ARTICLE 19 is deeply concerned about the impact of the South African Disaster Management Regulations on the right to freedom of expression in the country. With the Regulations, South Africa joined a dangerous trend of countries using the COVID-19 pandemic to enforce problematic ‘false information’ legislation. We call on the Government to abolish the Regulations and ensure that all COVID-19 related legislation meets international freedom of expression standards. Further, the South African Government is promoting a reporting system called Real411 that aims to deter people from sharing ‘false information’ under the threat of criminal sanctions. This can have a chilling effect on freedom of expression.
The Disaster Management Regulations
The South African President declared the national ‘state of disaster’ on 15 March 2020 due to the COVID-19 pandemic – a temporary measure in which certain rights are limited. It has been since extended monthly, together with the Regulations Issued in Terms of Section 27(2) of the Disaster Management Act, 2002 (2020) (the Disaster Management Regulations). While the Regulations have been amended several times, navigating these amendments is very difficult. Some rights groups have critiqued them on the basis that the Regulations are also very difficult to interpret.
ARTICLE 19 is concerned that the Disaster Management Regulations are a part of a broader effort to suppress ‘false news’ in South Africa, particularly in light of extremely problematic reporting and shaming mechanisms endorsed and promoted by the South African Government. At the outset of the pandemic, South Africa’s President declared the aim to “stop spreading fake and unverified news and creating further apprehension and alarm.” This measure joins a dangerous trend of countries using the COVID-19 pandemic to enforce ‘false information’ laws in the region.
While most aspects of the Regulations are intended to protect public health during the COVID-19 pandemic, Section 11(5) of the Regulations creates several content-related offenses with respect to publishing statements surrounding COVID-19. These offenses are punishable by fines or up to six months imprisonment. Specifically, Section 11(5) criminalises publication, in “any medium” of information with “intention to deceive any other person about” COVID-19, the COVID-19 infection status of any person; or Government measures taken in response to COVID-19.
ARTICLE 19 finds that these provisions are extremely problematic and fail to comply with international freedom of expression standards, in particular Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR). ARTICLE 19 points out that under these standards, any legislation restricting the right to freedom of expression must meet the test of legality, necessity, and proportionality, even in light of a public health pandemic. This requires that the limitation must be:
- Provided for by law, any law or regulation must be formulated with sufficient precision to enable individuals to regulate their conduct accordingly (requirement of legality);
- In pursuit of a legitimate aim, listed exhaustively as: respect of the rights or reputations of others; or the protection of national security or of public order (ordre public), or of public health or morals (requirement of legitimacy);
- Necessary in a democratic society, requiring the State to demonstrate in a specific and individualised fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat (requirement of necessity).
Protection of public health cannot be used as a pretext for imposing vague or arbitrary limitations. Moreover, ARTICLE 19 believes that legislative approaches are less likely to meet this threshold and that transparency, promotion of media freedom and a digital literacy public policy are better solutions to address the problem posed by disinformation.
Overall, ARTICLE 19 finds that the provisions of the Regulation do not meet these standards for the following reasons:
The offence under Section 11(5) of the Regulations is overly broad and therefore does not meet the requirement of legality under Article 19(3) of the ICCPR. ARTICLE 19 recalls that in their 2017 Joint Declaration, international and regional freedom of expression mandates have stated that “general prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’, are incompatible with international standards for restrictions on freedom of expression.” Further, in his 2020 report to the Human Rights Council on the protection of freedom of expression in light of COVID-19, the Special Rapporteur on freedom of expression warned against vague prohibitions of disinformation and called on States that do not meet international freedom of expression standards to “repeal them as a matter of urgency.”
In the case of Section 11(5), it is not clear what would constitute “fake and unverified news” in the first place. The intentionality requirement is also particularly overbroad, highly subjective, and subject to abuse. What is to one person an ‘intention to deceive’ may be to another an ‘intention to educate.’ It is extraordinarily difficult to objectively evaluate an intent to deceive, particularly with respect to information regarding a rapidly-changing public health emergency where information may be true at one moment but change in the next, or where ‘truth’ is not a binary measure because simply not enough information is known. Or, a statement could be mostly true. These determinations are incredibly subjective, and there are many instances where dissemination of ‘unverified’ information may be unwitting.
In general, ARTICLE 19 points out that the falsity of information is not a legitimate basis for restricting expression under international and regional human rights law and is inherently problematic. In particular, “falsity” or “veracity” of information is a complex problem, not least because more often than not, the line between fact and opinion is hard to draw. For this reason, banning and other legal restrictions on the sharing of ‘false information’ are open to abuse and can have a devastating impact on political discourse. Enacting a legal duty of “truth” would then create a powerful instrument to control the flows of information and ideas. Allowing public officials to decide what counts as ‘truth’ will always be tantamount to accepting that the forces in power have a right to silence views they do not agree with, or beliefs they do not hold.
Moreover, as an experience of COVID-19 measures shows, falsity or inaccuracy of information might only become apparent in time, with advanced research and evaluation. For instance in the early stages of the pandemic, the usage of face masks to stop the spread the virus in non-clinical setting was not recommended; but several months later became a norm. Hence, creating a legal duty of truth would prevent the discussion of ideas which challenge the existing norms, would limit scientific and journalistic activities and public debate and could restrict criticism of societal attitudes or of those in power. It would risk that scientists, journalists or human rights defenders would be sent to prison on accusations of disseminating ‘fake’ or ‘unverified’ statements that might be proven accurate only in time.
