Third parties can be held liable for spreading fake news

This week Western Cape resident Stephen Birch appeared in court, after he published a video of himself on social media in which he discouraged people from participating in Covid-19 testing because, he claimed, the swabs used by fieldworkers were contaminated with the virus.

He was charged with being in contravention of Section 11(5)(c) of the Disaster Management Act, which criminalises the distribution of disinformation through any medium on government’s efforts to tackle Covid-19.

The section also expands the sanction to anyone who publishes disinformation on Covid-19 and fake news about the infection status of another person.

National Prosecuting Authority spokesperson Bulelwa Makeke confirmed that since the start of the nationwide lockdown seven people have been arrested for spreading fake news related to Covid-19.

No case has been finalised yet. In six of the cases, two were referred for decision and four were postponed for further investigation, said Makeke.

Requests for information from Brigadier Vishnu Naidoo, spokesperson for Police Minister Bheki Cele, went unanswered. However, a report by Eyewitness News on Tuesday states that Cele said eight people had been arrested for spreading fake news.

When are you liable?

The regulations state that those who break the law will either be fined or face six months in jail, or both, but this has not abated the flood of false news about the virus being distributed on social media.

The messages range from claims that 56 people died in a church after a pastor made them drink Dettol to cure Covid-19, to false claims about President Cyril Ramaphosa issuing a directive for all foreign nationals to leave the country due to the rising number of Covid-19 cases.

Priyanka Naidoo, associate designate at Norton Rose Fulbright, explains that anyone who creates or even shares or forwards disinformation on Covid-19 could be held liable.

The two key criteria are the publishing of said information and the intention to deceive.

“The principles of criminal law will be applied to assess whether the accused had any intention to deceive another person,” said Naidoo. “The intent of the accused person must be proved beyond a reasonable doubt.”

There are three types of intent:

• Dolus directus, where a person meant to deceive others by spreading false information;
• Dolus indirectus, where a person did not mean to deceive others, as when they themselves believed the information to be true; and
• Dolus eventualis, where a person could see the possibility of others being deceived but proceeded regardless.

“Essentially, it will not be enough for a person to merely assert that they did not want to deceive another person by sharing a video about Covid-19 only infecting rich people or being cured by drinking tea, as examples,” says Naidoo.

“The point is that a reasonable person would at least foresee the possibility that another person may be deceived by the information that they have not verified to be true.”

Werksmans Attorneys director Jones Antunes advises that if a person is not sure of the truthfulness of a message they should not share it with others to avoid potentially committing an offence.

“Intention in criminal law is a wide concept and includes not only direct intention to mislead but includes also where the publication occurs in circumstances where the publisher of the statement subjectively appreciates that the publication may be misleading but nevertheless proceeds to publish without due regard to the consequences,” says Antunes.

Anyone found guilty of being in contravention of this regulation will have a criminal record against their name.

Digital fightback 

Social media platforms have also introduced updates to their platforms to try and slow the spread of fake news.

In a post on Tuesday, WhatsApp said it would limit how many times a user can forward messages that did not originate from a close contact. These messages are normally marked with double arrows to show that they have been forwarded from a chain of five or more people.

This comes after WhatsApp witnessed a spike in forwarded messages “which users have told us can feel overwhelming and can contribute to the spread of misinformation”.

Similarly, last month Instagram made updates to its platform to limit the disinformation people would be exposed to. This included removing Covid-19 accounts from recommendations that are not posted by credible health organisations.

According to Naidoo: “Further regulations issued by the Department of Telecommunications and Postal Services have also imposed obligations on any electronic communications licensees, [internet service providers] [and so on] to remove Covid-19 related fake news from all their platforms immediately after identifying the content as fake news.”

Media Monitoring Africa – in partnership with government, the South African National Editors’ Forum, the Press Council South Africa and other stakeholders – has launched a platform where people can report fake news.

The website, Real411, allows people to submit reports on questionable information on any digital platform and these will be reviewed, assessed and action can be taken.

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