12.1 Introduction and the African Context
This chapter reviews the regulation of disinformation from an African human rights’ law perspective, focusing on the right to freedom of expression and the right to vote. It provides an overview of the African regional law framework, specifically the African Charter on Human and Peoples Rights of 1981 (the African Charter)Footnote 1 and corresponding jurisprudence.Footnote 2 The chapter also analyses the way in which freedom of expression and disinformation laws have been applied in African countries, the aim being to contextualize and illustrate how African regional law plays out at the domestic level, but with an emphasis on the position in South Africa.
The African treatment of disinformation makes a valuable contribution to a book addressing the relationship between the regulation of freedom of expression, specifically disinformation, and the promotion of the democratic state. There are two key reasons. Firstly, most research on the impact of ‘fake news’ incidents on democracies has been conducted in the Global North, with few case studies considering the situation in countries positioned in the Global South. This is so, even though (a) disinformation as a concept has existed for years in the Global South and (b) credit was taken by former United States’ president, Donald Trump, for coining the term ‘fake news’.Footnote 3
Secondly, many African democracies are in a precarious position, with some governments implementing multifaceted strategies to silence their political opponents or critics, especially during elections. These include laws criminalizing the publication of false news, the filtering of online content and internet shutdowns.Footnote 4 The consequences of such strategies for democracies are dire: they undermine the rule of law, transparency, accountability, the right of citizens to receive information and the electoral processes.
Thirdly, and in juxtaposition to the use of censorship to undermine the spread of information, political campaigners in numerous African states have discovered how the freedom of the Internet can be used to create and disseminate false news and divisive digital content (through inter alia algorithms, bots, fake social media accounts, image manipulation and even the broadcast of fake information designed to appear as emanating from legitimate and reputable service broadcasters, such as the BBC).Footnote 5 Such disinformation is usually intended to distort political debate, silence opponents and win votes.Footnote 6
The South African regulation of disinformation is also insightful. South Africa’s political history makes for a fascinating country study, given its negotiated transition from a colonized and racist state, with strict censorship laws, to a constitutional democracy, based on human dignity, equality and freedom. The Bill of Rights in South Africa’s ConstitutionFootnote 7 protects both the right to freedom of expressionFootnote 8 and the right to access information.Footnote 9 Political rights are entrenched in Section 19 of the Constitution, giving every citizen the freedom to make political choices and the right to free, fair and regular elections. Section 19 should be read with Section 1 of the Constitution,Footnote 10 which provides that South Africa is ‘one, sovereign, democratic state’ founded upon listed constitutional values, with Section 1(d) recording that the constitutional democracy is based on ‘universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness’.Footnote 11 This means that, in the South African context, where the spread of disinformation is often linked to political control, a delicate balancing of competing rights is required to ensure that the regulation of disinformation does not unjustifiably violate the right to freedom of expression.
The stability of the South African democracy and a concomitant free press and media, which have been instrumental in uncovering widespread state corruption,Footnote 12 have however been undermined by challenges aimed at stifling freedom of expression.Footnote 13 Examples include a state-proposed Media Appeals Tribunal,Footnote 14 stricter state control over the flow of information through a proposed Bill on the Protection of State Information,Footnote 15 the spreading of false information and propaganda whilst electioneering,Footnote 16 and threats and attacks on journalists during election campaigns.Footnote 17 Additionally, incidents of extensive media censorship were exposed in the Judicial Commission of Inquiry into allegations of state capture, corruption and fraud in the public sector including organs of state (the ‘Zondo Commission’), convened at huge state expense between 2018 and 2022.Footnote 18
Even more intriguing is that one of the most prominent global examples of the spread of false information, the ‘Bell Pottinger affair’, occurred in South Africa in 2016.Footnote 19 It involved a British public relations firm in a ‘large-scale fake news propaganda war’,Footnote 20 designed as a clandestine campaign to perpetuate racial polarisation in South Africa. It was really aimed, however, at influencing public opinion and discrediting detractors of former South African President Jacob Zuma, threatening to expose his corrupt relationship with the Gupta family (the instigators of state capture).Footnote 21 Disinformation was spread through media outlets owned by the Guptas,Footnote 22 fake blogs and tweets (amplified by the use of bots which generated automated retweets),Footnote 23 catchphrase hashtags designed to undermine critics (such as #PravinMustGo and #WhiteMonopolyCapital),Footnote 24 and the manipulation of social media sites, including Facebook and Wikipedia. Journalists who exposed the corrupt relationship between Zuma and the Guptas were accused of being lackeys of ‘white monopoly capital’ and were repeatedly threatened.Footnote 25
Having sketched this contextual background, the chapter commences with a brief description of the definitional terms used and then links the regulation of misinformation to the rationales for the protection of freedom of expression. Thereafter, the way in which African regional law protects freedom of expression and access to information is examined, including recent developments by institutions operating at the African regional level. This is followed by examples of reported incidents of the spread of disinformation and censorship in African countries, usually occurring during election time, and a description of the type of false news laws applying in Africa. Finally, the South African approach to the promotion of freedom of expression is analysed, focusing on disinformation, which is illustrated through the normative human rights lens of freedom of expression, free and fair elections, government accountability and the promotion of democratic values.
12.2 Definitional Concepts
Any chapter in a book dedicated to the protection of freedom of expression and disinformation should use the correct nomenclature. So, whilst the chapter refers occasionally to the catchphrases ‘false news’ and ‘fake news’, the term ‘disinformation’ is preferred. Disinformation is defined as information that is verifiably false or misleading and is created and disseminated with the intention of causing public harm.Footnote 26 In the African context, public harm constitutes mainly threats to democratic principles, the undermining of free and fair elections, plus political and policy-making processes.Footnote 27 It also includes the undermining of pluralism and diversity in democratic societies, usually through the spread of vitriolic messages intended to exploit divisions in society and to subordinate vulnerable groups, based inter alia on race, ethnicity, social origin and religion.Footnote 28
‘Disinformation’ does not include information that is false, but which was not created and distributed with the intention of causing harm. Instead, this type of information is usually labelled ‘misinformation’ and includes reporting errors or news and commentary that is identified as being partisan to a particular viewpoint or political party.Footnote 29 Although there is no consensus on the correct legal meaning of fake or false news,Footnote 30 the terms refer ‘to false information that mimics news media content in order to deceive so as to influence various reactions from the public’.Footnote 31 The terms are broadly used and include hoaxes, the manipulation of photos, clickbait campaigns, deliberate political disinformation campaigns, propaganda and even genuine political satire and parodies.Footnote 32
The discussion now moves to the traditional rationales justifying the protection of freedom of expression and whether they permit the regulation of ‘false news’ and/or disinformation. It will be shown that African countries tend to regulate the dissemination of false news in overly broad terms, including the media and misinformation within their ambit. These laws impact negatively on the protection of freedom of expression and democratic principles.
