Fake News and Your Right of Recourse?

We are taught from a young age not to believe everything we read. Why does that change as we grow older?

With the infinite number of misleading stories and clickbait, we have all become victims of “news” that’s neither newsworthy nor true. And the question on our lips is – how did we get ourselves into this sleuth type mystery?

Propaganda, misinformation, fake news – call it what you will – but we have seen the havoc it can wreak on society at large who are all already riled up on pent-up aggression and anxiety just looking for a reason to be polarised.

The thing is – as adults – we know the difference (or should) between what is real and what is fake. Shouldn’t we? Or have we all become so misled by make-believe that we cannot see the forest for the trees? This isn’t a blame game. It’s a simple fact. Because who else do we have to blame for believing in the misinformation that’s floating around in the ether, in the soundwaves, in the radio waves, in our own heads?

Could it possibly be the media in whom we trust to report the truth? Could it be the social media giants who are supposed to police what is published on international platforms? Or is it up to us to monitor what we expose ourselves to? And what is our right of recourse?

What are mis-dis and mal-information?

Before getting into the crux of who is responsible for spreading truthful and accurate information to the masses, it’s probably a good idea that we understand what these concepts mean.

According to the Council of Europe, the terms ‘propaganda’, ‘misinformation’ and ‘fake news’ often overlap. They’re used to refer to a wide range of ways in which sharing information causes harm - intentionally or unintentionally – usually in relation to the promotion of a particular moral or political cause or point of view.

It’s possible to separate out three clearly different uses of information which fall into this category:

·       Mis-information - false information shared with no intention of causing harm.

·       Dis-information - false information shared intentionally to cause harm.

·       Mal-information - true information shared intentionally to cause harm.

We have all heard these terms before. Probably multiple times. They’re nothing new. But they’ve taken on an almost sinister, new significance recently with the widespread availability of sophisticated forms of information and communication technology. The sharing of text, images, videos, endless social media and available apps or links online, allows information to go viral within hours.

And this is especially true for the younger generation who have grown up with things like the internet and social media. In fact, being online is central to their lives, and they are particularly vulnerable to propaganda, misinformation, and fake news. As many parents will know, the younger generations spend a significant amount of time watching television, playing online games, chatting, blogging, listening to music, posting selfies, and searching for other people to connect with. They also rely heavily on information circulated online for their knowledge of the world and how they perceive reality. As a result, they are easily manipulated and easily led down the misinformation path.

This was especially predominant in South Africa during COVID, when The South African National Editors’ Forum released a statement which set out the following paragraph –

“We wish to caution against the spread of news intentionally misleading the public which has become an increasing problem for the functioning of our democracies, affecting individuals’ understanding of reality.”

A notion we believe is still applicable – probably even more so – today.

Misinformation during elections

Misleading the public causes instances of problems for democracies (as stated above) is especially true when it comes to elections.

Misinformation can not only fuel unrest but can also compromise the credibility of the election itself. And it stands to reason really. Think about it. If society is misled about what a political party stands for or if we cannot verify the claims made by certain political parties during their campaigning, then how are we to know Arthur from Martha? Voting – in fact – becomes almost redundant.

The use of digital media has seen a corresponding surge in digital misinformation – particularly on social media platforms – where the Electoral Commission of South Africa put it -

“dissemination of disinformation has the huge potential to undermine the fairness and the credibility of elections”.

Misinformation and disinformation during electioneering is common worldwide. And they are not just an abstract threat – something out there in the ether - it’s something real, something distinct. It’s a force that’s capable of undermining citizens and their constitutional right to vote. Misinformation can warp perceptions, manipulate voter turnout, and distort the playing field, leaving certain political groups disadvantaged. This is especially alarming when we consider the role social media platforms play in shaping open dialogue and communication amongst groups of people. Their algorithms, moderation policies, and responses to electoral disinformation can significantly influence what millions of voters see and believe. Why? Because most (and yes, not all) get their news from the social media platforms.

At the heart of this issue is the challenge posed by disinformation’s sheer scale and sophistication. Whether it’s AI-generated fake news – where it’s often times hard to know truth from lies - manipulated political ads, or outright ruses, the capacity of online platforms to swiftly detect, evaluate, and neutralise such threats is often put to the test.

So, in 2024, with over 70 countries holding elections – a year with monumental electoral significance – where billions of people rely on social media platforms like tech giants Google, Meta, and TikTok for news and political information, the “Big 3” had to take a stand or face enormous challenges presented by digital disinformation and misinformation.

Acknowledging their potential role in undermining electoral integrity, Google, Meta and Tiktok in demonstrated a commendable initiative with regards to the South African 2024 Elections by collaborating with the Independent Electoral Commission (IEC). Additionally, Meta and TikTok engaged with independent organisations such as Media Monitoring Africa and Code for Africa to facilitate actions such as the removal of content that is false or misleading, advisory warnings, and delistings.

By doing so, they encouraged enhanced cooperation between advertising technology companies and civil society organisations with the aim of upholding free and fair elections.

But - and there’s always a but - situations where Meta failed to remove disinformation under the guise of free speech have run rampant. Not just last year either. And this is especially dangerous when such content targets journalists - undermining the very essence of freedom of the press - which is crucial in the fight against disinformation. By neglecting to robustly address these issues, tech giants like Meta may be inadvertently contributing to the erosion of democratic norms.

