A message doing the rounds on WhatsApp claims that the South African government has banned everyone but its own departments from providing updates about COVID-19 and the coronavirus that causes it.
The message encourages administrators of WhatsApp groups to re-post the misleading information to their groups.
It goes on to refer to earlier news reports that WhatsApp group administrators may be held liable for messages posted in their group chats.
The text in the image being passed around is as follows:
Mandate To All Residents. Tonight 12 (midnight) onwards Disaster Management Act has been implemented across the country. According to this update, apart from the Govt department no other citizen is allowed to post any update or share any forward related to Coronavirus and it being punishable offence.
Group Admins are requested to post the above update and inform the groups.
No ban on posting COVID-19 updates
Social media law expert Emma Sadleir debunked this hoax, telling MyBroadband that government has “absolutely not” banned ordinary citizens (or the media) from posting updates relating to the coronavirus.
Sadleir said that while freedom of speech is not an absolute right, everyone in South Africa remains free to post and forward legitimate news around COVID-19.
“The right [to freedom of speech] may be limited when it comes into conflict with other rights, such as the right to privacy, dignity, or equality,” she said.
False and misleading information about COVID-19 criminalised
What the South African government has done is introduce a temporary criminal offence to fight fake news about the coronavirus.
“Government introduced a ‘narrow’ criminal offence in the Regulations of the Disaster Management Act, which allows offences to be introduced to combat conduct which could escalate the crisis,” Sadleir explained.
“The so-called fake news criminal offence states that a statement must be circulated with the intention to deceive.”
Sadleir noted that this only relates to fake information about COVID-19, government’s actions to combat COVID-19, and the COVID-19 status of a person.
Are WhatsApp group admins liable for all messages posted to their groups?
Regarding the claim that WhatsApp group admins would be held responsible for misleading messages posted by others to their groups, Sadleir said that the issue is nuanced.
“I do not believe a WhatsApp admin can pre-emptively be held responsible for content circulated,” she said.
“Firstly, because the primary liability should lie with the actual author or publisher—who is not anonymous because we have a cellphone number—and secondly because it’s not possible for the admin to delete others’ posts.”
However, WhatsApp group admins must take steps to ensure that the platform is not abused.
This includes having group guidelines, removing people who do not play by those rules, correcting fake news as soon as possible, and educating the members of the group.
“I believe the administrator would only be responsible if they themselves posted the illegal material or encouraged the posting of illegal material and took no steps to limit the effect of any illegal material circulated,” stated Sadleir.
Why WhatsApp group admins may be held liable for misinformation
The argument that a WhatsApp group admin can be liable for content others post in their channel is because they provide a kind of noticeboard where the defamation, fake news, or other illegal content is published.
“There is a very very old case in South Africa where the manager of a golf club was held legally responsible for a posting on the golf club noticeboard,” said Sadleir.
“The poster was anonymous and the manager hadn’t removed the posting as soon as he became aware of it.”
Sadleir explained that a WhatsApp group is the same as any other public platform.
“As soon as content is published on a WhatsApp group it is treated as if it has been published on the front page of the newspaper.”
She said that all elements in the chain of publishing illegal content are responsible for the publication.
“In a newspaper, that would be the source, the journalist, the editor, the newspaper company, even the printer and seller.”
For online content, it would be the author, the website, and the Internet service provider who are all responsible.
“Basically anyone who has the power to delete, stop, or disassociate themselves from illegal content is responsible.”