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.

Join us at the Forum on Internet Freedom in Africa 2017 (FIFAfrica17): Register Today!

#FIFAfrica17 |
It is closing in yet again on that time of the year when we convene to explore the many aspects of online rights at the Forum on Internet Freedom in Africa (FIFAfrica).  Between September 27 and 29, 2017 we converge in Johannesburg, South Africa to share ideas, experiences and insights as we continue to build the movement for #InternetFreedomAfrica!
Register and join those who already have set their sights on joining us at #FIFAfrica17 as we continue to advocate for an internet that is free, secure and open. We have received many session proposals and suggestions but are still open to receiving a few more. As you register, you are still welcome to add your suggestion – we’ll try our best to find a way of addressing the topics you raise. Successful session proposals will be listed on the Forum webpage on August 10, 2017.
Travel Support
Last year we received over 400 applications for travel support of which we were able to support less than one-fifth of the applicants. Our vision is to have a Forum with representation from as many countries in Africa as possible. As part of the registration process, we make room for interested participants to submit an application for travel support.
Exhibit at #FIFAfrica17
Participation in the Forum takes various forms. Some want to talk, others want to listen and some want to show what they do. We are expanding exhibition space at the Forum and are thus inviting proposals from individuals,organisations and companies who wish to showcase their work, projects and products at #FIFAfrica17. The exhibition opportunity is free but we encourage a voluntary contribution to enable us ensure that the #FIFAfrica17 experience is as insightful as it is memorable. Please follow this link and let us know your exhibition idea.

#FIFAfrica17 is co-hosted by the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) and the Association for Progressive Communications (APC)

South Africa Bill Threatens Internet Freedom

By Juliet Nanfuka |
South Africa’s Cybercrimes And Cybersecurity Bill (2014) has been met with apprehension among civil society due to its vague definitions, its limited safeguards for access to information and freedom of expression. In many ways, it resonates with the equally stifling Draft Online Regulation Policy gazetted in March 2015, which contains clauses that have the potential of blocking online content including films, games and certain publications.
Civil society welcomed the invitation by the Department of Justice and Constitutional Development to provide comment to the draft document. However, concerns have been raised across the board including by the Interactive Advertising Bureau South Africa on the grounds that the bill “broadens the definitions of copyright and creates requirements that do not exist in current copyright law.”
The Association for Progressive Communications in their submission stated that the bill does not make sufficient distinction between unlawful intention and a lack of intention by an internet user, such as an inexperienced internet user downloading illegal malware, but being ignorant of this fact. According to APC, given the low levels of digital literacy in South Africa, this is an important concern. it also noted that the Bill lacks a clear perspective on the culpability of minors and the evolving capacity of minor.
The Right2Know campaign in their comments  pointed out that the bill gives the state excessive authority by granting “the power to declare any data, database, device, network, infrastructure – publicly or privately owned – to be a ‘National Critical Information Infrastructure.’”
Many clauses in the South African Bill are similar to clauses present in a spate of bills that have emerged in East Africa.  In Part V of the Kenya Security Laws (Amendment) Act 2014, the surveillance capabilities of the Kenyan intelligence and law enforcement agencies are expanded without sufficient procedural safeguards. A similar stance is present in the Tanzania Cybercrime Act (2015), which was signed into law with limited public review. The Act makes no indication on the rights the users have of their data nor how it is protected once in the hands of the state, putting citizens’ data at risk especially in the absence of a data privacy and protection law.
Meanwhile in Nigeria, the controversial Social Media Bill was met with criticism as it “completely negated important international conventions to which Nigeria was a signatory”. The Partnership for Media and Democracy in Nigeria (PAMED) raised the concern that “the bill constitutes a threat to democracy because it seeks to repress the social media, the conventional media, the civil society and the citizenry as a whole.”
A recurring theme across many of these new legislations is the continued attempt of states to muzzle opinion of the media, independent social commentators (popular bloggers) and various other non-state actors who are involved in the promotion of freedom of expression, accession to information, increased state transparency and accountability.
Further, the contradictory nature of the new and proposed laws with existing legislation compromises the security and privacy of citizens and their data and leaves gaps for the abuse of internet rights as prescribed in the African Declaration of Internet Rights and Freedoms  remain largely ignored.