12.3 The Relationship between Disinformation and the Rationales for Freedom of Expression in the African Context
The earlier contextual background confirmed that, in most African states, the public harm that disinformation causes is the spread of false information aimed at influencing public opinion during elections, silencing opposing views and undermining groups of persons perceived to have power (whether economic or political).Footnote 33 Often, the purpose of the dissemination is to gain or retain power and to control public revenues (which could potentially be misused through corruption).Footnote 34 The African context therefore demonstrates the strong connection between freedom of expression and its most commonly advanced rationale, namely that free speech is an integral component of the proper functioning of a democracy and helps to promote democratic self-government by the people. This is true both for the formation of a democracy and the strengthening of a developing or fragile democracy.Footnote 35
The democratic rationale for freedom of expression, which has influenced the development of free speech jurisprudence worldwide (including in South Africa),Footnote 36 is based on the premise that speech enables people to participate in political and social debate, to have access to governmental policies and to make informed decisions about how they are governed.Footnote 37 In sum, free expression is vital in a democracy for three reasons. Firstly, in a democracy, the people are assumed to be sovereign and should play a significant role in decision-making. Freedom of expression ensures that they receive relevant information to enable the exercise of democratic self-governance and to ensure ‘wise decisions by wise voters’.Footnote 38 Both censorship of information and the spread of disinformation can distort the thinking capacity of the community and undermine a democracy.Footnote 39 Those in power should thus not be able to manipulate the flow of public information and withhold public debate.Footnote 40
Secondly, freedom of expression acts as a check and balance against the abuse of power and promotes governmental accountability and transparency. A democratic government should be regarded as the ‘servant’ of the people, entitling the latter to criticize their leaders, government officials and implemented policy, where necessary.Footnote 41 Here, the role of the media as public watchdog is critical.Footnote 42 So, any law that stifles a free media under the guise of false news regulation should be closely scrutinized to ensure that it does not encroach unduly upon freedom of expression.
Thirdly, free speech promotes social stability by allowing everyone to participate in public speech, resulting in the expression of diverse views and an informed and sovereign electorate.Footnote 43 Ironically, as has been shown, both disinformation and its regulation have the potential to undermine the democracy rationale. To ensure the integrity of freedom of expression, a balance must be struck between the two opposing interests so that only disinformation which causes public harm (as described earlier) is restricted.
For the regulation of disinformation, another three interconnected rationales – namely the truth rationale (the ‘marketplace of ideas’ metaphor),Footnote 44 the ‘fear of government suppression’ rationale and the ‘checking valve’ theory – are also important.Footnote 45 It is arguable that false information is incapable of advancing the truth, justifying the need for disinformation laws.Footnote 46 At face value this claim appears to have merit, but it fails to consider that the underlying basis of the rationale, as formulated by John Stuart Mill, is that views censored because of their supposed falsity may in fact be true and that their elimination increases the possibility of ‘exchanging error for truth’.Footnote 47 The public are more likely to learn the truth if exposed to varied views. Plus the suppression of information, even if potentially false, undermines the attainment of human knowledge, because censors are not infallible.Footnote 48 The banning of perceived false beliefs can be dangerous because it may suppress some true beliefs, impeding the search for the truthFootnote 49 and, in turn, permitting undue censorship.Footnote 50 This is especially problematic in the African context where false news laws are introduced to censor the media expressing views critical of those in power. The reality is that the impact is oppressive governments which usually retain power.Footnote 51
The fear of government suppression theory adds weight to the argument. Its proponent, Frederick Schauer, explains that ‘[f]reedom of speech is based … on a distrust of the ability of government to make the necessary distinctions, a distrust of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power’.Footnote 52 Governments are considered ‘particularly bad’ at regulating speech, with ample historical evidence of censorship gone wrong.Footnote 53 Factually, censorship of public speech is usually entrusted to government officials, who are inclined to be biased and may suppress speech critical of government in order to retain power.Footnote 54 The African regional and sub-regional courts have regularly used this rationale to declare overly broad speech restrictions illegitimate.
The ‘government suppression’ rationale is closely linked to the ‘checking valve’ theory, proposed as a ‘vital’ supplement to the traditional free speech values.Footnote 55 Noting the abuse of government power as ‘an especially serious evil’, the claim is that free speech, in conjunction with a free press, provides an important check on government authority through exposure and deterrence.Footnote 56 The scrutiny and exposure of government activities by organized, well-financed and professional critics (the press) ensures that corrective action can be taken when an abuse of power occurs and, if aware of public scrutiny, officials are less likely ‘to yield to the inevitable temptation presented to those with power to act in corrupt and arbitrary ways’.Footnote 57 The distrust of government censorship rationale resonates in South African jurisprudence, with the judgment in S v. Mamabolo (E-tv Intervening)Footnote 58 serving as the best example. Here, it was held that ‘[h]aving regard to our recent past of thought control, censorship and enforced conformity to governmental theories … we should be particularly astute to outlaw any form of thought-control, however respectably dressed’.Footnote 59
Insofar as the regulation of disinformation is concerned, care must be taken to ensure that robust (but fair) criticism of politicians and government officials is not misconstrued as false or fake news and suppressed as such. For African states, tightly drafted laws are crucial to ensure the promotion of accountability, transparency, good governance and democratic values and principles.Footnote 60 As noted by Robert Keohane: ‘rulers generally dislike being held accountable. Yet they often have reasons to submit to accountability mechanisms. In a democratic … system, accountability may be essential to maintaining public confidence … But we can expect power holders to seek to avoid accountability when they can do so without jeopardizing other goals’.Footnote 61 When it comes to elections, accountability is even more pressing, because as Agnès Callamard has observed, state accountability is impossible ‘without a fully functioning parliament and free and fair elections, all of which require respect for freedom of … expression, transparency, [and] freedom of information’.Footnote 62 A free and robust media is an added safeguard for state accountability. False news laws which include the media in their ambit have a chilling effect on freedom of expression and the ability of the media to report and investigate freely and without fear of sanction. Similarly, they hamper the capacity of citizens to participate democratically, contribute to decision-making and enrich democratic pluralism.Footnote 63
It is now necessary to move to African regional law, noting upfront that the African Commission on Human and Peoples Rights (the African Commission) has repeatedly stressed the importance of freedom of expression and the role of the media, both as a human right and to achieve state accountability. Indeed, it has also emphasized that freedom of expression and the right of access to information held by public bodies promotes public transparency, accountability, good governance and the strengthening of democracy.Footnote 64
12.4 Freedom of Expression and Democratic Principles in African Regional Law
This section commences with an explanation of how the African Charter protects the free flow of information and freedom of expression. The textual limitations to the rights are also addressed. It then moves to the work done by the African Commission and the African Court on Human and Peoples’ Rights (the African Court), including sub-regional courts, to advance the right to freedom of expression and a free media, focusing on the link between expression and the advancement of democratic governance.
