic and resultant Lockdown, it is claimed.

My obvious question was that how does the SA Government know that something spread on social media is indeed fake news or not? Seemingly the SA Government has taken our basic right of freedom of expression on holiday and is advocating to everyone through the mainstream media that everything that challenges the idea of a COVID-19 pandemic and the State’s reaction towards it must automatically be considered as so called “fake news”.

This very same Government of ours who claims that it fought for the freedom of all and couldn’t wait to get rid of censorship of all pornography and uplifted banned movies which carried harsh criminal prosecution during the years of Apartheid, is now going after all circulators of alleged fake news about COVID-19 which could be postings protected under Section 16 of the Constitution of the Republic of South Africa, 1996.

“We are stepping up our campaign against digital misinformation, particularly in relation to COVID-19 and related actions such as the national lockdown,” said Acting Minister of Communications Jackson Mthembu in a statement on 15 April 2020.

The Minister also stated further that a hi-tech monitoring and evaluation process has been put in place to assess complaints and reports from the media, the public and other sectors of society, with the ability to take down fake news items on a range of platforms and submit cases to the SAPS for investigation and prosecution.

Isn’t it astonishing how the Government is now suddenly cramping down on the circulation of so called fake news and even able to pinpoint the suspect accurately, but strangely during normal times the authorities doesn’t even have the capacity to properly investigate criminal dockets where the same technology could have pin-pointed the real criminals as well?

That was a rhetorical question and it’s simply my opinion that the Police can easily implement the same hi-tech to catch criminals, but is either too lazy or corrupt to do it where allowing elite criminals to flourish contributes to the annual informal GDP of this country.

Back to the problem I have by arbitrarily declaring news as “fake news” without a Court of law declaring such a post as being fake first… Contained within the basics of democracy are the principles that a person is presumed innocent until proven guilty and no one may take the law into one’s own hands. Instead of telling the people that they are going after suspected fake news, Government is letting us know that what it finds that is not convenient to the version of the State during the Lockdown will automatically be considered as fake news which must be seen as a mass human rights violation which is creating fear amongst our people to refrain from engaging in any debate about the COVID-19 pandemic and forcing us to lock ourselves inside our homes until the dark clouds have passed. If being under house arrest is not enough, we may not even discuss what is happening now on social media which is the preferred way of affordable communication, it seems.

The mainstream media is also conveniently not highlighting the actual law Government is relying on to instigate this fear that all news about COVID-19 not in line with its plan is automatically regarded as fake news. Regulation 11(5) of the Disaster Management Regulations reads:-

(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.

The convenient part left out is “…with the intention to deceive any other person…” implying that the person who sent the media must have the intention to deceive any other person or else it would not be regarded as a criminal offence. If one merely receives a post on social media and out of ignorance, or a reasonable belief that it could be true, forward such a post in law it can’t be regarded as a transgression of the Regulations.

In criminal law the State must always proof beyond a reasonable doubt that an accused committed a crime of which the intention to commit such a crime must usually be present. Sometimes a person may be found guilty of an offence through gross negligence like in the case of culpable homicide, but this Regulation clearly says that the culprit had to on purpose either created a fake news posting and circulated it, or received fake news and notwithstanding that he knew that it was fake forwarded it to others. That makes a massive difference in what the mainstream media and Government are currently telling us.

It is also interesting how the Minister is claiming that Government is actually aggressively pursuing the total eradication of fake news involving COVID-19 for a violation which must include the intent to create fake news or knowingly forwarding it as fake news which is not only very difficult to proof but questions the sincerity of Government in actually doing the same during times of peace in other far more serious criminal cases too. Hopefully this hi-tech technology and procedures will survive the Lockdown, notwithstanding that I am personally aware that similar technology was already available in South Africa as early as 2002 some 18 years ago…

Section 16 of the Constitution of South Africa, 1996 states the following:-

Freedom of expression

16.(1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to—

(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Although our courts and specifically the Constitutional Court have dealt with this basic constitutional right over the years, the most important authority on the interpretation of this basic human right was established in the famous Constitutional Court judgment dated 8 April 2011 in The Citizen 1978 (Pty) Ltd and Others v McBride (CCT 23/10) [2011] ZACC 11; 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 (CC) (8 April 2011) where the legend Justice Cameron in the majority judgment stated at paragraph 80 thereof that “…the defence [of fair comment] protects criticism, comment or expressions of opinion on facts which are true, and relate to matters of public interest, and if they are such as any fair man might make on those facts.

In paragraph 81 the learned Justice went on confirming that “…In fact, ‘fair’ in the defence means merely that the opinion must be one that a fair person, however extreme, might honestly hold, even if the views are extravagant, exaggerated, or even prejudiced…

Then the applicable part to the matter of settling the right of freedom of expression the Constitutional Court said that “… [82] An important rationale for the defence of protected or ‘fair’ comment is to ensure that divergent views are aired in public and subjected to scrutiny and debate. Through open contest, these views may be challenged in argument. By contrast, if views we consider wrong-headed and unacceptable are repressed, they may never be exposed as unpersuasive. Untrammelled debate enhances truth-finding and enables us to scrutinise political argument and deliberate social values.

Considering the views of our apex Court in relation to freedom of expression, it is undeniable that we as the people have the right to distribute a post about COVID-19 we are of the view is required to discuss and determine its validity provided, off course, that those views don’t conflict with Sub-Article 16(2) of the Constitution.

Now what can we do to protect ourselves from being prosecuted posting about COVID-19?

Everyone has the right to talk about COVID-19 and engage in discussions about it. That is a basic constitutional right which the Government may not take away from us. There are conditions to this right in the form that one must also be responsible too.

Firstly, be reasonable and follow the basics to determine whether the post is fake or not. On 30 March 2020 I have published a brilliant article Quickly Distinguish between Real and Fake News: 10 Tips to Survive being Misinformed which could easily help you to distinguish between real and fake news.

Secondly, when posting information please add a phrase to the post that you have received this and are not sure whether this is true or not, but that you would like to discuss it’s authenticity. By doing that you immediately tell people that they should not automatically belief it and that it could turn out to be fake protecting you from criminal prosecution.

Thirdly, using voice messages on WhatsApp does not take too much data and is also much safer, but not necessarily prevent a breach, to enhance privacy and being illegally traced to its origins by anyone who interferes with that constitutional right. Typed messages are apparently much easier to trace, although I can’t confirm that.

I honestly don’t foresee that Government is actually aggressively pursuing fake news spreaders and basically is just warning people to be cautious of being misinformed in this tragic period we are all facing. By now we should be more disciplined in using social media and realise that although social media opened many doors for the human race, it also can be used as a dangerous weapon using ignorant and impulsive users who don’t care to create mass hysteria as we have experienced all over the world since the outbreak of COVID-19.

Whatever your view is whether the COVID-19 pandemic is real or whether it is a massive world conspiracy, please ensure that your posts are clearly marked as opinions and not facts and rather leave it to the recipient to decide what he or she thinks about it.

Stay safe.