Regulations affecting communications
By Lazola Kati
The coming of the covid-19 pandemic has brought much insecurity and need for reassurance from all spheres of the government. It has also required new regulations, editions on old regulations and clear enforcement of regulations. Whilst these regulations are vital there must be caution not to be too stringent in violation of human rights and the fundamental fabric that forms our social contract as a society. Two particular regulations that the government has released are; Regulations on section 27(2) on disaster management act of 2002 and the regulation on criminalizing disinformation and misinformation, with the former receiving edits and the latter being new.
The Regulations on section. 27(2) on disaster management act of 2002, are a practical approach to dealing with the pandemic, the regulation first defines essential services, essential goods well. The regulation then focuses on limiting freedom of movement reasonably enough, however the regulation doesn’t seem to take into account professionals that need to travel for work beyond metros and provinces. Professional artists and journalists, specifically freelance journalists will be heavily affected economically as no living can be made and they seem to be excluded from the compensation plans as well. Whilst there is a need to limit freedom of movement as highlighted by the government it is vital to highlight this exclusion mentioned above. It leaves families struggling and leaves a population of the country out.
The limits that have been set on movement also limit journalists from continuing the work of being information; drivers, disseminators and holding the government accountable and asking the relevant questions which creates a society that has a call and response between its government and its citizens, this makes for a working social contract.
Perhaps these are the parts that can be looked into as the regulation also stipulates the minister may make further edits to the regulation as the shutdown progresses.
The regulation then moves to the “Prohibition of public transport”,this section stipulates all forms of transport should cease to operate aside from if they are operating on transporting essential work employees. This section also stipulates only 50% of the form of transport should be filled to allow for health regulations to be maintained. The regulation also places responsibility on employers to organize transport for employees that are unable to have transport. This is a fair responsibility that is a true reflection of a democratic country rather than the status quo capitalistic way of dealing with such instances.
The regulation proceeds to highlight the role of police and expresses that no compensation will be given for loss during law enforcement. This part of the regulation is well dangerous, South Africa already struggled with police brutality, and true to form we have seen videos of extreme police violence during the time of the shutdown, just three days into the shutdown there were 10 cases reported to IPID. This proves the danger of abandoning accountability and instead justifying violence.
The regulations are clear and very important for this period and perhaps some of the parts of the regulation can be adopted when normality returns. Especially sections of the regulation where we finally see the government take responsibility for the homeless, something we have not seen the government do. However some parts of the regulations if to be implemented need better praxis.
The second regulation the government was quick to put into play through the Department of Cooperative Government and Traditional Affairs was the criminalising of disinformation and misinformation.
This regulation is founded on a good principle of avoiding fake news spreading and thus creating hate speech which is in essence meant to cause harm such as stigma which results in hysteria and potential violence. This we saw in the xenophobia outbreak that started with fake news being spread on many African nationals in social media and other platforms which saw movements being formed by widespread violence.
This regulation also comes at a good time when fake news was already making rounds.
The new regulations prohibit deliberately infecting others with the coronavirus, or spreading fake news about the virus. The importance of this has been highlighted many times it is welcomed that the government has finally taken a step in this direction as previously we have had to rely on laws on defamation laws.
The relevant provisions of section 11 of the new regulation on fake news and misinformation state that, “Any person who publishes any statement, through any medium, including social media, with the intention to deceive any other person about: (a) Covid-19; (b) Covid-19 infection status of any person; or (c) any measure taken by the Government to address Covid-19, commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding six months, or both such fine and imprisonment.”. The regulation speaks to such violation occuring even on all social media platforms and all platforms extended.the offence of spreading fake news is not conditional on being the originator of the fake message, unless you can prove a lack of intention or deliberate act to deceive another person. Be careful though: you may still be convicted for the offence under indirect intention (dolus indirectus) or eventual intention (dolus eventualis). It will not be enough to argue that you did not have the direct intention (dolus directus) to deceive another person. This then means the spreading/forwarding of chain messages.
Whilst it is important to stop tbe spread of disinformation and misinformation, it is also important to educate. The South African government is responsible for releasing this policy however there must be caution on criminalizing a public before thoroughly educating the public. In a joint statement on March 19, David Kaye, the UN Special Rapporteur for the promotion and protection of the right to freedom of opinion and expression, and his counterparts in the OSCE and IACHR, expressed their agreement of the importance of ensuring disinformation does not occur especially for ensuring the right to health, the statement also highlighted “Any attempts to criminalize information relating to the pandemic may create distrust in institutional information, delay access to reliable information and have a chilling effect on freedom of expression,”. This is very important for all governments to understand and look into during this pandemic and after.
The statement also highlighted the importance of journalists and organs of information, and expressed the importance of journalists being included by governments in providing access to information. This has been slow and quiet in being implemented by the South African government. Journalists seemed to have been excluded particularly when they perform such an important function which is to “inform the public of critical information and monitor government actions” the statement said.
These regulations are vital and clear in their principle however we see freedom of expression violations in many parts of the regulations. Parts that limit accountability and exclude important participators in our democracy. It would be key for the government to look into these.