12.4.1 The African Charter
Article 9(1) of the African CharterFootnote 65 provides that every individual has the right to receive information.Footnote 66 Article 9(2) goes on to provide every individual with the right to express and disseminate opinions within the constraints of the law. Whilst Article 9(2) recognizes that the right to freedom of expression can be limited, the ‘within the constraints of the law clause’ has caused difficulty. It has, however, been interpreted to mean that only domestic restrictions consistent with state parties’ international and Charter obligations are permissible.Footnote 67 This means that laws enacted to regulate disinformation must comply with the standard legitimacy and proportionality tests for limitations to freedom of expression in international law, both offline and on digital platforms.Footnote 68
The African Charter, however, does not contain limitation clauses as in most international human rights law instruments.Footnote 69 Nevertheless, Article 9 of the Charter must be read with Article 27(2), which provides that all rights and freedoms are to be exercised with due regard for the ‘rights of others, collective security, morality and common interest’. This is a general limitation clause.Footnote 70 Arguably, false news laws could be introduced to protect the rights of others, the collective security, morality and the common interest, although, as mentioned, any restrictions to Charter rights must also comply with binding international law.Footnote 71
Article 29 of the African Charter, known as the ‘duty clause’, can also limit freedom of expression. Article 29(4) is the most relevant and places a duty on individuals to conserve and enforce national harmony. Article 29(3) imposes a duty on individuals not to compromise state security, and Article 29(7) provides that individuals should respect African cultural values in their interactions. The totality of these duties entails that individuals should contribute towards the integrity of society and respect diversity and tolerance. To the extent that the dissemination of false news does not further these goals, it could conceivably be prohibited by Article 29, but within the parameters of relevant international law.Footnote 72
12.4.2 The Normative Framework Created by the African Commission
Despite these potential limitations to freedom of expression in the Charter, the Commission has repeatedly emphasized that freedom of expression advances democratic principles. For example, in 1989, in one of its earliest Communications, the Commission stated that expression is a fundamental human right, vital for an individual’s self-development, political consciousness and participation in public affairs.Footnote 73 In its 2002 Declaration of Principles on Freedom of Expression in Africa, which developed the scope and content of Article 9, the Commission affirmed that freedom of expression is a ‘fundamental and inalienable human right and an indispensable component of a democracy’, and that any interference with freedom of expression ‘must not be arbitrary, must be provided for by law, must serve a legitimate interest and be necessary in a democratic society’.Footnote 74
The Declaration treats press and media freedom as vital and recommends self-regulation as the best system for promoting high media standards (Principle IX). The broadcast media may be more strictly regulated than print media,Footnote 75 but such regulation must comply with the legitimate restrictions for freedom of expression in international law. Thus, Principle V of the Declaration stresses that ‘[s]tates shall encourage a diverse, independent private broadcasting sector. A State monopoly over broadcasting is not compatible with the right to freedom of expression’. Where self-regulation has been futile, Principle VII permits public authorities to exercise limited media regulation, if they do not operate in a quasi-judicial manner and remain independent of state control.Footnote 76
In 2004, at its thirty-sixth Ordinary Session in Senegal, the Commission established a Special Rapporteur of Freedom of Expression in Africa.Footnote 77 The Commission has constantly renewed the mandate of the Special Rapporteur and extended it to include ‘Access to Information’.Footnote 78 Since then, the Rapporteur has played a prominent role in advancing the soft law normative standards for the protection of freedom of expression and access to information in Africa. For example, in 2012 and in 2016 the Commission modified the 2002 Declaration to address the right of access to information and freedom of expression in the digital age. It also adopted a Model Law on Access to Information for Africa, plus Guidelines on Access to Information and Elections in Africa, in 2013 and 2017, respectively.Footnote 79
In 2019, again led by the Rapporteur, the Commission adopted a revised Declaration of Principles on Freedom of Expression and Access to Information in Africa.Footnote 80 The aim was to consolidate the developments on freedom of expression and access to information, guided by African and international human rights standards, including the jurisprudence of African judicial bodies.Footnote 81 The revised Declaration has five parts, which include general principles and specific principles on freedom of expression and access to information respectively. The Preamble notes that the protection of freedom of expression and the free flow of information and ideas, especially through print, broadcast media and the Internet, is directly linked to facilitating and strengthening democracy. In turn, a strong democracy fosters transparency and efficiency. States parties must also create a framework which promotes freedom of expression and the right of access to information. This includes reviewing criminal restrictions on expression so that they are justified and aligned with international human rights law standards by, inter alia, amending overly broad criminal laws on sedition, insult and the publication of false news. The Commission has also specifically called for the abolition of domestic criminal defamation laws,Footnote 82 especially those that target journalists and permit detention as a sanction.
12.4.3 African Jurisprudence Addressing Speech Restrictions
The legitimacy of domestic speech restrictions has been addressed head-on by the African Court on Human and Peoples’ Rights (the African Court)Footnote 83 and the African Commission in two important cases, namely Scanlen and Holderness v. ZimbabweFootnote 84 and Konaté v. Burkina Faso.Footnote 85 The complainants in Scanlen alleged that Zimbabwe’s Access to Information and Protection of Privacy Act, 2003Footnote 86 infringed Article 9(2) of the African Charter, because it required the accreditation of journalists and created the offence of ‘publication of falsehoods’. Referring to the 2002 Declaration, the African Court held that whilst freedom of expression may be limited by domestic laws aimed at protecting individuals and the public from journalistic practices deviating from legitimate interests in a democracy, such laws must conform to international law standards.Footnote 87 Zimbabwe’s contention that the registration of journalists and the criminalization of falsehoods were justified on the grounds of public order, safety and the protection of the rights and reputation of others was rejected and held to be an unjustified restriction of freedom of expression.Footnote 88
In Konaté,Footnote 89 the applicant, a newspaper editor, was charged with criminal defamation. The applicant had published articles in which he accused the Prosecutor of Burkina Faso of corruption and criminal activity. The applicant was convicted on all charges and sentenced to twelve months’ imprisonment, plus a hefty fine.Footnote 90 After analysing Burkina Faso’s criminal defamation laws, the African Court declared that the domestic law criminalizing defamation with a custodial sentence violated Article 9 of the Charter, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 66(2) of the Revised Treaty of the Economic Community of West African States (ECOWAS).Footnote 91 The Court found that Burkina Faso had not demonstrated that imprisonment was a necessary limitation to freedom of expression to protect the reputation of legal officers. It also held that apart from ‘serious and very exceptional circumstances’ involving incitement to crimes or hate speech, ‘violations of laws on freedom of speech and the press cannot be sanctioned by custodial sentences’.Footnote 92 Burkina Faso’s legislationFootnote 93 thus constituted a disproportionate interference with a journalist’s right to freedom of expression.Footnote 94 This decision illustrates that criminal prosecution and imprisonment for alleged defamation of public officials is neither a ‘necessary’ nor ‘proportionate’ state interference with freedom of expression, because less intrusive measures are available for remedying injuries to individual reputation, namely civil defamation remedies.Footnote 95 The same principles apply to false news laws, as held in Scanlen.