Online Censorship in South Africa

South Africa is among the top five African countries with the highest mobile broadband reach, preceded by Ghana, Zimbabwe, Namibia and Egypt. As of June 2014, internet users had increased to 52% of the population, majority of them using mobile devices to access the internet.
Although the country has been ranked free in internet freedom rankings and held highly in respect to promoting equal rights, recent developments in the offline and online world say otherwise.
In March 2015, a consumer activist who runs the CAMcheck blog that reports on misleading claims made by consumer goods providers, was forced to move his website offshore following a take-down request made by sports supplement company USN for content described as “unsubstantiated and defamatory”.
According to Section 78 of the Electronic Communications and Transactions Act (ECTA) 2002, ISPs are not obliged to monitor the data they transmit or to actively seek facts or circumstances indicating an unlawful activity. Service providers are, however, liable for failure to comply when issued with takedown requests from users as provided under Section 77 of the Act.
It is thus no surprise that Hetzner, the CAMcheck blog web hosting provider, also a member of the South Africa Internet Service Providers Association (ISPA), complied with the take down request.
Also in March 2015, the Film and Publication Board (FPB) gazetted a Draft Online Regulation Policy, 2014, which contains clauses that have the potential of blocking online content – including films, games and certain publications – prior to publication.
The regulations require that anyone wishing to publish or distribute such content has to first acquire a digital publisher’s online distribution agreement with the FPB, after paying a subscription fee. Once paid, the publisher would have to submit the content to the FPB for classification prior to publishing.
The FPB has the mandate to regulate the creation, production, possession and distribution of films, games and certain publications by way of classification, to protect children from exposure to disturbing and harmful material and from premature exposure to adult material and to criminalise child pornography and the use and exposure of children to pornography.
The Draft Online Regulation Policy states that, the policy, “read with the Online Regulation Strategy and the ECT Act Amendment Bill, will also ensure that classification focuses on media content, rather than on platforms or delivery technologies.”
However, civil society organisations have criticised the draft policy, stating that they are “effectively a specific form of pre-publication censorship, which is not acceptable.” They also add that the time spent on the pre-classification of content would undermine one of the most valuable traits of the internet – its immediacy.
Further concerns about the new regulations include the exclusion of content by parties unable to pay the fees required and thus a potential limitation on the diversity of online content.
But online content censorship is not new in South Africa. In 2012, “The Spear”, a controversial painting by Brett Murray which depicted President Jacob Zuma with his genitals exposed, was published on the City Press website – a daily newspaper. President Zuma and the African National Congress Party obtained an order for the removal of the image from the website of City Press on the grounds that it was unfit for viewers under the age of 16, according to classifications by the FPB. The Goodman Gallery (where the painting was displayed) approached the FPB Appeal Tribunal which found that the ruling in favour of the injunction was incorrect. The City Press nonetheless removed the image from its website.
Meanwhile in the first quarter of 2013, the South African Counter Intelligence Agency made a content removal request to Google for a blog post that was ‘allegedly infringing copyright by criticizing a media release that the agency had issued.”
Although this request was denied, past incidents together with recent developments in the country bring to the fore the crucial online freedom issues of intermediary liability and freedom of expression.
In its 2014 State of Internet Freedoms in South Africa report, the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) highlights these gaps. It states that the absence of detailed provisions in the guidelines for recognition of industry representative bodies of ISPs “creates a situation where ISPs are not free to establish any ’notice’ or ‘notice and put-back’ mechanism, which would allow the user to respond to the allegations of infringement or, respectively, to provisionally restore the allegedly infringing content.”
The ECTA Amendment Bill of 2012 attempts to address some of the existing gaps by introducing Section 77A, which provides consumers with the right to be heard by ISPs before a takedown notice is enforced. However, this section still has limited provision for a user to respond to the allegations of infringement or to provisionally restore the allegedly infringing content. ISPs are merely required to respond to a “first take-down notice” within 10 business days (lesser days if the complainant can demonstrate irreparable or substantial harm).
The 2014 report calls for a review of South African legislation that is applicable to online freedom, specifically pointing out the need for immediate revision of the Films and Publications Act.
The report also recommends increased dialogue between civil society and policy makers to progressive law reforms, including a review of legislation that have actual or potential chilling effects on internet freedom.
Read the full State of Internet Freedoms in South Africa Report here.

CIPESA, A Snapshot

In 2013, we continue to work to promote the inclusiveness of the information society. Under three thematic areas (Internet Governance, ICTs for Democracy and Open Data & eGovernance), our projects this year span 6 counties (Ethiopia, Kenya, Rwanda, Somalia, South Africa and Uganda).  Highlights of our focus, projects and activities are summarised here.