By James de Villiers for Business Insider SA
Media law experts believe WhatsApp admins in SA may be held liable for false information shared on their groups.
However, they would need to know that the information being shared is false, and do nothing about it.
Knowingly sharing fake news is a crime subject to 6 months imprisonment under SA’s Covid-19 disaster regulations.
Administrators of WhatsApp groups in South Africa may be held criminally liable if fake news is shared in the group, but only if they are aware that the information being shared is incorrect.
Under South Africa’s coronavirus disaster regulations, spreading false information, colloquially known as fake news, about the novel coronavirus and Covid-19 with intent to deceive is a crime with up to 6 months imprisonment.
PPM Attorneys communications lawyer Lucien Pierce believes Whatsapp group administrators who were aware that false information is being shared may also be held liable.
Pierce said the disaster regulations, however, make it clear that the fake news has to be spread with malicious intent, and therefore the administrator will have to know that the information being shared is false.
“Many people, like my mom, share many things during the course of a day which is false but which they do not know is false, and they, therefore, cannot be found liable,” Pierce told Business Insider South Africa.
“The same is true for an administrator: they would have to know that the information being shared is false. If they do not correct the information, or do nothing to stop it, they can then be held liable.”
Von Seidels copyright lawyer Salomé le Roux explained that a precedent has been set in South Africa where a court held a person who was tagged in a defamatory Facebook post jointly liable for the defamation in the post.
She said the ruling meant that anyone who participates in the publication or is part of the “publication chain” of defamatory material – or, under the disaster regulations, spreading of fake news – can be held liable.
A WhatsApp administrator is deemed to part of the “publication chain” as they are deemed to have created the group and has control over who is added and what is posted there, Le Roux told Business Insider South Africa.
“If someone [therefore] posts something defamatory [or false] and the WhatsApp admin sees it and does nothing, it is the same as if he was tagged on a defamatory Facebook post, but did not remove the tag and remains associated with the post,” Le Roux said.
Webber Wentzel media law expert Dario Milo said it is highly unlikely that someone will be held liable as the intent to deceive needs to be proved.
“[Only] once an administrator has knowledge that someone has posted fake news, and does not act to remove it from the group, he or she will be at risk of contravening the [disaster] regulation,” Milo said.