More recently, in 2018, the Community Court of Justice of the Economic Community of West African States (the ECOWAS Court) decided Federation of African Journalists v. The Gambia.Footnote 96 The case was launched by the Federation (representing Gambian journalists broadly) and four Gambian journalists (forced into exile).Footnote 97 The journalists had been prosecuted and tortured whilst in custody for violating the Gambia’s press laws, specifically speech criticizing the President and officials. The applicants asked for a declaration that the criminal offences of sedition, false news and defamation in the Gambian Criminal CodeFootnote 98 violated the right to freedom of expression in Article 9 of the African Charter, Article 19 of the ICCPR and the rights of journalists under Article 66(2) of the Revised ECOWAS Treaty.Footnote 99 The basis of the journalists’ complaint was that the Gambian laws had made it impossible for them to disseminate information in the public interest freely.Footnote 100 They claimed that the laws had a chilling effect on press freedom by creating a fear of potential arrest and prosecution for publishing information critiquing the government. Whilst acknowledging that limitations to freedom of expression are permissible, the journalists also argued that the laws were imprecise and overly broad.Footnote 101 Regarding the false news offence specifically, the journalists accepted that journalistic errors can occur, but claimed that the imposition of criminal liability for such errors infringed the right to freedom of expressionFootnote 102 and that the law did not serve a legitimate purpose.Footnote 103
The ECOWAS Court analysed comparative international and foreign law on the right to freedom of expression and freedom of the press, stressing that vague criminal offences undermine the enjoyment of the right.Footnote 104 It used this jurisprudence to hold that narrowly drafted criminal offences were needed to regulate free speech because of the ‘chilling effect’ created by wide and vague censorship restrictions. Holding that erroneous statements are inevitable in free debate, the Court relied on Konaté to find that individuals in ‘highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether’.Footnote 105 The Court concluded that the criminal laws of the Gambia, which included a false news offence, did not guarantee a free press in accordance with the African Charter and international law. The laws had a chilling effect, unduly restricted expression and the press and were disproportionate and unnecessary ‘in a democratic society where freedom of speech is a guaranteed right’.Footnote 106 The Court thus ordered that the impugned laws be reviewed and decriminalized to conform with freedom of expression.Footnote 107
The decisions in Federation of African Journalists and Konaté were confirmed in 2020 by the ECOWAS Court in Incorporated Trustees of Laws and Rights Awareness Initiatives v. The Federal Republic of Nigeria.Footnote 108 Here, the Court held that a criminal sanction in the Nigerian Cybercrime Act 2015, penalizing expression offensive to ‘honour’, reputation and morals, violated the African Charter as being a disproportionate restriction to freedom of expression.Footnote 109
12.4.4 The Relationship between Freedom of Expression and Democratic Governance
The most recent development emanating from the African Commission on the link between media freedom and democratic principles is a September 2023 statement by the Special Rapporteur that ‘[t]he right to access information is … a key component of democracy, … when people are able to access information about how their Government is performing, they can exercise their right to freedom of expression more meaningfully. Individuals need to have access to reliable sources … to form an accurate opinion’. The Rapporteur added that the information right is both a human right and an indispensable tool empowering citizens to participate publicly and demand state accountability. The role of the media is essential. Accordingly, the Rapporteur recommends that states adopt laws guaranteeing the right of every individual ‘to receive information’ as per the African Charter, because despite efforts to protect the expression and information rights, African domestic law does not facilitate such rights.Footnote 110
Non-compliance at domestic level occurs even though Article 13 of the African Charter provides that every citizen shall have the right to participate freely in the government of their country, either directly or through freely chosen representatives in accordance with the law. Moreover, the African Charter on Democracy, Elections and Governance declares that regular, free and fair elections are the basis of a legitimate government.Footnote 111 The Democracy Charter specifically emphasises the link between the promotion of democracy, the rule of law and human rights, including free expression.Footnote 112 The rationale of the Guidelines on Access to Information and Elections in Africa, published by the African Commission in 2017, states the need to ensure freedom of expression and access to information during elections.Footnote 113 Including within their ambit a wide range of public bodies, such as political parties, election observers, the media and internet intermediaries, the Guidelines record that disclosure of information enabling the public to participate actively in public affairs is needed, plus transparency and accountability.Footnote 114 The Preface notes the importance of ‘access to accurate, credible and reliable information’. This is reinforced by Section 25 which provides that regulatory bodies must enact regulations to promote ‘fair and balanced coverage of the electoral process’, whether offline or in the digital space. Internet shutdowns are also addressed, with the Guidelines calling on states not to block the Internet or restrict media freedom during elections.Footnote 115 Should restrictions be needed, their legitimacy will be tested against the international standard of legality, legitimacy, necessity and proportionality for the limitations of rights.Footnote 116
12.5 Instances of False News Dissemination and Its Regulation in Domestic African States
Despite the strong normative framework for the protection of freedom of expression and the press at regional level, most African states continue to regulate false news, mainly through criminal sanctions. Internet shutdowns are also frequently implemented. Another reality is the repeated political manipulation of information, often with the assistance of powerful actors, aimed at retaining power and control of public finances.Footnote 117 These campaigns make it increasingly difficult for the public to discern the truth, which undermines the ability to make decisions (whether personally or in relation to public matters) and to participate in democratic processes in an informed manner.Footnote 118
Research conducted by the African Centre for Strategic Studies from 2020 to 2022 has revealed a vast array of disinformation schemes in African states, especially on digital and social media platforms.Footnote 119 Those responsible for the dissemination of this ‘information’ include political parties, individual politicians and state and non-state actors from beyond Africa (who create, inter alia, fake social media accounts, hashtags and messages designed to boost the support of leaders sympathetic and amenable to the actor or state’s particular cause).Footnote 120 This research and many other studies show that the target countries include Nigeria,Footnote 121 Kenya,Footnote 122 Ghana, Mali, Cameroon,Footnote 123 Tanzania, Ethiopia,Footnote 124 GuineaFootnote 125 and Sudan,Footnote 126 amongst others.Footnote 127
It is therefore not surprising that many African states have either enacted false news laws or made use of the existing common law colonial-era crimes of defamation and libel to punish the dissemination of information considered misleading or false.Footnote 128 Unfortunately, African false news laws are also usually framed in broad terms and criminalize, inter alia, the spreading of false rumours, insults and complaints against government or public authorities; the fostering of dissent and unrest between sections of the community through the publication of false news; and the uttering of hate speech designed to incite hatred, violence or any type of disturbance on grounds such as race, religion and ethnicity.Footnote 129 Most of these laws are justified to protect national security and social harmony.
The irony of such regulation, however, is that the targets are usually journalists and those critical of authoritarian governments, the real aim being to silence opposition and to enable existing regimes to maintain political control. The consequence is a severe impact on democratic principles in African states,Footnote 130 which Charles Fombad has labelled the ‘crisis of democracy in Africa’.Footnote 131 Fombad claims that
Many recent elections … have degenerated into little more than competitive authoritarianism. This is because democratic reforms and periodic elections of the past two decades have come to be increasingly used as a ‘survival strategy’ by Africa’s autocratic rulers. Elections … come in handy to keep opposition parties in the political game, lest the regimes lose their democratic façade while incumbents perpetuate their rule.Footnote 132
There are some African states, however, which have adopted freedom of information laws that enhance expression, press freedom and democratic principles. These include Namibia, Botswana and Zambia.Footnote 133 But, as demonstrated in Section 12.6, South Africa is the outlier, with the Constitutional Court using the Bill of Rights in South Africa’s Constitution, 1996, to protect and promote freedom of expression, political rights and democratic governance, even in the face of attempts to silence the press and state condemnation of the courts for interfering in executive matters.
12.6 The South African Law
This section will address the way in which freedom of expression and the right to free and fair elections are protected in South African law. Starting with the constitutional framework setting the normative benchmarks for the relevant rights and their legitimate restriction, how South Africa regulates false news is then explained. It will be shown that despite many attempts by the state to stifle media freedom, the South African judiciary has consistently endorsed and promoted a free flow of information and debate (both generally and during elections). This approach is informed by the need to protect the status of the constitutional democracy and open and accountable governance, which underpins the Constitution, and stands in stark contrast to the apartheid approach, where state censorship was rife.
12.6.1 The Constitutional Protection of Freedom of Expression
Section 16 of the South African Constitution entrenches the right to freedom of expression. It provides:
16. Freedom of Expression
(1) Everyone has the right to freedom of expression, which includes –
a) freedom of the press and other media;
b) freedom to receive or impart information or ideas;
c) freedom of artistic creativity;
d) academic freedom and freedom of scientific research.
