Defend Truth


Covid-19: You have been warned – spread fake news, and you could go to jail


Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

The public must be advised to simply stay away from publishing, forwarding or creating fake news and misinformation about the novel coronavirus – and that includes being careful of reckless jokes disseminated within their social groups.

In 2017, Time magazine published a special edition, “The World Is Not Ready for the Next Pandemic” which addressed the extent to which nations had been preparing for the next pandemic or epidemic. In June 2019 Bruce Schneier wrote in the New York Times that the next pandemic will be fought on two fronts: “The first is the one you immediately think about understanding the disease, researching a cure and inoculating the population. The second is new, and one you might not have thought much about: fighting the deluge of rumours, misinformation and flat-out lies that will appear on the internet” (my emphasis).

In the current Covid-19 pandemic, the world was caught on both fronts. Third World countries will eventually be hard hit. Viral misinformation and fake news pose the biggest risk for the spread of the coronavirus in South Africa. If not attended to, fake news and misinformation will lead to tens of thousands of deaths. A solid strategy regarding the socio-political and economic discourse around the coronavirus – particularly the paucity of the normative framework to deal with fake news and misinformation – is sorely needed.

It should thus be welcomed that the Department of Cooperative Governance and Traditional Affairs (Cogta) has gazetted regulations that grant the government powers to act against those who deliberately endanger themselves and others during the pandemic. The new regulations prohibit deliberately infecting others with the coronavirus, or spreading fake news about the virus. The legislative machinery has been slow to react to the spread of misinformation and fake news – even before the coronavirus outbreak, no specific law or regulation existed to prohibit this spread. We had to rely on general laws of defamation, and laws against insults and hate speech to combat misinformation and fake news.

A case in point is the defamation case of Trevor Manuel v Economic Freedom Fighters and Others [2019], which attorney Dario Milo of Webber Wentzel called a significant victory against fake news”.

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.”

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.

First, fake news and other forms of misinformation about the coronavirus 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.

In simple terms, the regulations prohibit creating or spreading fake news about the virus. Second, the offence of spreading fake news is not conditional on being the originator of the fake message, unless you can prove a lack of intention or deliberate act to deceive another person. Be careful though: you may still be convicted for the offence under indirect intention (dolus indirectus) or eventual intention (dolus eventualis). It will not be enough to argue that you did not have the direct intention (dolus directus) to deceive another person.

Therefore, the public must be advised to simply stay away from publishing, forwarding or creating fake news and misinformation about the coronavirus, and that includes even being careful of reckless jokes disseminated within their social groups. The government is bestowed with the sole responsibility of disseminating or ordering the dissemination of credible information about the virus. If the information or communication transmitted has no endorsement by the government, treat it with caution. (In terms of section 10(1) of the new regulations, the authority to “issue directions to address, prevent and combat the spread of Covid-19 in any area of the Republic of South Africa” rests with the Minister of Health, Dr Zweli Mkhize or his departments, institutions or persons.

The punishment for fake news and misinformation is a fine, which has yet to be determined, or a prison term of up to six months – or both. This is relatively “soft”. Elsewhere, fake news peddlers have been subjected to very tough punishment.

In the People’s Republic of China, “Whoever fabricates false information on [a] dangerous situation, epidemic situation, disaster situation or alert situation and disseminates such information via information network or any other media, or intentionally disseminates above information while clearly knowing that it is fabricated, thereby seriously disturbing public order, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance; if the consequences are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.”

The Malaysian Anti-Fake News Act 803 of 2018, subsequently repealed five months after its passage on 2 April 2019, provided harsher punishment. It allowed for “a fine not exceeding five hundred thousand ringgit [about $122,702] or to imprisonment for a term not exceeding six years or to both, and in the case of a continuing offence, to a further fine not exceeding three thousand ringgit [$736] for every day during which the offence continues after conviction”.

I must hasten to add that the lesson learned from the repeal of the Malaysian law is that it was used arbitrarily and in a draconian manner. Just one month after the Anti-Fake News Act was enacted, a citizen was arrested and convicted for posting a YouTube video claiming Malaysian police took 50 minutes to respond to emergency calls in Kuala Lumpur after the shooting of Palestinian lecturer and Hamas member Fadi al-Batsh on 21 April 2018, while Malaysia’s inspector-general of police claimed response time was eight minutes.

Heidi Larson in 2018 predicted that “…the next major outbreak – whether of a highly fatal strain of influenza or something else – will not be due to a lack of preventive technologies. Instead, emotional contagion, digitally enabled, could erode trust in vaccines so much as to render them moot.”

Further, “the deluge of conflicting information, misinformation and manipulated information on social media should be recognised as a global public-health threat”. This is a warning that is shared by the World Health Organisation (WHO). The South African Minister of Health recently lamented that “fake news is making us sick”.

In the foreword to a January 2019 White Paper of the World Economic Forum by Peter Sands, Research Fellow at the Harvard Global Health Institute, he references the lesson of the boiling frog. 

“In this apocryphal story, a frog placed in cold water remains in the water as the temperature is gradually increased to boiling. In failing to notice the gradual but real change in its circumstances, the frog dooms itself to a catastrophic ending. Although frogs do not behave this way in real life, humans often do. Neurobiologically conditioned, as we are, to pay attention to stark contrasts and sudden changes, we often overlook slow-moving changes in our environments that may herald disastrous consequences… The evolution of infectious disease risk is one such change.”

Misinformation and fake news can be disastrous for South Africa, a country with a healthcare system that over years has been struggling to better itself.

As Sand says, “in a world of always-on news and ‘fake news’, fear spreads faster than any pathogen, sparking policy reactions, sharp changes in customer behaviour and deep anxieties among staff.”

You have been warned: STOP misinformation and the dissemination of fake news about Covid-19. DM


"Information pertaining to Covid-19, vaccines, how to control the spread of the virus and potential treatments is ever-changing. Under the South African Disaster Management Act Regulation 11(5)(c) it is prohibited to publish information through any medium with the intention to deceive people on government measures to address COVID-19. We are therefore disabling the comment section on this article in order to protect both the commenting member and ourselves from potential liability. Should you have additional information that you think we should know, please email [email protected]"

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