Covid-19: Third parties can be held liable for spreading fake news

And yes, you will get a criminal record.
At least seven people in South Africa have been arrested for spreading fake news about coronavirus. They face a fine, six months in jail, or both. Image: Shutterstock

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.

Read: How fake news and Elon Musk sent the rand haywire

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Will anyone be brave enough to take on the Political Parties over their lies? Fake News = Lying.

What is a lie?
It’s stating false fact and or acting inauthentic.

Example:
1)Stating the incorrect number of people with Covid-19.
2)Not telling your boss that he is wrong because you may not be actively misleading other people, but merely lying by omission.

Given Mr Birch example, what was there to gain or was he simply in a weak frame of mind or maybe even just had a moment of poor moral compass in a world were he has been confined to his own thoughts due to the lockdown.

If indeed Mr Birch is sentenced by the court why has Minister Stella Ndabeni-Abrahams not be summoned or arrested and then sentenced, I do understand that the President has said that the law must take is course but is has not and in all potentially will not.

….good points

Whistle blowers will be reluctant as will those requested to give evidence

This is another example of the government using chaos to pass laws infringing rights… especially in light of the fact that Spain, the Netherlands and Czechoslovakia to name a few, have all returned millions of swab testing kits to China at Chin’s expense for less that 100% quality standards

I was aware of the minister’s transgressions regarding the lockdown rules, but not aware of the fake news she was also spreading (the point of this article).

What “news” did she spread?

One must say that Mr.Birch is a special kind of stupid for posting that video.

Not fake news. For the rich billionaires, this planet became for them unlivable. Everywhere the working class, and spoiling their view an day. On airports, planes, ships, you name it. This virus rectified all that. The men who leaded the hunt for the right virus medicine
is the humble human B Gates. He deserve all the praise from fellow men enjoining the space and silents of, not a working class in sight. His future plan for them is a permit, kind of apartheid system, who can or not. With vaccination, his property, as anchor.
The country most fitting to be first in this wishful planning and thinking is good old S.A. In fact roadblocks are doing the trial and error thing. Can be coming permanent. The life of the non working class will improve immensely. Space, with not a working soul in sight is a dream coming true.

Yet CNN continues to exist BUT they have fallen quickly among American viewers. Unfortunately most South African’s believe their “Fake News.” Now where have I heard that before?????

Are poor stats put out by Govt part of fake news.

We have two countries… One where there is compliance where people stick to the lockdown and pay taxes and another where people don’t.

There are also ministers with a proven track record of corruption but where nothing has happened.

What about fake science at worst if we assume a diabolical hidden agenda behind the hype, or at best massively exaggerated projections based on models, like the Imperial College of London – Neil Ferguson – who refuses to release his model to other organisations like Oxford/ Cambridge/ Stanford etc for scrutiny – what is he afraid of?

It seems that Africa as a whole has just adopted his worst case apocalyptic models without question or 2nd opinion. Then on the projected figures which are already being proven all over the world as wildly excessive – our own government and many others enforce brutal lock downs, which no where in their wildest dreams or even if the Ferguson models were correct, can they possibly justify.

Is an economically suicidal lock down based on exaggerated science, then not a false lock down. Can this be challenged in the constitutional court, depriving people of work, or enforced poverty. With their only justification being a single suspect model and because the WHO told us to?

At what stage and how long do we have to head into this ‘crisis’ before even the average Joe Soap, starts to say hand on, after 3 months, where is all the millions of cases and hundreds of thousands of deaths we were assured would happen, if we did not adhere to what are at best highly questionable measures. Will someone or some group, pick this up and challenge the government in court – probably not now as that is not the WOKE thing to do – but i cannot see this being tolerated in very many countries around the world for much longer.

The problem or challenge in SA’s case is who decide what is fake. a Simple test, do we have corrupt leaders or not? In some minds yes in others no. What is fake?

would love to hold especially twitter liable

I hope this reflects permanently in the future. Closing down on fake news on social media would be fantastic. People spread this willingly, and a lot of the times spreading it without an afterthought of what impact it could have. Can we also be a bit more mindful on conspiracies as well?

End of comments.

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