(2) The right in sub-section (1) does not extend to –
a) propaganda for war;
b) incitement of imminent violence;
c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
The South African courts have confirmed the value of freedom of expression in a democratic society on many occasions. For example, in South African National Defence Force Union v. Minister of DefenceFootnote 134 Judge O’Regan held that expression plays a significant role as ‘a guarantor of democracy’ and facilitates the ‘moral agency’ of society, permitting individuals to form and express opinions and ideas.Footnote 135 Nevertheless, freedom of expression is not an absolute guarantee; nor is it a paramount value.Footnote 136 It is one of a ‘web of mutually supporting rights’,Footnote 137 and must be interpreted in accordance with constitutional valuesFootnote 138 and other constitutionally protected rights, including the rights to human dignityFootnote 139 and to participate in free and fair elections.Footnote 140 It should also be exercised with ‘due deference’ to ‘the pursuit of national unity and reconciliation’.Footnote 141
The ambit of Section 16(1) is broad. The word ‘everyone’ includes natural and juristic persons,Footnote 142 citizens and non-citizens.Footnote 143 ‘Expression’ is protected, which is a wider concept than ‘speech’.Footnote 144 The Constitutional Court’s approach to freedom of expression cases is to define expression widely at the threshold stage, deferring the adjudication of the value of the expressive act in question to the limitation analysis in terms of Section 36 of the Constitution.Footnote 145 Therefore, in De Reuck v. Director of Public Prosecutions (WLD),Footnote 146 finding that child pornography was included within the ambit of expression, the Court held that the right ‘does not warrant a narrow reading’ and that any limitation ‘must satisfy the rigours of the limitation analysis’.Footnote 147 Confirming Handyside v. United Kingdom,Footnote 148 the Court found that the right to express oneself and the corresponding right to receive information and ideas extends ‘not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb’.Footnote 149 The wide interpretation of ‘expression’ means that the right has many components.Footnote 150 So, expressive acts such as flag burning, nude dancing,Footnote 151 the publication of photographs, the display of posters and works of art, dressFootnote 152 and symbolic gestures (such as salutes)Footnote 153 are included within expression and are prima facie worthy of constitutional protection.
It is only during the later proportionality enquiry that the value of the expression in issue is considered to determine the justifiable limitation of the right to free expression. Here, the Court must assess whether the expressive act promotes the rationales underpinning the right and distinguishes between expression that lies at the ‘periphery’ of the right as opposed to expression which unworthy of protection. In De Reuck, for example, the Court had no difficulty in holding that child pornography was ‘expression of little value’.Footnote 154
Section 16(1) enumerates four types of expression which are specifically listed. Whilst these are positioned at the core of the right (as opposed to its periphery), they should not be interpreted as being more valuable than other forms of unspecified expression. The listed categories simply expand upon the meaning of expression. They do not fix the scope of constitutionally protected expression. Other types of expression can also bear equal weight, even though not listed textually. The role played by political expression is clearly important given the emphasis on how free expression protects the democracy.
Freedom of the press and other media is specifically mentioned in Section 16(1)(a) because of the significant role that the media play in ensuring the promotion of a democracy. The South African courts have unfailingly confirmed the media’s role in a democratic society.Footnote 155 As indicated earlier, in Print Media the Court linked press freedom to a functioning democracy. The Court also confirmed that laws limiting press freedom must be closely monitored so as not to undermine the public’s right to a strong media. Similarly, in Mail and Guardian Media Ltd v. MJ Chipu NO (Chairperson of the Refugee Appeal Board), the Court held that the media is a ‘key facilitator’ of freedom of expression.Footnote 156 There is thus no doubt that media and press freedom is positioned at the core of the right and that laws restricting it will face a stiff challenge in the limitation analysis.
The role of the press and the media, however, is two-dimensional – their right is protected by Section 16(1)(a), but they must also fulfil their duty to society. The Court addressed this in Khumalo v. Holomisa,Footnote 157 holding that the media should not only rely on freedom of expression, but must also ‘foster’ it, and that people’s ability to function effectively in society depends on how the media fulfils its obligations. The media are thus both right bearers and ‘bearers of constitutional obligations’.Footnote 158
Section 16(1)(b) protects the right to receive and impart information and ideas – the dual aspect of expression.Footnote 159 This is an integral component of freedom of expression as the reception of information and ideas enables individuals to participate fully in public society, buttressing the constitutional values which envisage a responsive, accountable and open democratic state.Footnote 160 Accordingly, in Islamic Unity Convention v. Independent Broadcasting Authority,Footnote 161 the Court found that the Broadcasting Code in issue infringed not only the right of broadcasters to disseminate information, but also deprived the public of the right to receive diverse views.Footnote 162
The distinction between ideas and information is interesting, especially in the context of false news laws. The types of expressive acts classified as ‘information’ must clearly be distinguished from ‘ideas’, which term is usually widely defined to include opinions, thoughts, plans, creative works and so on. In The Citizen 1978 (Pty) Ltd v. McBride,Footnote 163 the Court held that ‘information’ includes ‘only factual statements’, as opposed to opinions and comments,Footnote 164 but this conclusion is debatable, as discussed below. The textual inclusion of ‘artistic creativity’ as a form of protected expression in Section 16(1)(c) is a consequence of strict censorship during apartheid.Footnote 165 The same is true for academic freedom. All forms of art are protected, including music, books, paintings and theatre productions.Footnote 166
An interesting question that the Court may have to determine when dealing with potential ‘fake news’ cases is whether manipulated photos and their ilk could be classed as artistic expression and thus be positioned at the core of the right. This is because the courts acknowledge that artists play a significant role in society by contributing to the existing dialogue and social debate, usually because their views can be controversial and are critical for the development of a vibrant culture in a democratic and functioning society.Footnote 167 Also, artists are often at risk of censorship, probably because their work is displayed in the public domain, engaging society and eliciting diverse reactions.Footnote 168
Section 16(2) lists the types of freedom of expression which are not constitutionally protected, namely propaganda for war, incitement of imminent violence and hate speech (which is strictly defined). The boundaries of the categories of expression excluded from constitutional protection are important, because Section 16(2) is definitional, and the Court has held that legislative measures which restrict expression beyond the scope of constitutional exclusion must be justified in terms of the general limitation clause. However, limitations falling within the strict parameters of Section 16(2) will not limit freedom of expression.Footnote 169 Plus, all limitations must be restrictively interpreted.
None of the listed exclusions to protected expression in Section 16(2) include false news regulation. This means that any law enacted to restrict the dissemination of information, whether false or not, will be treated as limiting freedom of expression and require justification in terms of the limitation clause, which is introduced in Section 12.6.3, following an examination of the protection of political rights in the Constitution.
12.6.2 Political Rights
Section 19 of the Constitution, headed political rights, reads as follows:
(1) Every citizen is free to make political choices which includes:
a) the right to form a political party;
b) to participate in the activities of, or recruit members for, a political party; and
c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.
(3) Every adult citizen has the right:
a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
b) to stand for public office, and if elected, to hold office.
