Regulating Freedom of Expression Amidst the Covid-19 Response in South Africa

By Tusi Fokane |

The global infodemic accelerated in part by the Covid-19 pandemic has raised important debates on how best to respond to the proliferation of false and misleading information online. The Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression addressed the critical issue of misinformation, noting that some actions undertaken by various governments to contain the spread of the coronavirus may fail to meet the test of legality, necessity and proportionality. The report cautioned against the introduction of vague and overly-broad laws to combat misinformation, proposing instead that governments provide reliable information to citizens.

Six months after a National State of Disaster was declared in South Africa, the government on September 16, 2020 eased the lockdown, removing “as many of the remaining restrictions on economic and social activity as it is reasonably safe to do.” One notable restriction still in place  is the criminalisation of the publication of “any statement through any medium including social media, with the intent to deceive,” pursuant to Regulation 11(5), under the Disaster Management Act, which was issued in March 2020. The offense is punishable with an unspecified fine, imprisonment of up to six months, or both.

The regulations were followed by directives from the Minister of Communications and Digital Technologies compelling communications service providers to “remove Covid-19 related fake news from their platforms immediately after it is identified as such”. Within days of its passing, several individuals were arrested for spreading false information about Covid-19. In one case relating to a Covid-19 interview, the Broadcasting Complaints Commission of South Africa fined two broadcasters South African Rand 10,000 (USD 660).

Whilst various activists initially raised their voices in support of   governments’ efforts to halt the spread of the disease, they also cautioned against overly restrictive conditions that limit human rights including  freedom of expression, access to information and public accountability.

Civil Society Reactions to the Regulations on “Fake News”

The debate about the impact of South Africa’s Covid-19 regulations on  free speech came into focus when a leading academic and member of the Covid-19 Ministerial Advisory Committee, Professor Glenda Gray made public comments about the effectiveness of the lockdown restrictions. The Minister of Health declared the academic’s views false and misleading. This prompted leading academics to conclude that “the government has repeatedly stressed that its primary goal in managing the pandemic is to save lives. But it needn’t kill speech to save lives.”

In April 2020, the Right2Know Campaign (R2K) wrote to the National Coronavirus Command Council regarding the “fake news” provisions of lockdown regulations. Whilst noting the potentially deleterious effects of false information, R2K made  proposals to amend the regulations to ensure the protection of the right to freedom of expression. Among the amendments proposed by R2K was the definition of “fake news”  to be clarified as the “dissemination of false information with the intention to deceive…”

Further, R2K noted that the “criminalisation of speech inevitably has a chilling effect on the right to freedom of expression.” It proposed administrative penalties, rather than criminal sanctions, for disseminating false information. Another key proposal was that the government should make provision for relevant defences that an offender could rely on when faced with a charge of spreading false information.

Other critics, such as the Free Market Foundation (FMF), rejected the fake news regulations outright, calling on the government to rely on existing common law and constitutional provisions rather than attempting to regulate expression through the introduction of additional regulations. The FMF argued that, “there is simply too much information circulating in society for any centralised body to be entrusted with deciding its accuracy. Instead, we must rely on the decentralised gatekeeping network known as ‘the market’ to assist us in judging what is true and what is false.”

Meanwhile, Media Monitoring Africa (MMA) stated in a statement in March that the regulations were narrowly defined, and proposed a high standard on the state to prove “intention to deceive.” The group  said the real challenge would be the government’s ability to implement and enforce the fake news regulations.

None of these proposals were taken into account and the current regulations remain in force under the extension of the state of national disaster, imposing undue restrictions on the right to freedom of expression.

Enforcement of the “Fake News” Regulations

As part of measures to enforce the regulations, the government established a multi-stakeholder monitoring and evaluation platform and Digital Complaints Committee to monitor and respond to misinformation and fake news related to Covid-19.  Then Acting Communications and Digital Technologies Minister, Jackson Mthembu, stated that the platform aims to assess misinformation complaints, take down fake news items, and submit cases to the police for investigation and prosecution.

