Criminal Liability on Fake News

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Social media and fake news in particular are adding fuel to the sense of uncertainty during the Covid-19 lockdown, but fake news is also undermining the door to door screening campaigns that our Government has worked tirelessly to achieve. However, issues arising from the spread of fake news are not limited to South Africa, globally, other countries are facing the same problem.

There have even been some arrests – in India, Hungary and Kenya – of people who have spread fake news about Covid-19, using existing local laws. For example, in India, a person was reportedly arrested under the country’s Epidemic Diseases Act of 1897 for spreading false information and rumours about the Covid-19 virus (a fake Facebook post about someone undergoing treatment in a region in India).

Minister Nkosazana Dlamini-Zuma said that spreading fake news about the pandemic was a serious criminal offence and on 18 March 2020, regulations were issued in terms of Section 27(2) of the Disaster management Act. The relevant provisions of section 11 of the new regulation on fake news and misinformation state that, “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.”

In recent developments, media law experts believe that administrators of WhatsApp groups in South Africa must also be held criminally liable if fake news is shared in the group, but only if they are aware that the information being shared is incorrect. Von Seidels’ copyright lawyer Salomé le Roux explained that a precedent has been set in South Africa where a court held a person who was tagged in a defamatory Facebook post jointly liable for the defamation in the post. She said the ruling meant that anyone who participates in the publication or is part of the “publication chain” of defamatory material – or, under the disaster regulations, spreading of fake news – can be held liable. A WhatsApp administrator is deemed to be a part of the “publication chain” as he has created the group and has control over who is added and what is posted there. Le Roux told Business Insider South Africa that, “If someone posts something defamatory or false and the WhatsApp admin sees it and does nothing, it is the same as if he was tagged on a defamatory Facebook post, but did not remove the tag and remains associated with the post.”

It can be argued that it will be difficult to prove one’s guilt so when and how is one liable? Firstly, the accused must have published the information and secondly there must be intent. The principles of criminal law will be applied to assess whether the accused had any intention to deceive another person and the intent of the accused person must be proved beyond a reasonable doubt. There are three types of intent: 1) Dolus directus, where a person intended to deceive others by spreading false information; 2) Dolus indirectus, where a person did not mean to deceive others as they themselves believed the information to be true; and 3) Dolus eventualis, where a person could see the possibility of others being deceived but proceeded regardless.

It is important that the public is guided through the regulation in the simplest and most understandable way possible, and the consequences of not adhering to the regulation must also be clear. Fake news and other forms of misinformation about Covid-19 are prohibited. Any publication designed to deceive people is prohibited – and by “any” it means just that: via SMS, WhatsApp, Twitter, Facebook, online videos, other messaging and networking platforms. Therefore, the public must be advised to simply refrain from publishing, forwarding or creating fake news and misinformation about the pandemic, and that includes even being careful of reckless jokes within their social groups.

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