This section is complemented by Section 1(d) of the Constitution – which guarantees a multi-party system of democratic government, to ensure accountability, responsiveness and openness.Footnote 170 These values were stressed in My Vote Counts NPC v. Minister of Justice and Correctional Services (My Vote Counts 11),Footnote 171 and arise by virtue of South Africa’s history under apartheid, where the majority of South Africans were denied the right to vote.Footnote 172
The political right is cast in generous and unqualified terms. Thus, the Court in Ramakatsa v. MagashuleFootnote 173 held that ‘the section means what it says … It guarantees freedom to make political choices and … safeguards a member’s participation in the activities of the [political] party concerned … It protects the exercise of the right not only against external interference but also against interference arising from within the party’. The right to vote thus upholds the democracy and is linked to human dignity – it is a ‘badge of dignity and of personhood’.Footnote 174
Section 19 must be applied and interpreted in its entirety. The Constitutional Court in NNP v. Government of South AfricaFootnote 175 held that the right to vote will echo a hollow ring without the right to free, fair and regular elections. As to the meaning of free and fair elections, in Kham v. Electoral Commission,Footnote 176 the Court held that the ‘free and fair’ requirement is singular and not a conjunction of two disparate elements. The term includes ‘both the freedom to participate in the electoral processes and the ability of the political parties and candidates, both aligned and non-aligned, to compete with one another on relatively equal terms’.Footnote 177
In the main, elections in South Africa are contested by political parties – they occupy centre stage and play a vital role in facilitating citizens’ political rights.Footnote 178 But although political parties have been described as ‘the engine of democracy in South Africa’, there is little regulation of their internal functioning. Nonetheless, as outlined in Ramakatsa, political parties must comply with the Constitution, their own rules, the Electoral Code of ConductFootnote 179 and the Electoral Commission Act.Footnote 180 Most importantly, rules of political parties must be consistent with the Constitution. As discussed in Section 12.6.6., the Electoral Act regulates the dissemination of false news during elections, the legitimacy of which was raised in the important case of Democratic Alliance v. African National Congress.Footnote 181
In My Votes Counts NPC v. Minister of Justice and Correctional Services,Footnote 182 the Court had to consider whether voters have a right to know who funds political parties and whether a right to vote includes an ‘informed vote’. A related but key question was whether political parties and the state have a duty to record, preserve and disclose the sources of their private funding. This issue required an analysis of whether South Africa’s Promotion of Access to Information Act (PAIA)Footnote 183 was unconstitutional because it failed to oblige political parties to record and disclose their private funding sources. The Court held that people are entitled to information held by political parties because such information is critical to the fulfilment of the political right, especially the right to vote. The Court gave three reasons. Firstly, citizens are entitled to make informed choices when voting so that their vote is an expression of their genuine will.Footnote 184 Secondly, the duty of disclosure helps to combat corruption and ensures that elected representatives serve the public interest, rather than the agendas of private entities or foreign governments.Footnote 185 Thirdly, this interpretation aligns with that in international law.Footnote 186 The Court added that it is not only voters who are entitled to disclosure but also the media and other agents that are obliged to educate the voting public.
The PAIA was thus declared unconstitutional to the extent that it excluded political parties from its ambit and did not require parties to preserve and record information about private funding and make it readily accessible to the public. Parliament was ordered to amend the PAIA or to enact new legislation to promote the effective exercise of the right to make political choices and to participate in elections. The PAIA has since been amended,Footnote 187 and the Political Party Funding ActFootnote 188 has been enacted to give effect to the Court’s order. It is clear that the South African Constitutional Court has aligned the rights to freedom of expression, access to information and free and fair elections to the founding constitutional values of democracy, freedom, responsiveness, transparency and accountability.
12.6.3 The General Limitation Clause
Section 36(1) provides as follows:
- 36
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
36 Limitation of Rights
Section 36(1) permits the justifiable infringement of a protected right if the limitation is both rational and proportional. The limitation must serve a ‘compellingly important’ purpose. A right can only be limited if the limitation will achieve its purpose and there is no other realistic way to achieve that purpose.Footnote 189
A two-stage analysis is adopted when rights are limited. In the first stage, the ambit of the right in issue is determined by way of an interpretative process – the ‘threshold stage’.Footnote 190 The right is usually interpreted generously, it being considered unnecessary ‘to shape the contours of the right in order to accommodate pressing social interests’.Footnote 191 Should a law of general application violate the protected scope of the right; then a second-stage justification evaluation must be conducted. Here, a broad assessment utilizing the Section 36(1) factors is undertaken to determine whether the infringement of the right is justifiable in an open and democratic society, based on human dignity, equality and freedom. The party arguing for the limitation (usually the state) bears the onus to discharge the ‘burden of justification’ by demonstrating that the rights infringement is justifiable.Footnote 192
To date, the South African courts have been very reluctant to permit the introduction of laws that limit press and media freedom. This is not only because of the impact of past censorship during the apartheid eraFootnote 193 but also because the courts have recognized the crucial role that the press play when it comes to protecting accountable and transparent governance, a key component of an open and democratic society based on human dignity, equality and freedom.Footnote 194 Laws that limit both freedom of expression and the right to vote will thus be strictly scrutinized by the courts during the Section 36 proportionality analysis.Footnote 195 The state will have to show that there is a legitimate need for any such law, with the law’s purpose being rationally connected to the outcome it aims to achieve.
South Africa does not have a specifically enacted legislated false news restriction. However, the dissemination of disinformation could be regulated via the common law of defamation and other pieces of legislation regulating cybercrimes, films and publications and elections. Some of these laws and how they have been interpreted and applied by the courts are now briefly introduced.
12.6.4 Defamation: The Common Law Civil Remedy and a Criminal Offence
Most of South African defamation cases are civil in nature,Footnote 196 aimed at protecting the good name or reputation of both natural and juristic persons.Footnote 197 Very few cases of criminal defamation are reported and there have been many calls to repeal the common law crime of defamation.Footnote 198 Civil defamation is addressed first, followed by criminal defamation. It will be shown that neither remedy has been used to address false news types of cases and moreover that the courts have developed the law of defamation to balance freedom of expression (of the media particularly) and the right to human dignity.
12.6.4.1 Defamation
A person whose reputation has been damaged by the publication of an intentional and unlawful (or wrongful) defamatory statement may claim damages from the wrongdoer, alternatively a so-called take-down order, often coupled with an order that the wrongdoer retract the statement and/or apologize.Footnote 199 Once the plaintiff proves that there has been publication of a defamatory statement,Footnote 200 the elements of wrongfulness and intention are presumed to have been met. The defendant must then prove a ground of justification (a defence) to rebut the presumptions.Footnote 201
In the constitutional era, the courts have taken active steps to develop the law of defamation, by balancing the rights to freedom of expression and human dignity.Footnote 202 Media freedom has benefited especially,Footnote 203 with the courts creating special grounds of justification for the media. So, in Holomisa v. Argus Newspapers,Footnote 204 the Court held that ‘a defamatory statement which relates to free and fair political activity is constitutionally protected, even if false, unless the plaintiff shows that, in all the circumstances of its publication, it was unreasonably made’. This created an exception to the rule that the defence of truth and public interest could be used only where a statement is factually true. Known as the reasonableness defence, the exception was introduced to protect press freedom to create leeway for false statements around free and fair political activity.
The defence was confirmed in National Media Ltd v. Bogoshi.Footnote 205 The Supreme Court of AppealFootnote 206 held that a publisher could avoid liability for defamation where, even if it could not prove that the statement was true, it could establish that publication was reasonable. The Court held that: ‘[T]he publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time.’Footnote 207 Relevant factors include: whether the statement related to political discussion; the tone in which the report was written; the nature of the information on which the allegations were based; the reliability of their source; and steps taken to verify the information. The defence of reasonable publication was confirmed in Khumalo, where the Constitutional Court stressed that the mass media play a significant role in the protection of freedom of expression to enable individuals to receive and impart information and ideas.Footnote 208
The Khumalo court did, however, warn that ‘while a person cannot claim a strong constitutional interest in protecting their reputation against the publication of truthful but damaging statements, neither do publishers have a strong constitutional speech interest in the publication of false material’.Footnote 209 As shown below, this caution did not deter the Court from refusing to enforce a ban on the publication of false information during elections.