In this case, the Regulations connect falsity of information with the legitimate aim of protecting public health. However, it is important that restrictions be crafted precisely as to only impose restrictions in situations where disinformation actively threatens public health, to prevent them from being subject to abuse. One example of a situation where disinformation could threaten public health was presented by the Special Rapporteur on freedom of expression in his 2020 report to the Human Rights Council, when companies commit fraud by misrepresenting products with claims that they cure diseases when they do not. The Rapporteur concluded that the limitation of misrepresentations could constitute a legitimate aim for purposes of restrictions under Article 19(3) of the ICCPR.
The Regulations are restricted to information concerning COVID-19; however, it is less clear how limiting information regarding “Government measures taken in response” to a pandemic is directly tied to public health. This would appear to be at risk of bleeding into limiting criticism of government policy on grounds entirely unrelated to public health.
Necessary in a democratic society
ARTICLE 19 warns that the scope of the prohibition in Section 11(5) is limitless, as it applies to any medium. Section 11(5) would appear to apply to social media postings, chat apps, news media, blogs, forums, and even closed groups or private messages. Significant communication in South Africa occurs via WhatsApp. Combined with the prospect for public shaming (see below), the chilling effect of the Regulations are potentially felt in every expressive outlet of South African society.
Moreover, the penalties imposed by the Regulations are disproportionate. Imprisonment or criminal sanction on the basis of publication of ‘false information’ are generally disproportionate restrictions on freedom of expression and threaten to have a severe chilling effect on publication.
ARTICLE 19 also highlights that in order to address disinformation related to the COVID-19 pandemic, the South African Government has the availability of a variety of non-coercive means to promote the public’s right to know and increase the possibility of false information being countered with accurate information. These include efforts to support media pluralism and independence, to educate the public in media and digital literacy, and to enact policies to ensure government officials disseminate reliable and trustworthy information.
Implementation of the Regulations
ARTICLE 19 notes that the implementation of the Regulations has already been highly problematic. They have already been invoked for trivial arrests; in one case of a man for disseminating falsehoods surrounding test kits. The Government stated that those charges were “meant to send a strong message to South Africans that the spreading of fake news will not be tolerated.” In another case, a man was arrested for denying the existence of the COVID-19 pandemic at a public gathering. Criminal sanctions in these cases are difficult to justify by any measure.
Transparent journalism, particularly about the actions of government, is critical during a health pandemic. While limiting maliciously disseminated information can serve a legitimate purpose of protecting public health, the standards of when content is ‘meant to deceive’ should be clearly defined in law. Further, criminalising any form of publication regarding government activities is dangerous.
Hence, ARTICLE 19 suggests that Section 11(5) of the Regulations should be eliminated entirely.
Confusing promotion of the Real411 reporting system
Additionally, on its website, the South African Government has been promoting a ‘reporting system’ called Real411 whereby users can report ‘disinformation’ and ‘hate speech’ via a mobile app, website, or a dedicated WhatsApp number. Alleged pieces of ‘disinformation’ are then posted on the Real411 website while they await “adjudication” by a Digital Complaints Committee which is run by the NGO Media Monitoring Africa. Although the system is totally independent from the Government, use of this service is prominently pushed by the Government, which shares photos of the alleged infringing content on its website with a large red “fake” stamp. The Government’s promotion of the service is confusing as it seems to indicate that reported content is “liable for prosecution.”
While the objectives of Real411 appear to be genuine, the materials surrounding it make no reference to international human rights standards and require more transparency to assess the process around this initiative. It is unclear on what criteria decisions are made. Real411 indicates it categorises complaints received into several categories, depending on whether or not they fall within the program’s scope and whether they are urgent, i.e. “may lead to imminent harm or violence.” Some of the decisions taken include outside referrals for further investigation, instituting proceedings in courts, or publishing counter-narratives. The Digital Complaints Committee defines ‘digital disinformation’ as “false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm.” We note positively that this requires an intent to cause public harm. However, it is unclear what factors are used as evidence of whether content is meant to ‘intentionally cause public harm.’ We recommend more transparency as to this process, as well as the criteria by which information may be referred for further investigation.
Overall, we note that the purpose of any ‘shaming’ is inherently to serve as a deterrent – as public authorities are attempting to deter certain forms of speech. However, punishing so-called ‘false information’ with criminal penalties threatens to have a severe chilling effect on freedom of expression, which is particularly urgent in light of the COVID-19 pandemic. A government-promoted public reporting and shaming system for publication on any medium can have a chilling effect, as individuals might be less likely to publish out of fear that their content will be either reported maliciously and thus investigated by the government; or be publicly shamed. Further, objective ‘truth’ is often difficult to ascertain especially in rapidly evolving situations such as a pandemic. We observe that, for example, many scientific recommendations regarding safe practices have changed and evolved over the duration of COVID-19 due to further research. As before, further transparency can help ensure that well-intentioned but potentially dated advice is not erroneously flagged as disinformation.
ARTICLE 19 finds that while malicious disinformation on COVID-19 is deplorable, subjecting all speech to disproportionate scrutiny and chilling effects is not a proportionate response to this problem. It can ultimately do more harm to public health by dis-incentivising more flow of information. ARTICLE 19 has long advocated that media self-regulation and industry-wide ethical standards are a better means of realising journalistic standards, rather than government mandates. This is a positive opportunity to promote freedom of expression and freedom of the media.
Open and transparent journalism and investigation on a public health emergency is necessary in order to save lives. This includes accurate and up-to-date information regarding the virus, access to services, and the actions of the government. The real ‘antidote’ to misinformation, according to the UN Secretary-General in light of World Press Freedom Day, is greater protection of journalists.