Is there a right of recourse?

With social media platforms like Google, Meta and TikTok being the primary places for mis, dis and mal-information being shared, one’s thoughts turn to – well what if something false about me is spread online? How can I combat it?

Well first and foremost, it’s important to remember that there are limits to free speech, and that the right to freedom of expression is not absolute (even if it is a right in our Bill of Rights). Essentially, Meta, and TikTok, or even Instagram may not be the place for a user to say and do as they please, particularly because engaging in such conduct could lead to hot legal water.

In South Africa particularly, social media platforms are regulated in two ways –

1.         Common law - our courts determine disputes on the basis of evaluating whether or not the complainant suffered reputational harm as a result of the publication of the information causing the dispute.

2.         Legislation - legislative regulation considers a wider spectrum of issues, including the protection of personal information (Protection of Personal Information Act, 2013)(POPIA) and prohibition of malicious communications ,as provided in the Cybercrimes Act 19 of 2020 (“Act“). The Act proposes cybercrimes as new criminal offences, including the criminalisation of certain categories of speech online, especially where such speech has been disclosed by means of a data message that causes damage to property or violence (i.e. bodily harm) against a person or group of persons. This type of behaviour is criminalised not only due to the “posters” intention to incite the causing of such damage or violence (Section 14 of the Act) but also on the basis of one’s threat to cause such damage or violence (Section 15 of the Act) or one’s unlawful and intentional conduct in attempting or conspiring to aid, instigate or instruct another person to commit an offence in terms of the Act (Section 17 of the Act). It’s also worth noting that in addition to fake news or mis, dis or mal-information the Act – at Section 16 – also criminalises the unlawful and intentional disclosure of a data message of an intimate image of a person without their consent (i.e. including so-called ‘revenge-porn’). The important bit here is this - malicious communication offences created by the Act are based on intention. So, where fake news is concerned, it’s the disclosure of disinformation that is criminalised by the Act. This exposes one to liability for a fine, imprisonment or both.

And an available right of recourse for wrongful, intentional publication of words or behaviour relating to any other person that injures or demeans such a person’s status, good name, character, and/or reputation is –

Defamation – a form of delict based on the wrongful, intentional publication of words or behaviour relating to any other person that injures or demeans such a person’s status, good name, character, and/or reputation. With fake news and social media, a victim can claim compensation for injury and harm as long as he/she can demonstrate that the published content was wrongful, intentional, and contained defamatory material that refers to them. In Heroldt v Wills 2013 (2) 530 SA GSJ, which was the first South African case involving defamation in social media, the South Gauteng High Court held that the assessment for determining if the content posted has a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the post concerned to convey a meaning that is defamatory. Ms Wills – who was ordered by the court to remove all impugned postings from her Facebook and any other social media sites referred to by the applicant – was the creator of the defamatory post. But it’s important to note that you don’t have to be the creator of the defamatory post to be held liable for the post.

In the matter of Isparta v Richter and Another 2013 (6) 529 (GNP) the court confirmed that if one is aware of the fact that he/she is tagged in a potentially defamatory post, and that person makes no effort to disassociate from such a post, then that person may be held equally liable as the person who created the post. This means that anyone found to have contributed to false or defamatory content (including the dissemination of such content) may be held civilly liable for defamation, even if such content constitutes mal-information or misinformation.

While common law, the Act and POPIA (as well as delictual remedies) help victims of mis, dis or mal information, the question as to who’s responsible for the proliferation of fake news has a really big question mark over it. Are we so far gone as a society that we cannot decipher between right and wrong? Do we not care what is truth and what is a lie? Will we share anything? We’re not sure. What we do know is that the algorithms certainly don’t work in any of our favours. Like one political post and suddenly you’re inundated with hundreds of posts about political activism, who’s the right leader who isn’t. Which societal minority is most in need of help, and which should be slandered. We get so caught up in our own heads and get reeled in by the “personal” heart-breaking stories that suddenly all truth is thrown out the window. Whether that heartbreaking story is real or not is irrelevant.

While social media platforms can take a more active step than simply moderating what information is posted – like they did with the 2024 South African election – it’s up to us to understand that with freedom of speech there comes a corresponding right to privacy. And with that we are able to – if it can be substantiated – protect ourselves from mis, dis- or mal-information with delictual remedies. If the need arises.

What is clear above all else is that the battle against mis, dis and mal information cannot be fought by social media platforms alone. Governments, civil society, and international bodies all have a role to play in safeguarding our journalists, our newsrooms, our news platforms from information that can cause harm. It’s also up to us to know when to unfollow, delete, unlike and to properly decipher between what can be said on an open platform and what should just be left inside our own heads.

Although we have taken the utmost care to ensure that this information is correct, we urge you to consult with a suitably qualified legal practitioner who will be able to answer any questions you may have on defamation, or other instances of mis, dis or mal-information on social media and other online platforms. In this regard, we would be more than happy to support you. Please feel free to contact us to see how we can best assist.

We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart!

(Sources used and to whom we give thanks – Brookings; Council of Europe; SANEF; Good Governance Africa; USC Today; Electoral Commission of Southern Africa; Legal Resources Centre and Werksmans).