Most recently, in 2022, in Reddell v. Mineral Sands Resources (Pty) LtdFootnote 210 the Constitutional Court took further steps to protect freedom of expression, but in relation to whether trading companies could sue environmental activists for reputational loss.Footnote 211 The statements in issue (distributed on multiple platforms, including YouTube, as an e-book and on online news sites) accused the plaintiff mining companies of harming the environment. The environmentalists (as defendants) challenged the constitutionality of the common law defamation rule permitting trading companies to sue for non-patrimonial damages for reputational loss. They claimed that the existing law undermined their right to freedom of expression and that the companies, as juristic persons, could not rely on the right to inherent human dignity to justify a claim for reputational damage.Footnote 212
The majority of the Court agreed, holding that a claim for general damages ‘to a trading corporation for harm to its reputation infringes the … right to freedom of speech, specifically in relation to speech which is of public importance or which requires public debate and participation’.Footnote 213 The Court confirmed that the speech in issue was in the public interest (environmental harm) and was of considerable value in an open and democratic society. The Court stressed that the activists created a platform for public participation about environmental compliance by large mining companies and that such speech ‘warrant[s] a high standard of protection’.Footnote 214 It added that ‘discourse about matters that affect all or many of us are of grave public concern … must be encouraged and not stifled in a vibrant democracy like ours’.Footnote 215 This did not mean that the companies had no alternative relief: if necessary, they could apply for an interdict (in the form of a takedown order),Footnote 216 a declarator, a retraction or an apology.
The minority in Reddell, however, was not prepared to develop the common law of defamation to this extent. Whilst the minority’s focus was on the interpretation of the right to human dignity, it echoed Khumalo’s warning about the limited value of false information, especially in the digital age, given the reach of social media platforms.Footnote 217 It added that ‘[p]ublic discourse is speech that takes place in public. Social media is the town square writ large. It is pre-eminently the platform of public discourse. Issues of legitimate debate is a concept of bountiful elasticity. But a subject may be one of legitimate debate and yet what is said may be false, even hateful, and reputationally ruinous.’Footnote 218 Thus, the extent to which freedom of expression can be relied upon in defamation cases must consider ‘what speech is used, how it is used, and with what consequences’. Where a defamatory statement is a ‘blatant falsehood that does great reputational harm’, expression should not prevail.Footnote 219 It is noteworthy, of course, that the majority disagreed and protected critical expression where public participation is crucial.
It is thus clear that whilst the South African courts have not had to deal directly with a ‘false news’ type of case under the realm of defamation, the courts are aware that such a case would require careful consideration given the value placed on freedom of expression. Whatever the future outcome, it is certainly highly unlikely that the courts would permit a criminal sanction for defamatory speech, as is now demonstrated.
12.6.4.2 Criminal Defamation
The crime of defamation is defined as the unlawful and intentional publication of a matter concerning another person which tends to injure their reputation. In 2008 in Hoho v. SFootnote 220 the Supreme Court of Appeal had to consider whether the crime of defamation still exists in South African law and whether it is constitutionally legitimate. The accused, Luzuko Hoho, had been convicted of twenty-two counts of criminal defamation and was sentenced to three years’ imprisonment suspended for five years and, in addition, to three years’ correctional supervision. Hoho was a researcher employed by a Provincial Legislature and had published various leaflets in which he defamed the Premier, the Speaker and various other politicians. He accused them of corruption, bribery, financial embezzlement, sexual impropriety, illegal abortion and fraud.
Hoho raised various defences, including that the crime of defamation no longer existed in South African law and that, even if it did, it was unconstitutional. The Supreme Court of Appeal disagreed. It held that the crime had not been abrogated by disuse and that it did not unjustifiably infringe the right to freedom of expression.Footnote 221 The Court reasoned that whilst a criminal sanction is a drastic measure, the limitation to freedom of expression was balanced by the onerous burden of proof borne by the state in criminal cases, the parallel between the need to protect physical integrity (assault) and injury to reputation, and the fact that there was still a need for a criminal sanction to protect a person’s reputation.Footnote 222
Despite this, it is anticipated that legislation may be passed soon to decriminalize defamation in South Africa. Indeed, as far back as September 2015, the state announced that it would introduce legislation to decriminalize defamation on the grounds that it unjustifiably infringes the right to freedom of expression.Footnote 223 Whilst the legislation is yet to be tabled, it is highly likely that the current Constitutional Court would have no difficulty in declaring criminal defamation unconstitutional, especially given the calls by the African Commission to decriminalize defamation and the added protection the Court has given to freedom of expression in civil defamation cases.
12.6.5 The Cybercrimes Act 2020
The Cybercrimes Act, which criminalizes unlawful activities in cyberspace, commenced on 1 December 2021.Footnote 224 The Act was introduced because it was recognized that the existing common law crimes were incapable of regulating criminal conduct committed online.Footnote 225 Advances in digital technology amplified the need for the Act, aggravated by the ease with which cybercrimes such as fraud, extortion, forgery, child pornographyFootnote 226 and hacking could be committed. As these crimes became more prevalent, it was obvious that legislated criminal offences, with a specifically adapted procedural framework, were needed to regulate unlawful conduct committed online.Footnote 227
The long title to the Act states that it was enacted to create and penalize cybercrimes.Footnote 228 Chapter 2 of the Act contains five substantive criminal law segments. Part I regulates cybercrimes recodified from existing common law crimes,Footnote 229 and adds new offences. These include disclosure of an electronic data message that causes damage to property or violence against a person or group of persons,Footnote 230 the unlawful and intentional disclosure of a data message of an intimate image of a personFootnote 231 and the so-called malicious communication crimes.Footnote 232 Part III creates offences in the context of various cybercrime activities, such as attempting, aiding, inducing, inciting or instigating a person to commit a specified offence. Part IV deals with competent verdicts and Part V permits the grant of court orders to protect complainants from the harmful effects of malicious communications. Provisions are also created to regulate the obligations of electronic communications service providers and financial institutions to report cybercrime offences and to preserve information relevant to an investigation.
From a disinformation perspective, it is interesting that the Act does not contain a specific provision criminalizing the dissemination of false data (or news) intended to cause harm. Instead, such conduct would have to be addressed in terms of either cyber fraudFootnote 233 or cyber forgery and uttering offences,Footnote 234 which criminalize, inter alia, the unlawful use/passing off of false data or a misrepresentation with the intention of defrauding another person to cause harm, or the malicious communications provisions. The latter offences are intended to capture within their ambit the electronic communication of data messages which are published with the intention of inciting damage to persons or their property based on identifiable group characteristics.Footnote 235 It is thus clear that the Cybercrimes Act was not enacted to regulate false news or disinformation, a conclusion which is supported by the fact that such a purpose is not included in the Act’s objectives.Footnote 236
12.6.6 The Electoral Act 78 of 1993
The Electoral Act is the domestic legislation that regulates and gives normative content to the right to free and fair elections and the right to vote. The Act contains various provisions which prohibit certain types of conduct by political parties and other actors during elections. The aim is to ensure the achievement of free and fair elections. There are seven main prohibitions. One of these is Section 89(2)(c) of the Act which prohibits the publication of intentionally false statements, with the intention of influencing the conduct or outcome of an election. Any person who contravenes the section is guilty of a criminal offence and may be fined or imprisoned for up to ten years.
Schedule 1 to the Electoral Act contains the Electoral Code of Conduct.Footnote 237 Like the Act, it prohibits certain types of conduct to promote ‘(a) tolerance of democratic political activity, and (b) free political campaigning and open public debate’. Item 9 of the Electoral Code of Conduct provides that no registered party or candidate may publish false or defamatory allegations in connection with an election. This part of the Code must be read with Item 4 thereof, which records that freedom of political expression is a core component of a free and fair election.
