South Africa


The First Gag is the Deepest: Freedom of Expression after Corona Censorship

The First Gag is the Deepest: Freedom of Expression after Corona Censorship

Given the severe risk that Covid-19 poses, the usual opposition from civil society and media law experts to the government’s criminal prohibition on fake news has been notably muted. However, a Pandora’s Box has perhaps been opened and we need to be vigilant and monitor how it is implemented. It also raised the question: what other exceptions to the rule of freedom of expression are we willing to tolerate?

Spreading fake news can officially put you in prison. 

Last Thursday, in a move that made international headlines, government promulgated its first criminal prohibition on fake news. In short, any person who publishes any statement with the intention to deceive any other person about Covid-19, a person’s infectious status or government measures to address Covid-19 commits an offence.

In doing so, we sail into uncharted territory.  

Why is that? Well, it’s true that while some specific forms of lying are criminal offences (i.e. perjury and fraud), the right to freedom of expression generally gives South Africans the freedom to knowingly tell lies in public.

This is mostly not a problem, because the lies people tell usually don’t cause any harm. If someone wants to preach that Beyonce and Jay-Z are part of the Illuminati, or that aliens built the pyramids or that crystals can heal erectile dysfunction, well– it’s crazy, but as far as the law is concerned, go ahead. 

Obviously, false information can be harmful. If you look at the historic legacy of AIDS denialism, the risk created by the belief that vaccines cause autism or the obstructive effect of climate change skepticism on environmental action, it’s easy to see how damaging false information can be.   

But from a legal perspective, the law does not censure or censor liars. In the marketplace of ideas, the charlatan and the expert are equally entitled to stand on their soapbox to try to win the crowd.

Why is this the position in our law? Let’s look at the two sides to the argument. 

On the one hand, “fake news” is harmful to democratic life because it negatively impacts one’s ability to receive accurate information. This negative impact can be direct, where fake news directly contradicts true information which is then disbelieved. Or it can be indirect; where the sheer amount of fake news creates so much noise that it drowns out true information. 

“Fake news” effectively functions like propaganda which, in the political context, prevents South Africans exercising informed political choices to hold those in power to account. In a medical context, it could also lead to panic or people adopting harmful treatments instead of treatments backed by evidence and research. 

Accordingly, so the argument goes, freedom of expression is not unlimited, and if unnecessary panic or false beliefs are going to cost human lives, then the law should step in to prevent that.

On the other hand, banning fake news creates enormous potential for authoritarian abuse. Just like any variation on the basic insight that “power corrupts”, a law that allows those in power to silence critics or those with unpopular opinions, is ripe for abuse through selective enforcement, targeted bullying (exacerbated by unequal access to resources) and intimidation. 

Like so many constitutional questions, the problem generally doesn’t come up when a government does its job well, but rather, when such a law is in the hands of a government acting in its own self-interest. 

Then such a law is nothing but an instrument of oppression. 

One need only look at how politicians, corporates, celebrities or the rich already use defamation laws in an attempt to silence criticism or obstruct good journalism to realize the enormity of the potential risk that could also be posed to the publication of true information and the health of the information marketplace.

As such, the general consensus has been that when one balances the trade-offs, the harm created by laws penalizing fake news far outweighs the harms created by fake news itself in the long run, and that’s why laws criminalising fake news should be avoided. 

At least, that’s been the consensus until now. Such a significant potential threat is posed by the risk of false information regarding Covid-19 though (and the feared effect this would have on public health) that the authorities have decided to wade into those murky waters which have mostly been avoided by democracies. 

Given the severe risk that Covid-19 poses to public health, our economic well-being and civil stability, the usual opposition from civil society and media law experts has been notably more muted. Many seem to have instinctively felt that this is an incursion into the right to freedom of expression worth allowing and that sufficient safeguards are in place. Particularly, the limited shelf-life of the prohibition coupled with the requirement that one must have the “intention to deceive” arguably marks it as a proportional limitation of the right given the objective it seeks to achieve. I recommend Dario Milo and John Thiel’s excellent piece explaining the regulation, its likely constitutionality and possible downsides. I agree with their assessment.

But here’s the rub. Although a sort of Fake News Freedom of Expression absolutism seemed to be the orthodox position, this (initial) acceptance of Corona-Censorship shows however that there is at least one exception to this rule that we are willing to tolerate. And if that is indeed the case, then it naturally raises the question: what other exceptions are we willing to tolerate?

In the case of Corona-Censorship, the constitutional rationale which appears to underlie this new regulation seems to be that although there is a general high degree of harm posed to democracy by laws penalising fake news, the immediate risk posed to human life by Covid-19 related fake news outstrips the potential democratic harm of such a coercive power and therefore it is justifiable.

Perhaps Public Health is the one “obvious” category of exceptions worth allowing, because human life is directly endangered. But if harm to human life is the underlying rationale, then what do we do about other large threats to human wellbeing that are almost certain (albeit slower moving). Climate Change? Air pollution? Antibiotic resistance? HIV/Aids denialism? As Pandora’s Box creaks open, even the issue of corruption starts to circle the drain, given the undeniable harmful effect systemic corruption has on human life and well-being.  

Admittedly, slippery-slope reasoning is the last refuge of scoundrels, but perhaps we can’t bank on the assumption that this move to criminalize Covid-19 fake news is merely the exception that proves the rule.

As such, as we sail into this relatively uncharted territory, we’ll need to keep our wits about us. It is crucial that researchers, journalists, lawyers and civil society gather data, pool information and keep tabs on how this new law is enforced. 

As much as we can rely on jurisprudential theory to frame how we approach this issue, it is also important to treat this period as a legal laboratory to observe how it plays out in reality. 

And once the pandemic recedes and we try to return to business as usual (whatever the hell that is going to look like), we’re going to need to have a difficult conversation about what to do with the death of the old orthodoxy and the beginning of a world where, at least in some cases, fake news may be thought of as a crime. DM

Michael Laws is an advocate at the Johannesburg Bar. His speciality interests include media and information law.


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