As we are all well aware by now, on 15 March 2020, Dr Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs, declared a national state of disaster in terms of Section 27(1) of the Disaster Management Act 57 of 2002 (“the Act”) as a result of the COVID-19 pandemic hitting South Africa.

On 18 March 2020, Dr Dlamini-Zuma gazetted the Regulations to the Act setting out the steps necessary to prevent an escalation of the disaster or to alleviate, contain and minimise the effects of the disaster.

It is interesting to note Regulation 11(5) which deals with the publication of misinformation regarding COVID-19 or the sharing of fake news.

In June 2019 Bruce Schneier, an American cryptographer, computer security professional, privacy specialist and writer, 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.”

This rings true especially in a vulnerable country such as ours. The spread of fake news and lies can have a dire impact on curbing the spread of the virus in South Africa.

Minister Dlamini-Zuma indicated that she hopes the threat of a prison sentence or fine a for spreading fake news about the outbreak will curtail the string of false claims about the virus, which have been flooding social media and creating general confusion.

Regulation 11(5) reads as follows:

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.

To break this down in simple terms:

Fake news and other forms of misinformation about COVID-19 are prohibited. Any publication designed to deceive people is prohibited. “Any medium” would include SMS, WhatsApp, Twitter, Facebook, Instagram, online videos, other messaging and networking or social media platforms.

The state must prove that you published the statement with the “intention to deceive”. This means that you must have published something knowing that it is false and with the intention that others would be misled or deceived by the information.

However, the offence of spreading fake news is not conditional on you being the creator of the fake message. In our law it is a general rule that the sharer is as guilty as the creator. You may still be convicted of an offence under indirect intention (dolus indirectus) or eventual intention (dolus eventualis). It will not be enough for you to argue that you didn’t have the direct intention (dolus directus) to deceive someone.

Various fake messages about COVID-19 have spread quickly across WhatsApp and other social media platforms in South Africa in the weeks leading up to and during the lockdown. These false messages have been shared both in person-to-person messages and, probably more concerning due to the fast spread, via WhatsApp groups.

In terms of the new Regulations gazetted by Communications Minister Stella Ndabeni-Abrahams on 26 March 2020, a broad range of telecommunications players have “the responsibility to remove fake news related to COVID-19 from their platforms immediately after identified as such“.

The list of providers with that responsibility includes internet service providers (ISPs) and over-the-top communication providers (OTTs). WhatsApp is essentially an OTT.

WhatsApp uses end-to-end encryption and technically does not know the content of messages exchanged between its users. It is unable to filter or delete certain types of content, nor can it identify who initially sent a fake message.

However, due to a string of deaths in India that was a direct consequence of a fake WhatsApp message, the provider is considering various changes to its system.

On Friday, 27 March 2020, a 36-year-old Cape Town man was arrested after recording himself during a gathering of more than 100 people and making fun of efforts to contain COVID-19. Police Minister Bheki Cele said on Saturday that the man was in a holding cell after posting that there was “nothing called corona here” in South Africa.

It is clear that these Regulations are being enforced strictly, and, now more than ever, you need to verify all information before you share or post any information on social media. Not only because it is an offence to share false information, but because each of us should be informed and act ethically in these times and stand together to fight this virus, not cause panic.