The Legal Implications of Spreading Misinformation and Fake News about Coronavirus (COVID-19)

/ / 2020, COVID-19, News

With the rise of the Coronavirus (COVID-19) we have all experienced an immense influx of information, which can at times be overwhelming and inadvertently lead to mass hysteria. This hysteria is further amplified with the spread of misinformation and fake news. Often the information we are exposed to on the various social media platforms is unfiltered, which makes distinguishing between trustworthy sources and fake news, or misinformation, a mammoth task. Whether fake news or misinformation is published intentionally, or mistakenly, it stands to threaten the social cohesion of communities.

There is a demand for information to be readily accessible at the click of a button. This results in the need for a greater turnaround time when it comes to the publication of this information, which is not always achievable with traditional journalism. This may be one of the many reasons for the spread of fake news or misinformation. Where there is not enough time dedicated to fact checking or further research, a vicious cycle is created where content which is based on incorrect information is posted online and then circulated by countless people. This erodes the credibility of trustworthy sources and perpetuates the state of growing hysteria.   

Social media has unquestionably become an integral part of everyday life and an essential means of communication, and, for this reason, demands extensive regulation. Given the scale of online activity and evolving technology, regulating and monitoring Social Media is difficult. 

It would appear that South Africa has employed traditional legal concepts and mechanisms to this sphere in an attempt to ensure that it functions within the realm of The Constitution of the Republic of South Africa, Act 108 of 1996 (“Constitution”), while upholding its values. South Africa regulates social media platforms and the content posted on them with two different mechanisms, namely the common law, which is developed on a case by case basis, and legislation, which has been shaped by Constitutional rights, specifically freedom of expression. When applying the common law to the issue of misinformation, courts largely deal with reputational harm that is suffered by the publication of this information, while, on the other hand, legislation deals with a plethora of issues such as electronic communication and transactions, cyberstalking, protection of privacy and personal information, to name a few. In this regard, social media platforms appear to enjoy limited liability for that which is published on their platform. They are expected to deny access and/or remove reported content which is deemed to be “prohibited” by legislation. To the extent that social media platforms are compliant with this form of regulation, such compliance is largely dependent on “prohibited” content being reported by other users. Arguably this form of regulation does not go far enough, due to the fact that it allows social media platforms to unilaterally regulate content published on their own platforms, while potentially being able to streamline and manipulate that which we are exposed to at the expense of transparency and accountability. 

As of 18 March 2020, the South African Government took a bold step by gazetting regulations in response to the current state of national disaster, which, amongst other things, deals with the issue of fake news, stating that persons who publish any statement, through any medium, including social media, with the intention to deceive any other person about COVID-19; the COVID-19 infection status of any person; or 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.  

Although the law and its structures present an avenue to combat the spread of false information, it does so at a rate which doesn’t account for the speed at which information is exchanged in the digital sphere. It is doubtful that enforcers and prosecutors could possibly keep up. The private sector has acknowledged that legal action alone is insufficient to comprehensively address the harm faced by the spreading of misinformation. In response to this, technology has been developed and implemented to detect misinformation through fact checking of various characteristics that misinformation (which is posted online) generally has. These algorithms significantly assist social media platforms in intervening and removing misinformation, but have various shortcomings given the rapid rate at which information is disbursed online.   

From the aforementioned, it is clear that legal action and technological advances require reinforcement through alternative means. We then look to the government for this, especially given the impact that the spread of misinformation has on social cohesion and the preservation of it.  For any government to effectively combat the dynamic impact of misinformation, collaboration with civil society is essential. In an attempt to better equip civil society for the inevitable encounter with misinformation, awareness around the issue, as well as education on it, must be at the forefront. This allows for misinformation and fake news to be detected and removed/mitigated in its infancy. 

That being said, once the seed of doubt has been planted by misinformation, counteracting the internalisation of this information cannot be achieved by simply refuting the content. We need to go a step further and correct any misconceptions that have been created. It is for this reason that traditional journalism plays a vital role in this fight, which has no doubt regained its popularity with consumers due to the distrust that misinformation has instilled in civil society’s perception of social media platforms. 

There is no quick fix to minimise the impact of misinformation. It does, however, go without saying that the Regulations that have now been implemented to deter the spread of misinformation and fake news by the South African government is a step in the right direction. Going forward, we hope to see the South African government engage with technology firms and traditional media to further protect against and minimise the impact of fake news or misinformation. Until such time as there is a meeting of minds between all these spheres, consumers of any online information bear a responsibility to dissipate the traction that fake news and misinformation gain, especially during this time of uncertainty and hysteria. Civil society is encouraged to filter and verify the online content that they are exposed to (and share) by fact checking and proactively interrogating online content. To be responsible with the information passed on, to try locate the original source of online content and report posts that are suspected of being fake news or misinformation.

Reference list: 

  1. Regulations no. 318 issued in terms of Section 27(2) of the Disaster Management Act, 2002.
  2. D Sive & A Price ‘Regulating Expression on Social Media’ (2019) 136 South African Law Journal  51.
  3. C Novis ‘Fake News and Statistics’ (2019) 14 South African Ophthalmology Journal  38.
  4. V Koulolias, G M Jonathan, M Fernandez & D Sotirchos  ‘Combating Misinformation: An Ecosystem in Co-Creation’ last accessed from on 18 March 2020.
  5. J.D. Gericke ” Information strategies and democracy” (2000) 1, Issue 1 Phronimon, 50.
  6. C Skinner & R Rampersad ‘A revision of communication strategies for effective disaster risk reduction: a case study of the South Durban basin, KwaZulu-Natal, South Africa’ (2014) 6, Issue 1 Jamba : Journal of Disaster Risk Studies 1.
  7. Yik Chan Chin ‘Regulating social media: regulating life (and lives): regulation, ethics, accountability’ (2013), Issue 33 Rhodes Journalism Review 76.


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