COVID-19: Bad news for bearers of fake news

Author: Mark Thomas

Service: Litigation & Dispute Resolution

The Minister of Health has said that fake news is one of the greatest threats to effectively managing the spread of COVID-19 in South Africa.

“In a world of always-on news and ‘fake news’, fear spreads faster than any pathogen…”
- Peter Sands

In a White Paper for the World Economic Forum, Peter Sands a Research Fellow at Harvard Global Health Institute notes that the number of infectious diseases and their capacity to unravel global economic systems, is increasing. Similarly, Bruce Schreiner, writing for the New York Times in June of last year opines that “pandemics are part of our future”.

Both writers agree that pandemics will be fought on two fronts namely, the treatment of the disease itself and staving off the barrage of misinformation and untruths that will simultaneously flood the internet. Even our own Minister of Health has said that fake news is one of the greatest threats to effectively managing the spread of COVID-19 in South Africa. Indeed, “fake news is making us sick” in the words of Minister Mkhize.

The concept of “fake news” predates pandemics though. Merchants in ancient Greece would spread rumours of storms to raise grain prices and the spread of false information was used as a tactic against enemies during war time. At this time, the news was typically disseminated through various unofficial sources. The Greeks developed checks to evaluate the voracity of this type of news like assessing the identity, status and credentials of the speaker, determining whether the news was a first-hand account or hearsay and, importantly, examining the underlying motives that a speaker might have in spreading the news.

Today, “fake news” has become a hot topic in the context of politics generally and political campaigning specifically. News is no longer derived from traditional media outlets which are subject to strict codes of conduct. Instead, almost everyone can create and distribute ‘news’ using platforms such as Facebook, Twitter, Instagram and WhatsApp amongst countless other platforms which are often unregulated and unedited.

These platforms afford users a level of social reach and influence that is unprecedented in the context of news distribution. This might be fairly harmless when the “fake news” is that carrots may be used as a substitute for bananas in banana bread. However, when the content being disseminated engenders mass hysteria and fear, distrust of the government and health systems or violence amongst citizens it has a direct effect on a state’s ability to deal with a pandemic.

South Africa has been lauded by the international community for its swift response to the COVID-19 outbreak. The regulations published in terms of the Disaster Management Act, 57 of 2002 (“the Regulations”) appear to be tackling the pandemic on both fronts namely, combatting the virus itself as well as the spread of “fake news” concerning the virus.

In addition to prescribed social distancing and restrictions on movement of persons, the Regulations expressly prohibit the creation and/or dissemination of information by any person through any medium, including social media, that is intended to deceive any other person about COVID-19, the infection status of any person and importantly, and any measure taken by the government to address COVID-19.

The effect of regulation 11(5) of the Regulations is as follows:

  • The creation of “fake news” is prohibited;

  • The spread of “fake news”, whether created by the disseminator or not, is prohibited;

  • The prohibition against publishing “fake news” extends to any medium including social media;

  • As a criminal offence, there are various forms of “intention” that may lead to criminal liability namely:
    - direct intention: for example, the accused published “fake news” on her Instagram page about COVID-19 with the intention of deceiving her followers about its existence;
    - indirect intention: the accused published “fake news” on a WhatsApp group about a measure implemented by the government to address COVID-19. It was not the person’s direct intention to deceive the group participants about the measure, but he knew that that consequence was certain, or substantially certain or virtually certain, and proceeded anyway;
    - (and possibly) dolus eventualis: the accused did not mean to bring about a situation where everyone at her workplace suspected that her colleague had tested positive for COVID-19. However, the accused foresaw the possibility that her other colleagues might be misled by her statement that the first colleague was probably coughing so much because she had contracted the virus on her recent trip and proceeded with her conduct regardless.

The sanction on conviction of the offence of creating and/or spreading “fake news” is a fine or imprisonment for a period not exceeding 6 months or both such fine and imprisonment. The spread of “fake news” will be difficult to police.

Like the ancient Greeks, citizens must be vigilant in assessing the voracity of fake news and are encouraged to fact check.

For more information on how Tabacks can help your business navigate the legal, regulatory and commercial implications of the COVID-19 pandemic, please visit our Coronavirus Hub.