According to MMA Director, William Bird, the task of combating fake news should not be left to government and platform providers. Since 2019, MMA has maintained Real411, an independent digital platform for reporting suspected misinformations. Thandi Smith, MMA’s Head of Programmes, explains that complaints are assessed by a team of three voluntary reviewers with legal, technology, and media expertise. The reviewers then make a recommendation to a five-member secretariat based on a set of assessment criteria.

Upon completion of an investigation, the secretariat recommends a range of actions which may include issuing a take-down notice, fact-checking verification, and publishing a counter-narrative infographic. Bird said the secretariat reports hate speech cases to the South African Human Rights Commission for further action. Extreme cases of misinformation would be reported to the South African police, but to-date no complaints warranting police investigation have been received. Complaints about the media and editorial content are referred to the relevant regulatory authority. Smith noted that there is an appeal process headed up by a retired Constitutional Court judge.

 Assessing the Effectiveness of Criminalising Misinformation

It may be difficult to assess the effectiveness of fake news regulations on Covid-19 given the rapid spread of information in the digital environment. This raises philosophical and policy issues on whether free expression online should even be regulated at all, and by whom.

Indeed, Ghalib Galant, Deputy National Coordinator & Head of Advocacy for the R2K Campaign, maintains that the challenge with South Africa’s Covid-19 misinformation regulatory framework is that government’s response was to criminalise behaviour rather than focusing on educating and supporting South Africans to understand the impact of the pandemic. As he puts it, “Government policed people, rather than healing a health pandemic.”

Galant suggested that administrative penalties may be a better deterrent than criminal sanctions. This would ensure the protection of the right to freedom of expression whilst the country debates whether or not new rules are needed for regulating false information, or a “re-imagining of section 16 of the Constitution.” Galant suggests that perhaps this could be within the purview of a statutory institution such as the Information Regulator.

Section 16(1) of South Africa’s Constitution states that “Everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.” Section 16(2) restricts speech related “to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

The head of legal, policy and research at the FMF, Martin van Staden, said fake news regulations have not been effective as they are difficult to enforce. From his perspective, any prohibition on freedom of expression beyond Section 16(2) Constitutional limitations would amount to censorship. He stated: “The Constitution is unequivocal about the scope of the right to freedom of expression, and it does not include a provision that only ‘factual’ expression is allowed. This means that misinformation is constitutionally protected expression in South Africa, and must be left alone.”

He recommends that the government should instead provide accurate and reliable information, and develop a strong counter-narrative strategy, which would enable South African citizens to reach their own conclusions on the veracity of any information they receive.

Van Staden cautioned against the state’s “paternalism” and future attempts to introduce legislation aimed at ensuring the truthfulness of information that is disseminated. “The right to freedom of expression is meant to protect the uncomfortable, the unpopular, and the offensive,” he said.

Threats to Freedom of Expression Beyond Covid-19 Regulations

There is uncertainty on whether the National State of Disaster will be extended again beyond December 15, 2020, given concerns of a second wave of Covid-19 infections in the country. Freedom of expression experts have warned that whilst fake news may be decriminalised by a declaration of the end of the State of Disaster,  the government may attempt to use impending legislation to further regulate free speech online.

For example, in July 2020, the Minister of Communications and Digital Technologies released a call for comments on the gazetted draft Film and Publications amendment regulations, (commonly known as the internet censorship bill), which introduces a requirement for pre-classification of online content with the Film and Publications Board.

Another key piece of legislation in the pipeline is the Prevention and Combating of Hate Crimes and Hate Speech Bill, which lapsed and is currently on hold, pending judgment on the Qwelane hate speech Constitutional Court challenge which was heard on  September 22, 2020.

Qwelane contends that the prohibited grounds listed in section 10(1) of the Promotion of Equality and Protection of Unfair Discrimination Act (Equality Act) are overly broad, go far beyond the limitations set out in section 16(2) of the Constitution, and unjustifiably limit the right to freedom of expression.

