Spreading fake COVID–19 information could attract criminal charges

It was widely reported in March 2020 that Regulation 5 of the Disaster Management Act Regulations provided that “anyone that creates or spreads fake news about COVID-19 is liable for prosecution”. If found guilty of spreading such false information with the intention to deceive, the penalty would be a fine or imprisonment for six months, or both.

The public was cautioned to verify any COVID-19 related information before sharing it with others. The purpose of this regulation was quite clear – it was designed to prevent the spreading of misinformation, fake news, falsehoods or lies which would cause others to be misled or deceived to the extent that they refused to be vaccinated against the COVID–19 virus.

The anti-vaxxers pay no heed to the evidence that the available vaccines have provided a high degree of protection from this extremely transmissible and often deadly disease. Neither the scientific and medical research nor the evidence in support of vaccinations has had any impact on the anti-vaxxers.

Despite the requirement that information relating to COVID–19 must be verified before it is disseminated, there are a large number of anti-vaxxers who simply refuse to acknowledge that they have may not mislead others by sharing their misinformed, unscientific and life-threatening views. In so doing they deliberately foment a cult of arrogant ignorance which –  based on the most recent American figures which show that the vast majority of people who have succumbed to the virus were not vaccinated – has cost many lives across the world.

Given the fervour with which the campaigns are driven on social media, and in person during demonstrations, it is clear that neither science nor reason will prevail.

Apart from insisting that they are the ones who know the truth, they claim that they have the right to free speech and may therefore freely share this “truth” with the world at large.

The fact of the matter is, however, that freedom of speech is not an unfettered right. In this regard the Constitutional Court held in the matter of Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another (CCT201/19) [2020] ZACC 25 that:

“… the right to freedom of expression is … not an unfettered or an unqualified right.  Further, it does not rank higher than other rights in our Bill of Rights…”

During the past almost 18 months the anti-vaxxers have had a field day, spreading information such as that there is “no virus”, that it is nothing more than a bad dose of flu, and that the life-saving vaccinations are “toxic”. This mantra is not borne out by the facts.

It is estimated that during this period at least 4,54 million people worldwide have died after contracting the virus.

As Satya Sagar succinctly put it in his Daily Maverick opinion piece on 1 September 2021:

“Unfortunately, the only alternative to the vaccine at the moment seems to be the ventilator.”

According to a study conducted in America, COVID-19 patients who end up on the ventilator, do not have a particularly strong chance of survival.

While reports show that nearly all COVID deaths in America occur among the unvaccinated, there is no evidence globally that anyone who was vaccinated has died because of the vaccination.

The concerted campaign to put a stop to vaccinations has been reasonably successful given that the South African government has not actively utilised its authority in terms of Regulation 5 to prosecute the disseminators of such unscientific theories.

It would, however, appear that the time has now come where the government is about ready to turn to the law to put a stop to the dissemination of information that is harmful to millions of people in South Africa.

In late August 2021, Health minister Joe Phaahla said that the fake news campaign to discredit vaccinations was “very strong, orchestrated and organised”.

Phaahla gave a clear indication that anti-vaxxers who spread misinformation or fake news on social media as to why people should not be vaccinated, may soon be criminally prosecuted. Referring to videos circulating on social media in which it is claimed that everyone “who is vaccinated will be dead in two years’ time”, Phaahla said it would be easy to identify the persons behind these videos and to take steps against them.

Retired Constitutional Court justice Edwin Cameron said the vaccination should be made mandatory as that would create a legal norm “that embodies a standard” which would eventually result in compliance.

Given the government’s move in the direction of a “vaccination card” to obtain access to public places and functions, together with the threat of criminally prosecuting those who deliberately spread misinformation about vaccinations, it would seem that the net is closing around those people who actively encourage others to risk their lives rather than to protect themselves, their loved ones and anyone else with whom they may come in contact.