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COVID-19 AND FREEDOM OF SPEECH – BLC Attorneys | Port Elizabeth

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COVID-19 AND FREEDOM OF SPEECH


As a citizen in a democratic country like South Africa, one is entitled to freedom of speech. It is a right provided for in Chapter 2 of the Bill of Rights, as contained in the Constitution of the Republic of South Africa (“the Constitution”).

Section 16(1) of the Constitution provides that:

Everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.”[1]

However, there is a limitation on such freedom of expression contained in section 16(2) which provides that:

The right in subsection (1) does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm…”[2]

The Constitution also contains a general limitation clause contained in section 36 which provides that the rights conferred by the Bill of Rights may be limited if such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

As the COVID-19 pandemic has spread across the globe and is now within our borders, there is understandable panic and fear going around which often amounts to any or all information received regarding COVID-19 being shared across all social media platforms, i.e., WhatsApp, Facebook, Twitter etc., and more often than not the information comes from unreliable or unsubstantiated sources. Sharing this information or passing it on can be problematic if it transpires that it is not factually correct.

In South Africa’s attempt to deal with the global pandemic, the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, has in terms of section 27(2) of the Disaster Management Act, 2002, set out Regulations setting out steps deemed necessary to curb any preventative escalation of the disaster or to alleviate, contain and minimise the effects of the disaster.

When it comes to sharing of information, one must specifically take note of Section 14(2) of the Regulations which provides that:

14(2) 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.

To be convicted for contravening the abovementioned legislation one would need to have the intention to deceive the receiving party, with whatever information is being shared.

Recently this section of the Act was invoked when a Cape Town man was arrested and charged under Section 11(5)(c) (now 14(2)(c)) after sharing a video of himself, claiming that the cotton swabs used to test patients for COVID-19 was already contaminated with the virus. This was not true. He urged South Africans not to let the Government test them.

There was a clear intent to deceive the parties who would receive the message. This is known as dolus directus in South African criminal law. If, before posting, he had foreseen that the receiving party may be deceived by the information he would be posting, and then he reconciled himself to such possibility and then went through with posting the video, he would be considered to have acted with the necessary intention. This is known as dolus eventualis in South African criminal law.

With the new Regulations that have been set in place, think twice before clicking that “forward” or “share” button.

To obtain true and correct information, one can tune in to your local news channel or visit the following websites:

http://www.health.gov.za/index.php/outbreaks/145-corona-virus-outbreak/465-corona-virus-outbreak

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

https://www.sacoronavirus.co.za/


[1] Section 16(1) of the Constitution of the Republic of South Africa, 1996.

[2] Section 16(2) of the Constitution

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