The outcome of the Qwelane case will be important in clarifying the limitations on free speech for South Africans given ongoing debates on the regulation of freedom of expression both online and offline. This is particularly important in setting clear parameters for free speech and false and misleading information in South Africa. This will assist in ensuring that unprotected speech is very narrowly defined and does not unjustifiably limit the Constitutional right to freedom of expression.


Tusi Fokane is a 2020 CIPESA Fellow focussing on the the availability and use of digital technologies to combat the spread of Covid-19 in South Africa. She is also  studying the country’s readiness for electronic voting to comply with social distancing and other movement restrictions during the upcoming local government elections.

Tanzania Tramples Digital Rights in Fight Against Covid-19

CIPESA Writer |

Since the first case of the coronavirus disease (Covid-19) was announced in Tanzania on March 16, 2020, the government has been in the spotlight for its handling of the pandemic. It has denied the severity of the pandemic, suspended media houses, and criminalised Covid-19-related speech through enactment and enforcement of repressive regulations. 

In turn, there have been growing concerns that these measures are not only hurting the fight against the pandemic, but the wider enjoyment of civil liberties in the country, especially in the leadup to the October 28, 2020 general election.

Tanzania has been criticised for its lackluster response to the Covid-19 pandemic, with the World Health Organization (WHO) citing its lack of transparency. Further, a team of United Nations experts noted that the government was not meeting its commitments on information sharing and transparency, after it stopped releasing statistics on Covid-19 cases at the end of April. 

At the end of March, Tanzania’s President, John Pombe Magufuli, is reported to have encouraged people to continue visiting places of worship, while comparing the virus to the Biblical Satan and saying that it “cannot survive in the body of Jesus Christ.”

President Magufuli also rejected the need to restrict movement of citizens, claiming stringent social isolation measures would severely damage the economy, and in June 2020, he declared the country virus-free, “thanks to God” and prayers by citizens.

In July 2020, the United Nation experts stated that Covid-19 had compounded the pre-existing human rights concerns in Tanzania, notably, the right to freedom of expression, including freedom to seek, receive and impart information.

Enactment of repressive regulations

In July 2020, the government repealed the 2018 Tanzania’s Electronic and Postal Communications (Online Content) Regulations and replaced them with the Tanzania Electronic and Postal Communications (Online Content Regulations 2020. The 2020 regulations aggravate the crackdown on free speech as they require the registration of bloggers, online discussion forums, radio and television webcasters. 

The new regulations define “news related content”, as online news information gathering, compiling, editing, publication and broadcasting in a manner similar or that bears a resemblance to traditional media services provision. In the renew regulations, the definition of an “online forum” has been expanded to cover every possible online fora and “online platforms.” These definitions are so vague that their application is potentially boundless in scope.

Further, they impose annual license fees on the online content services, grant the regulator sweeping powers to suspend media outlets and journalists, and detail a broad list of prohibited content. 

Among others, the regulations prohibit the publication of “content with information with regards to the outbreak of a deadly or contagious disease in the country or elsewhere without the approval of the respective authorities.” The penalty for breach of the regulations is a fine of not less than five million Tanzanian shillings (USD 2,140), imprisonment for not less than 12 months, or both.

Regulation 9(g) expands the obligations of online content service providers to immediately take down any prohibited content once ordered by the Tanzania Communications Regulatory Authority (TCRA).

Criminalisation of Covid-19 false news

Besides the enactment of repressive Covid-19-related regulations, the government has also invoked laws predating the pandemic to intimidate, arrest, and detain persons, including whistleblowers and critics, in order to censor what is perceived as Covid-19 misinformation or disinformation.

In March 2020, the Tanzania Prime Minister, Kassim Majaliwa, warned the public against spreading against misinformation around the coronavirus outbreak, stating that those found guilty would be dealt with. He directed the TCRA to monitor and apprehend persons disseminating false news, which he said was causing confusion in society. The government subsequently released a list of qualified persons to educate the public about Covid-19, and directed that all media source information only from those on the list.

These threats were quickly followed up with arrests and prosecution of individuals, and harassment of media houses, some of whom had their licences suspended. 

