Timothy Fish Hodgson Khanyo Farise Justice Mavedzenge
The freedom to communicate and express opinions is necessary to effectively demand and enforce government obligations and accountability. In countries with high levels of poverty and inequality, contributed to by corruption and maladministration, it is especially critical for people to be able to exercise their rights to freedom of expression and information so that they can hold their governments accountable.
The need to enforce government accountability is particularly important at this moment, when various countries around the globe are battling to prevent the spread of Covid-19. Zimbabwe and South Africa have declared national disasters while Eswatini has declared a national emergency to restrict the movement of people. These measures have drastic adverse effects on economies and livelihoods. In developing countries if these measures are not carefully designed and managed they can have a disproportionate effect on the poor.
Fortunately, international, regional and domestic human rights treaties, which are binding on all branches of government, protect the right to freedom of expression, including the right to communicate and express ideas and opinions. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides that “everyone shall have the right to freedom of expression” including “the freedom to seek, receive and impart information and ideas of all kinds”. Similarly, Article 9 of the African Charter recognises the right to “express and disseminate” opinions as well as the right to “receive information”.
The Constitutions of South Africa, Eswatini and Zimbabwe guarantee the right to freedom of expression. These states, like all others, have the obligation to respect, protect and fulfill the right to freedom of expression. Governments must ensure that laws and policies facilitate rather than prevent free expression. Laws and policies that unduly inhibit or prohibit expression amount to violations of human rights obligations.
Under both international law and the law of these countries, freedom of expression, like most rights, may be subject to restrictions in limited circumstances. The right to expression of individuals may be limited, in the context of Covid-19, by states to achieve the purposes of protecting public health.
Freedom of expression in the context of public health emergencies
There are clear standards in international human rights law for proscribing the permissible degree and nature of limitations that are lawful for public health purposes. As the UN Human Rights Committee has explained and is captured by the Siracusa Principles, limitations of rights even in the context of states of emergency or national disaster must be: directed towards a legitimate objective, strictly necessary, the least restrictive means to reach this objective, non-arbitrary, non-discriminatory and of limited duration. Clearly set out and narrowly defined laws must provide for any such limitations.
To deal with the outbreak of Covid-19, governments have raced to enact regulations providing for the restrictions of certain rights, such as freedom of movement, to reduce death and illness and protect public health.
Other restrictions are of debatable value in the battle against Covid-19, and amount to unlawful interferences on human rights. One such example is “fake news” regulations. Though it is crucial to protect public health it is important to guard against creeping intrusions on the cornerstones of democratic society and the rule of law.
Covid-19 fake news regulations in South Africa, Eswatini and Zimbabwe
In South Africa, regulations criminalise the publication of any statement made “with the intention to deceive any other person” about Covid-19, about the infection status of any person or any measure taken by the government “to address Covid-19”. This offence carries a possible fine or up to six months in prison.
This regulation is overbroad because the deceit is not connected to a sufficiently particular form of conduct resulting in a specific harm. There are also practical evidentiary issues making this difficult to enforce. How will an individual prove, after posting something on Facebook or forwarding a Whatsapp message that turns out to be false, that they did not intend to deceive anyone? How does this defence assist this individual who will be charged and potentially get arrested and detained before having an opportunity to justify the context in which they posted or forwarded a particular post or comment? What training do police officers have to properly investigate such offences before charging and arresting?
In Eswatini, similar regulations have been enacted. In addition to criminalising publication with the “intention to deceive”, the regulations prohibit people, institutions and organisations from certain activities including “spreading rumours or unauthenticated information about Covid-19”. The provision also prohibits “the use of print or electronic media” for information on Covid-19 “without the prior permission of the minister of health”. These offences carry a significant fine of up to R20 000 or imprisonment for up to five years.
These regulations are prohibitively vague. How will it be determined what amounts to a “rumour” as opposed to opinion? What is “unauthenticated information” and how does one “authenticate” information in the context in which the views of experts on Covid-19 is rapidly changing? There are numerous unresolved questions about Covid-19, many of which leading experts disagree among themselves. The provision requiring prior permission of the minister of health to publish information on Covid-19 prevents the media and individuals from contributing to meaningful dialogue on Covid-19 on public media platforms and constitutes a prior restraint on expression, which is difficult to justify. In Eswatini media freedom is perpetually under threat.
In Zimbabwe, the applicable regulations do not even prohibit misinformation about Covid-19 itself. Under the heading of “false reporting during lockdown” the regulations criminalise the publication or communication of “false news” that is “about any public officer, official or enforcement officer involved with enforcing or implementing the national lockdown in his or her capacity as such, or about any private individual that has the effect of prejudicing the state’s enforcement of the national lockdown”. This means the regulations do not achieve their presumptive purpose: guarding against the dissemination of false information about Covid-19 unless the information is about a particular public official or private individual.
The regulations are overbroad because they criminalise the spread of false information regardless of intention or whether any harm was or could have been foreseen. This means that even in cases where a person has taken reasonable steps to verify information they may still fall foul of the law if the information is determined to be inaccurate by state bodies.
Finally, the sentence prescribed for communicating false information is extremely harsh. A court may impose a fine and imprisonment of up to 20 years. This is 40 times the length of the maximum sentence in South Africa. This amounts to a human rights violation.
Though the regulation of fake news may arguably be legally permissible, none of these provisions are strictly necessary to ensure the protection of public health or proportionate. Less restrictive means, including administrative sanctions, are also available to achieve the same aims without needing to resort to criminal penalties, heavy fines or imprisonment. The regulations in Zimbabwe, South Africa and Eswatini therefore fall short of the requirements international, regional and domestic protections afforded to the right to freedom of expression, and are therefore unlawful.
Self-censorship and expression in the time of Covid-19
Beyond the specific problems with all three regulations the criminalisation of expression threatens to encourage self-censorship of individuals at a time when people are afraid, searching for truth and trying to understand the rapidly changing world.
Though we may be frustrated that some people fail to understand the urgency of lockdown, the importance of social distancing and the fine details of the science of Covid-19, it would be a mistake to criminalise what we may perceive as ignorance. Often such “ignorance” is a situation in which severely limiting circumstances have obstructed the clear transmission of information to people.
Where criminalisation is a state’s chosen path to preventing misinformation, regulations must not restrict freedom of expression beyond what is strictly necessary, reasonable and proportionate.
Author Arundathi Roy says:
There’s really no such thing as the ‘voiceless’… only the deliberately silenced, or the preferably unheard
Governments must ensure that all people are heard as much as possible during Covid-19. Deliberate silencing in the time of Covid-19 will not serve the interests of public health or constitutional democracy. – M&G.
Timothy Fish Hodgson, Nokukhanya Farisè and Justice Mavedzenge work for the Africa team of the International Commission of Jurists.