These provisions were interpreted by the Constitutional Court in Democratic Alliance v. African National Congress.Footnote 238 The case concerned an SMS sent by the Democratic Alliance (DA)Footnote 239 to 1,593,682 persons in the Gauteng province, approximately six weeks before the date set for the 2014 national elections. The SMS read: ‘The Nkandla report shows how Zuma stole your money to build his R246mFootnote 240 home. Vote DA on 7 May to beat corruption. Together for change.’ The SMS was based on the Nkandla Report, penned by the Public Protector,Footnote 241 released a day before the SMS was sent and reporting that President Zuma had improperly used public finances for security upgrades to his private residence (Nkandla). The African National Congress (the ANC – and Zuma’s party) launched an application asking for a declaration that the SMS violated the Electoral Act and the Code. The ANC requested an order restraining the DA from re-disseminating the message and a retraction. The ANC argued that the SMS alleged that the Nkandla Report stated that President Zuma had committed theft, but that this was not the case, and that the SMS therefore contained false information published with the intention of influencing an election in breach of the Electoral Act.
In response, whilst accepting the constitutional validity of the Electoral Act provisions, the DA denied that the SMS was false. It argued that the SMS meant that the Nkandla Report merely demonstrated how Zuma had misused public funds and that ‘read in light of the Nkandla Report, the SMS express[ed] an opinion that a fair person might honestly and genuinely hold in light of the facts in the Report, and the Report must be understood and read in its totality’.Footnote 242 A key issue therefore was whether the SMS amounted to an expression of comment or opinion as opposed to a statement of fact.
To address this question, the Court had to interpret Section 89(2)(c) of the Act, as read with the Code. The Court opted for a restrictive interpretation because of the principle that legislation limiting a right (here freedom of expression) should not be interpreted broadly, especially when cast as a criminal sanction.Footnote 243 Recognizing that freedom of expression serves many purposes, including individual autonomy and the promotion of a vibrant democracy, the Court stressed the need for active participation by informed voters during elections. Linking the right to the apartheid struggle and the censorship that existed then, the Court held that ‘[i]n celebrating the democracy we have created, we rejoice as much in the right to vote as in the freedom to speak that makes that right meaningful. An election without as much freedom to speak as is constitutionally permissible would be stunted and inefficient’.Footnote 244
Another important factor was that the right to freedom of expression underpins many of the other constitutionally protected rights, which together:
protect the rights of … like-minded people to foster and propagate their views. They confirm the importance, both for a democracy and the individuals who comprise it, of being able to form and express opinions – particularly controversial or unpopular views, or those that inconvenience the powerful. The corollary is tolerance. We have to put up with views we don’t like … It means the public airing of disagreements. And it means refusing to silence unpopular views.Footnote 245
In the electoral context, public debate is especially valuable because it contributes to ‘opinion-forming and holds public office-bearers and candidates for public office accountable’.Footnote 246 Importantly, for open and transparent governance, the Court added that:
Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.Footnote 247
Having reached this conclusion, the next question was ‘what kinds of ‘information’ and ‘allegations’ were included in the prohibition in Section 89(2)’. In other words, were both factually incorrect statements and expressions of opinion prohibited or only the former?Footnote 248 The answer, according to the majority, was that only false statements or information were prohibited,Footnote 249 and that the SMS was clearly an opinion, alternatively a comment, as it appeared in the Report, to which it directly referred for its authority. Thus, the DA had not violated the Act.Footnote 250 This decision, whilst controversial at the time, demonstrates that the South African courts take their constitutional mandate in Section 165 of the Constitution seriously – that is, the duty to uphold the Constitution and to apply it, without fear or favour. The consequence is that laws regulating false news or information, especially when cast as penal measures, are unlikely to be condoned by the courts.
12.6.7 COVID Regulations under the Disaster Management Act 2002
The first false news laws in South Africa were prompted by the COVID-19 pandemic, under the Disaster Management Act 2002 (DMA), giving the executive extensive powers, including the power to implement legislation forthwith and without consultation. South Africa declared a national state of disasterFootnote 251 in terms of the DMA in March 2020 in response to the pandemic.Footnote 252 A mandatory twenty-one-day lockdown commenced on 25 March 2020.Footnote 253 This resulted in the closure of schools, universities, churches and businesses, with freedom of movement being severely restricted.Footnote 254 The lockdown was extended repeatedly through regulations authorized by the DMA and operated at different levels, depending on the rise in the number of COVID-19 cases,Footnote 255 but officially ended on 4 April 2022.Footnote 256
Disasters in terms of the DMA are classified according to whether they are local, provincial or national. A disaster is treated as a national disaster if it affects more than one province (Section 26(1)), which was clearly the case during the pandemic. The consequence was that the national executive became primarily responsible for the coordination and management of the crisis. A minister designated by the President was given the power to make regulations or issue directions concerning a wide range of matters,Footnote 257 including, inter alia, ‘other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimize the effects of the disaster’. Whilst there were numerous challenges to the constitutionality of the Act and the regulations issued thereunder, most of these challenges were ineffective, the courts deferring to the state’s prerogative to manage the pandemic and justifying the restriction of rights on the basis that the lockdown regulations were a legitimate and rational response to both a national and international crisis.Footnote 258
From a freedom of expression perspective, of particular concern was a regulation which made it an offence to ‘publish a statement through any medium with the intention to deceive about a narrow range of information related to the transmission of the virus, personal infection status and government measures to address the pandemic’. As a criminal sanction, if convicted, an accused could be penalized by a fine or imprisonment for six months (or both).Footnote 259 This prohibition was introduced as soon as the lockdown was announced and was intended to protect public health and prevent the spread of rumours about the virus, the impact of vaccines and so on. The regulation was in fact implemented, with arrests reported (an accused was alleged to have disseminated false news about test kits) and the government operating a reporting system, which it named Real411.Footnote 260 People were encouraged to report ‘disinformation’ via a mobile app, website or a WhatsApp number, and alleged false news incidents were then published on the government website, while awaiting verification by a Digital Complaints Committee, run by a non-governmental organization called Media Monitoring Africa.Footnote 261 Whilst monitoring independent of government was welcomed, the regulation attracted extensive critique, particularly because the government actively encouraged whistleblowing.Footnote 262
When the lockdown ended in April 2022 the regulations issued under the DMA were set aside and no longer applied. It is a serious worry, however, that the government has since attempted to use the DMA as a tool to manage other national emergencies, including Eskom loadshedding. The problem with this approach is that it permits governmental overreach, does not provide for parliamentary oversight and results in the introduction of legislation without following the ordinary constitutional rules for law-making.Footnote 263
12.7 Conclusion
The aim of this chapter was to present an analysis of the regulation of disinformation in Africa, focusing on African regional law and domestic false news laws in various African states, but with an emphasis on the South African law. The chapter revealed the tension between the need to protect freedom of expression and the right to free and fair elections in the context of a continent which is regularly subjected to disinformation campaigns aimed at undermining public participation in democratic governance and extending political control. Despite commendable efforts at the regional and sub-regional levels to promote the importance of a free press and media for the advancement of accountable and transparent governance in the digital age, the reality is that the dissemination of fake news in African states remains prevalent and poses a severe risk to democracy, especially as digital technology becomes more sophisticated. The harm caused by disinformation cannot be ignored given the fragile state of democracy in most African states. The commitment of the South African courts to the balancing of freedom of expression with the right to an informed vote, as a component of democratic governance, provides some hope, but a more sustained and globally integrated effort encompassing regulatory reform and promotional measures, including international partnerships, is needed if Africa is to withstand the threat of disinformation.
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