In April 2020, there were numerous individuals arrested and charged due to Covid-19 related content that authorities deemed unofficial. A similar argument was maid against media houses which resulted in having their licenses suspended.

Awadhi Lugoya was arrested and accused of wrongful use of social media, for opening a Facebook account called “Coronavirus Tanzania” and using it to purportedly spread “misleading information” about the pandemic. Mariamu Jumanne Sanane, a third-year student at the University of Dar es Salaam, was arrested in April 2020 after she claimed on social media that there were 230 confirmed cases of Covid-19 and four deaths in Tanzania. 

Meanwhile, Afrikana Mlay was arrested over accusations of spreading false information on social media, to the effect that the government was hiding the number of coronavirus disease cases in the country. The police claimed that the post was “intended to create panic and discourage efforts being undertaken by the government in fighting [the] spread of the virus.”

On April 28, 2020, Ibrahim Bukuku, a first-year student at the University of Dodoma, was arrested and charged for allegedly disseminating false and misleading information through a WhatsApp group about an alleged cure for Covid-19.  

Similarly, earlier in April 2020, Albert Sengo, a journalist working with Jembe Radio FM in Mwanza region, was charged in court for publishing online content on his “unregistered” online GSENGO TV

On the same day, Albert Msando, a prominent lawyer in the Arusha region, was arrested and later charged with allegedly spreading Covid-19 misinformation over his remarks about the worsening coronavirus situation in Arusha. His arrest came only hours after Arusha Regional Commissioner Mrisho Gambo had directed the police force to arrest any citizen disseminating conflicting public information on Covid-19.

Also in April, the Zanzibar Information Department suspended Talib Ussi Hamad, a journalist with the Tanzania Daima daily newspaper, for six months under the Registration of News Agents, Newspapers, and Books Act No. 5 of 1988 and its amendments No. 8 of 1997. Talib Hamad had allegedly reported about a Covid-19 patient without the patient’s consent. He filed a case in the Zanzibar High Court in July challenging the decision. The Zanzibar government lifted the suspension in August 2020. 

Likewise, Mwananchi daily newspaper had its online license suspended for six months and fined five million shillings (USD 2,200) by the TCRA after it posted a photo of President Magufuli out shopping and surrounded by a crowd of people, eliciting online discussion on Tanzania’s approach to addressing Covid-19 and the apparent breach of social distancing guidelines. According to the TCRA, the paper breached the Electronic and Postal Communications (Online Content) Regulations as its report was allegedly misleading and had caused confusion in the community. 

Three other media organisations – Star Media Tanzania Ltd, Multichoice Tanzania Ltd and Azam Digital Broadcast Ltd – were on April 2, 2020 fined USD 2,200 each and ordered to apologise for “transmission of false and misleading information” about the country’s approach to managing Covid-19. In addition, Kwanza Online TV was suspended for 11 months in June 2020 for reposting on Instagram a health alert from the US Embassy warning of an “elevated” risk of Covid-19 in the country, which the regulator found to be misleading content that contravened professional standards, arguing that the media house had failed to verify the accuracy of the information in the alert.

On April 30, 2020 two employees of Mwananchi Communications Ltd. – Haidary Hakam and Alona Tarimo, were arrested and charged for allegedly disseminating false information about Covid-19 victims on WhatsApp groups contrary to the Cybercrime Act of 2015.

Undermining citizen participation 

These developments are reflective of how the Tanzanian authorities have used repressive laws to crack down on  journalists for doing their jobs, especially during the Covid-19 pandemic. 

In a country where civil liberties have been eroded over the years, the growing hostility of the government towards dissenting opinions, including on the state’s handling of Covid-19, has forced human rights defenders, journalists, activists, the political opposition, and ordinary citizens to self-censor, and could prompt them to refrain from exercising their right to public participation.

As Tanzania prepares to go to the polls in less than ten days, the government must desist from further affronts on civil liberties, especially the right to freedom of expression and access to information, the lifeblood of any democratic society.