Online access to and distribution of information has become an integral part of society. This enhances public awareness and transparency, but false information can cause uncertainty and disruption. This article explores how the spreading of false information, or so-called “fake news”, may entail legal liability for WhatsApp users and group administrators.
The Constitution of the Republic of South Africa, 1996 (“Constitution”) protects the rights to freedom of expression and access to information. However, these rights may be limited under s 36 of the Constitution, if the limitation is reasonable and justifiable. The Constitutional right to freedom of expression may be limited to curtail the spreading of fake news.
Regulation 11(5)(c) to the Disaster Management Act 57 of 2002 criminalises the publishing of a statement through any medium – including, but not limited to, WhatsApp groups – if the statement was published with the intention to deceive the recipient(s) about Covid-19, or any person’s Covid-19 infection status or the state’s measures to manage the Covid-19 pandemic. Statements made with the intention to deceive are punishable by a fine or imprisonment of up to six months, or both.
The regulation specifically requires an intention to deceive. In other words, one cannot be held liable for negligently spreading fake news. Although liability requires intent, and not merely negligence, the distinction between the two forms of fault can be slight, because intention can also exist in the form of dolus eventualis, where the spreader of the news does not know for a fact it is fake news, but foresees the possibility of it being fake and accepts this and carries on to spread the news. The recipient(s) of the message do not actually have to be deceived; the intentional spreading of false information relating to Covid-19 by itself constitutes an offence.
The courts have accepted that a message or posting on the internet or social media constitutes a publication that can give rise to liability for defamation (Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’ Association 2014 (2) SA 569 (GJ); RM v RB 2015 (1) SA 270 (KZP); Heroldt v Wills 2013 (2) SA 530 (GSJ)). Likewise, an electronic message or posting on Covid-19 related matters by a WhatsApp user can constitute an offence under Regulation 11(5)(c) to the Disaster Management Act 57 of 2002.
Furthermore, a person who creates the opportunity for or controls messages or postings on social media can be liable for defamation (Dutch Reformed Church Vergesig v Sooknunan 2012 (6) SA 201 (GSJ)). In Isparta v Richter 2013 6 SA 4529 (GP) the court held the person who posted a defamatory statement on Facebook liable; and also imposed liability on the second defendant – a person who was merely tagged in the defamatory statement. In paragraph 35 of the judgment the court said: “… the second defendant is not the author of the postings. However, he knew about them and allowed his name to be coupled with that of the first defendant. He is as liable as the first defendant.” On the same principle a person who creates the opportunity for or controls messages on social media could be held liable for the intentional spreading of false information relating to Covid-19, under Regulation 11(5)(c) to the Disaster Management Act 57 of 2002.
Will a WhatsApp group administrator be liable for fake news messages posted by other group members?
A WhatsApp group administrator has the power to add or remove other group participants as co-administrators of the group, to remove himself or herself as group administrator, and to add or remove any of the group members from the group. However, the group administrator does not have the power to delete or edit messages from other group members or to prevent that other members of the group forward group messages to users outside the group.
South African courts have not yet decided on liability of a WhatsApp group administrator for the content of messages posted by other group members. There is a risk of liability where a group administrator is aware that information relating to Covid-19 posted by another group member is or may be false, but takes no steps to have the post removed and to prevent further spreading of the false information.
To guard against potential liability for fake news posted by WhatsApp group members the group administrator should use whatever of the following control measures that will be appropriate:
All WhatsApp users and group administrators should avoid posting and forwarding messages containing incorrect information. Information without verifiable source references is often indicative of fake news.